Reedy v. Millizen

• Decision Date: 14 January 1895
• Citation: 155 Ill. 636,40 N.E. 1028
• Parties: REEDY et al. v. MILLIZEN et al.
• Court: Illinois Supreme Court

155 Ill. 636

40 N.E. 1028

REEDY et al.

v.MILLIZEN et al.¹

Supreme Court of Illinois.

Jan. 14, 1895.

Appeal from circuit court, Moultrie county; Edward P. Vail, Judge.

Bill by Laura Reedy and Lillie M. Wilkins against John Millizen and William Elder. Defendants obtained a decree. Complainants appeal. Affirmed.

R. M. Peadro and Jas. F. Hughes, for appellants.

John R. & Walter Eden, for appellees.

PER CURIAM.

Appellants claim as heirs at law of Ira A. A. W. Camfield, who is conceded to have been the owner of the land in controversy. The bill is to redeem from a sale and deed by a trustee, under a trust deed executed by Camfield, dated March 1, 1875, made April 29, 1878, and to set aside a subsequent conveyance by the purchaser at such sale to appellee. The bill was filed less than three years after appellants attained their majority, so that the statute of limitations would not run against them, unless it had commenced to run during the lifetime of said Camfield, under whom they claimed title. If the statute of limitations had begun to run during the life of the ancestor, Camfield, it is too familiar to require the citation of authority that his death and the descent to his minor heirs of his rights and equities in the land would not interrupt the completion of the bar, and that a court of equity will, in obedience to the statute, and by analogy to proceedings at law, give effect to the limitation. This is conceded practically, and, to avoid the effect, it is contended that Camfield died prior to the sale and deed by the trustee, April 29, 1878, or at least prior to the subsequent conveyance to appellee Millizen. His death is not shown, but it is insisted that, he having been absent and not heard from for seven years, the presumption of life is overcome; and, there being in such case no presumption as to what time within the seven years death occurred (Johnson v. Johnson, 114 Ill. 611, 3 N. E. 232), the facts shown were sufficient to raise the presumption of fact that he died before the said conveyances respectively, that is, that Camfield having been so long absent, without having been heard of or from, the presumption of his death arose; that the fact shown raised the further presumption that the death occurred on or about January 1, 1878, and prior to the making of said trustee's sale and deed; and that the title of Camfield having devolved by descent upon appellants, and they being under disability, the statute did not commence to run. The rule is well established that absence for seven years, without the whereabouts being known, and without having been heard from during that period, raises, at the expiration of that time, the presumption of death. Whiting v. Nicholl, 46 Ill. 237; Johnson v. Johnson, supra; Lawson, Pres. Ev. rule 43, and cases cited. When, however, a thing is shown to exist, its continuance is presumed until the contrary is shown or a conflicting presumption arises. Hence, unless it be shown that death occurred prior to the expiration of the seven years' absence, or some conflicting presumption arises from the facts proved which would overcome the presumption of the continuance of life, the presumption of life would obtain until the full expiration of the period, when the contrary presumption of death, from the continued absence, would arise. While, therefore, it is true that there is no presumption that death occurred at any particular time within the seven years, it is also true that, in the absence of contravening facts of controlling presumptions, it will be presumed that life continued during the entire period. Clarke v. Canfield, 15 N. J. Eq. 119;Montgomery v. Bevan, 1 Sawy. 660, Fed. Cas. No. 9,735;Burr v. Sim, 4 Whart. 150; Eagle's Case, 3 Abb. Pr. 218;Hancock v. Insurance Co., 62 Mo. 26;Dean v. Bittner, 77 Mo. 101; Hope-well v. De Pinna, 2 Camp. 113; Whiteside's Appeal, 23 Pa. St. 114.

The various courts found it necessary to establish an arbitrary period upon the expiration of which death would be presumed, and it has fixed a period of seven years, probably as analogous to and in harmony with the statute of 1 James I. c. 11, §§ 2, 19, and Charles II. c. 6; the former providing a like period where the wife might marry upon continued absence of the husband, and the latter to obviate the necessity of establishing the death of cestuis qui vie in certain cases. Lawson, Pres. Ev. 202. No discussion will be necessary of the reasons for the establishment of the rule. At the expiration of seven years the presumption of death arises by law, so that the absentee is to be treated and accounted as dead, just as the common law regarded him as living until death was proved. In neither case is life or death actually proved, but he is accounted as living until, by reason of his absence, he is presumed to be dead; and, as a matter of right and of equity, the relations of parties affected by his life or death are to be determined by these technical presumptions. It follows, necessarily, that the presumption of the continuance of life may be overcome by proof of facts and circumstances raising a contradictory presumption, or by stronger conflicting presumptions; as where the presumption of innocence conflicts with the presumption of life, in which the latter gives way, and the presumption of innocence obtains. Johnson v. Johnson, supra. So, if circumstances be shown which will be deemed sufficient to raise the presumption of death before the expiration of the seven years' absence, or at any particular time within the seven years, the presumption of life will be overcome. Mr. Lawson, in his work on Presumptive Evidence,in stating what circumstances, if proved, will overcome the presumption of the continuance of life, lays down the following rule: ‘Rule 49. That within that time he was in a desperate state of health. * * * Rule 52. That his habits, character, domestic relations, or necessities would have made it certain that, if alive within that period, he would have returned to or communicated with his residence, home, or domicile.’ Numerous others are given, but these alone are applicable. The subject is usually one of considerable difficulty, but must be determined by a consideration of the facts proved and the natural and legitimate inferences arising therefrom. The condition of health of a party when last seen or heard from always becomes an important subject of inquiry. If the party is afflicted with some disease liable to immediately produce death, or some specific malady which would necessarily undermine and destroy health and life, the presumption of an early dissolution would be greatly increased. So, the age, habits of life, habits as to the use of stimulants or drugs, and indeed any conditions from which a presumption as to the continuance or destruction of life would arise, are proper to be considered. So, also, where one has lived an upright life, and enjoyed the confidence of his acquaintances, successful in business, attached to his family, contented and fond of the associations of home, it is to be fairly presumed that, if alive, he would speedily return, or at least communicate with the objects of his affection. On the other hand, if his relations with his family were strained, if he was in straitened circumstances, unhappy, and discontented with his surroundings and associations, the likelihood of his return or communication would naturally be much lessened. The natural inference arising in one case would be opposed to that arising in the other. And a proof of one would tend to overcome the presumption of life. Proof of the other might, to a greater or less degree, when considered in connection with the traits of character and habits of the particular person, tend to strengthen that presumption, or at least fail to create a contrary presumption. Webster v. Birchmore, 13 Ves. 362; Hall's Deposition, 1 Wall. Jr. 85, Fed. Cas. No. 5,924; Tisdale v. Insurance Co., 26 Iowa, 170, and authorities supra. We are unable to say, as the trial court was unable to find, that the facts proved overcame, and indeed tended to rebut, the presumption of the continuance of the ancestor's life. No extended analysis of the evidence will be necessary.

It appears that about September 19, 1877, Mr. Camfield, who had been a farmer, and some time before that date had moved into the town of Sullivan, left his home and family with the avowed purpose of going to Shelbyville, nor far distant, to try certain baths reported to be in operation there, to be relieved of ailments of which he complained. In respect of his physical condition, then, there is some conflict in the evidence. The weight of evidence, when the means of knowledge of the various witnesses is considered, is that he was suffering from slight dyspepsia, and his prospect of continued health and life was such as is usual in that class of afflictions. One of the physicians testified: ‘There was nothing in his appearance that indicated early or speedy death, and his prospect of life was ten or fifteen years.’ It appears with reasonable certainty that he had been twice poisoned with strychnine, the occasions being some years apart, on both of which he was attended by Dr. Marshall, the last occurrence being a month or two before he left home. This latter physician saw nothing in Camfield's condition that would indicate that with proper treatment he would not live a number of years. The proof, while perhaps creating some grave suspicions that the poison had been administered to him, does not satisfactorily show how or why he was poisoned. It would seem that all of the evidence tending to show that he was in bad health could readily be attributed to his dyspeptic condition, aggravated, it may be, by his recent poisoning, but from the effects of which he had apparently recovered. A day or two after his departure from home, he wrote four letters from Shelbyville,-one to his wife, one to his son-in-law, Mr. Fuetz, one to Conrad, his...