Renfro v. Hanon

• Decision Date: 21 April 1921
• Docket Number: Nos. 13733,13734.,s. 13733
• Citation: 130 N.E. 740,297 Ill. 353
• Parties: RENFRO et al. v. HANON et al. SAME v. GREGORY et al.
• Court: Illinois Supreme Court

297 Ill. 353

130 N.E. 740

RENFRO et al.

v.HANON et al.

SAME

v.GREGORY et al.

Nos. 13733, 13734.

Supreme Court of Illinois.

April 21, 1921.

Error to Circuit Court, Hardin County; Charles H. Miller, Judge.

Bills by Grace Renfro and others against Cyrus E. Hanon and others, and by the same plaintiffs against W. G. Gregory and others. The suits were consolidated, and, from a decree dismissing the bills, plaintiffs bring error.

Affirmed.

John C. Oxford, of Elizabethtown, and II. Robert Fowler, of Harrisburg, for plaintiffs in error.

James A. Watson, of Elizabethtown, for defendants in error.

CARTWRIGHT, C. J.

The plaintiffs in error filed in the circuit court of Hardin county a bill for the partition of the minerals, coal, oils, gases, and other mineral substances underlying the southeast quarter of the northwest quarter of section 4, and another bill for the partition of the minerals, coal, oils, gases, and all other mineral substances underlying the northwest quarter of the northeast quarter of section 4, in township 12 south, range 9 east, in Hardin county. They alleged in each bill that they were tenants in common of the land sought to be partitioned with the defendants named in such bill, all of whom derived title through the will of Richard Palmer, and that other persons made defendants in both bills claimed title to the property through an alleged deed of Palmer and wife, but they had no title and their claim of title had been adjudicated against them. The bills prayed that such claim should be removed as a cloud upon the title of complainants, and the controversy related to the validity of the title claimed under the deed from Palmer and wife. These defendants who claimed under that deed answered, setting up their title, and, the evidence concerning the same being identical in the two suits, they were consolidated by stipulation. Upon a hearing the bills were dismissed at the cost of the complainants, who have brought the record to this court by writs of error.

The complainants by their bills claimed legal title to the minerals under the will of Richard Palmer and also title by limitation, and that their title had been adjudicated by this court. The common source of the alleged legal title was Richard Palmer, who on December 16, 1873, together with his wife, in consideration of $1,200, conveyed by deed to R. N. Barbour all the coal, lead, oil, silver, gold, rock, fluids, ores, metals, and all other minerals of every description found in and upon the two 40-acre tracts in question, with the right to mine and remove the same, reserving 5 acres around the dwelling house to be free from mining operations. Palmer died on July 17, 1874, leaving a last will and testament by which he devised the lands by the government description, together with other lands, and the complainants claimed through that will. The complainants failed to prove the legal title alleged, which was in the defendants, who had succeeded to the same under the deed to Barbour.

The complainants also claimed title under the seven-year statute of limitations by possession and payment of taxes under color of title. The will of Richard Palmer was held to be color of title to these lands in Baldwin v. Ratcliff, 125 Ill. 376, 17 N. E. 794, and those claiming under the will had had possession of the surface for the requisite length of time to bar adverse claims. It was alleged in the bills that the minerals and surface in both tracts were assessed together until 1909, when the minerals in each tract were fraudulently assessed separately, and in June, 1911, and again in 1918, they were sold for taxes; that a tax deed was issued in 1913 on the first sale, and the complainants redeemed from the sale made in 1918. Regardless, however, of any question of payment of taxes, it was necessary to prove possession of the minerals, and there could be none in law after the severance. The title to the minerals was severed by the deed from Richard Palmer and wife to R. N. Barbour, and where that is the case the possession of the surface does not carry with it the possession of minerals in place under the surface. By a severance separate estates are created, which are held by separate and distinct titles, and each estate is incapable of possession by the mere occupancy of the other; and this is so even if the instrument constituting color of title purports to convey the whole property, as the will of Palmer did. Catlin Coal Co. v. Lloyd, 176 Ill. 275, 52 N. E. 144;Catlin Coal Co. v. Lloyd, 180 Ill. 398, 54 N. E. 214,72 Am. St. Rep. 216;Lloyd v. Sandusky, 203 Ill. 621, 68 N. E. 154. As a matter of fact, a milling company deriving title from Barbour carried on mining operations in the northwest quarter of the northeast quarter in 1907, 1908, and 1909. The company built a mill on the premises and mined and removed fluorspar and lead, and worked from 3 to 30 men in the mining operations. Disregarding that fact, however, title could not be acquired under the Limitation Act without possession, and there could be no possession after the severance of the estates. The complainants did not prove title under the statute of limitations.

The remaining question is whether the decision of this court in the case of Baldwin v. Ratcliff, supra, was res judicata against the title claimed under the deed to Barbour. In 1883 George W. Ratcliff filed in the circuit court of ...