Sielbeck v. Grothman

• Decision Date: 25 February 1911
• Citation: 248 Ill. 435,94 N.E. 67
• Parties: SIELBECK v. GROTHMAN et al.
• Court: Illinois Supreme Court

248 Ill. 435

94 N.E. 67

SIELBECK

v.GROTHMAN et al.

Supreme Court of Illinois.

Feb. 25, 1911.

Appeal from Circuit Court, Massac County; W. W. Duncan, Judge.

Action by Henry Sielbeck against Kate Grothman and others. Judgment for defendants, and plaintiff appeals. Affirmed.

C. L. V. Mulkey and Fred R. Young, for appellant.

H. A. Evans, for appellees.

CARTER, J.

This is an action of ejectment brought by the appellant, Henry Sielbeck, against appellees, Kate Grothman, Fritz Grothman, and others, in the circuit court of Massac county. A jury was waived and the cause tried before the judge, who entered judgment in favor of appellees, finging them to be the owners in fee simple of the property in question and that they recover from the plaintiff their costs. From that judgment this appeal was prayed.

The 80-acre farm in controversy here is situated in said county. Appellant offered testimony which tended to show that his father, Christian Sielbeck, traced his title through mesne conveyances back to the government; that in 1872, while occupying the farm as his homestead, he died, leaving a widow, Lizette Sielbeck, and four children, Henry, Fritz, and William Sielbeck, and Louise Sielbeck, now Louise May; that the widow, with appellant, continued to occupy the premises until her death, in May, 1900; that she remarried, in the meantime, Ernest Wieneke, who died whortly thereafter, leaving her again a widow; that in 1894 the widow, having become indebted to Hiram and August Quante in the sum of $575.50, gave her note for that amount, payable in 12 months, securing the same by mortgage, in the usual form, upon said 80-acre farm. The record shows that no steps were taken to foreclose this mortgage during the lifetime of the widow, but in the month following her death the mortgagees filed a bill to foreclose at the August term of the circuit court of Massac county. This bill was in the usual form, stating that the widow was indebted to the Quantes in the above-named sum, and to secure the payment thereof had executed a mortgage conveying said 80-acre farm ‘in fee, subject, however, to a condition of defeasance upon the payment of the principal sum of money and the interest,’ etc.; that on May 5th she died intestate and left her surviving the four children named above as her only heirs at law; that these heirs had an equity of redemption in said farm, and they were therefore made parties defendant. It is conceded by the appellant that he and his brothers and sister properly waived service of process by entering their appearances in this foreclosure proceeding; that they filed no answer; and that a decree was entered against them by confession, finding the facts alleged in the bill to be true, among other things that said Louise Wieneke was at the time of her death the owner of the lands described in said mortgage, subject to this lien, and that appellant and his brothers and sister, and all persons claiming by, through, or under them, should be forever foreclosed of all equity of redemption and barred from all claim of, in, and to said lands unless the same should be redeemed. The premises were sold by the master in chancery February 2, 1901, and bid in by complainants in the foreclosure proceedings, and subsequently, in May, 1902, the premises not having been redeemed, a master's deed was issued to them and possession taken thereunder. Appellant and his brothers and sister were of age at the time of these foreclosure proceedings and were the only heirs of both their father and their mother. The title which vested in the complainants in that bill under the master's deed was conveyed to John George Grothman in May, 1902, and Grothman at once went into possession, remaining in possession until his death, in June, 1909, and his widow and children continued in possession up to the time of this litigation, and are the appellees herein. Before commencing this action of ejectment, appellant took conveyances to himself from his brothers and sister.

The appellant contends that he and his brother*s and sister inherited this land from their father; that the mother never had any interest in it beyond her homestead and dower rights; and that the only thing she mortgaged to the Quantes, complainants in the foreclosure suit, was these homestead and dower rights. The only testimony offered in support of the contention that the heirs, and not the widow, owned the fee, was that the father, Christian Sielbeck, obtained brothers and sister inherited this land from government and was living on it and in possession at the time of his death, and that he left as his heirs the persons named. It is argued from this state of facts, by counsel for appellant, that it must be assumed that Christian Sielbeck, his father, died intestate. Whenever the death of any person is shown, until rebutted, the presumption is that he died intestate, and that his estate descends in pursuance of the laws of inheritance. Schmidt v. Brown, 226 Ill. 590, 80 N. E. 1071,11 L. R. A. (N. S.) 457, 117 Am. St. Rep. 261; Warvelle on Ejectment, § 366; Lyon v. Kain, 36 Ill. 362. We think counsel for appellees is mistaken in saying that this court, in St. Louis, Indianapolis & Eastern Railroad Co. v. Warfel, 163 Ill. 641, 45 N. E. 169, held to the contrary. In that case the court simply stated that the plaintiff in the ejectment suit, who claimed title from the widow and the heirs, must prove the death of the ancestor and that the persons who signed the deed were such heirs. The question whether intestacy would be presumed was not there passed upon. That Christian Sielbeck, the ancestor of appellant, died...