Sontag v. Bigelow

• Court: Illinois Supreme Court
• Writing for the Court: CRAIG
• Citation: Sontag v. Bigelow , 142 Ill. 143, 31 N. E. 674 (Ill. 1892)
• Decision Date: 18 June 1892
• Parties: SONTAG v. BIGELOW et al.

142 Ill. 143

31 N.E. 674

SONTAG

v.BIGELOW et al.¹

Supreme Court of Illinois.

June 18, 1892.

Error to circuit court, Monroe county; W. H. SNYDER, Judge.

Ejectment by Walter W. Bigelow and Martha Krueger, heirs at law of Walter Bigelow, Sr., deceased, against Theodore Sontag, Jr. Plaintiffs obtained judgment. Defendant briags error. Reversed.

H. Clay Homer and G. L. Reiss, for plaintiff in error.

Hartzell & Sprigg, for defendants in error.

CRAIG, J.

This was an action of ejectment brought by Walter W. Bigelow and Martha Krueger, heirs at law of Walter Bigelow, Sr., deceased, against Theodore Sontag, to recover the W. 1/2 of the W. fractional 1/2 of section 4, township 3 S., range 11 W., in Monroe county, containing 58 acres. On a trial of the cause in the circuit court the plaintiffs recovered a judgment for the land described in the declaration, and the defendant sued out this writ of error. For the purpose of establishing title, plaintiffs read in evidence a deed dated December 1, 1853, from James Moore and wife to N. B. Harlow, conveying the S. W. fractional 1/4 of section 4, township 3, range 11, Monroe county; also a deed dated January 7, 1857, from N. B. Harlow and wife to Alfred and Walter Bigelow, conveying the same land. The plaintiffs then called as a witness Mrs. Means, who testified substantially as follows: ‘Walter Bigelow was my husband, and was the son of Alfred Bigelow, and was the father of plaintiffs. He died before this suit was begun, leaving Ellen and Martha and Walter Bigelow, his children and heirs. Ellen, the oldest, and Martha, were by a former wife. Walter is my child. Ellen is dead. Walter Bigelow, Sr., went into possession of this tract of land in 1857. He paid the taxes till he died, and I paid them after he died till 1868. I then moved to Missouri, and afterwards returned to Randolph county Ill. Walter Bigelow, plaintiff, was born in 1862,-April 15th. Alfred Bigelow and Walter, Sr., divided this land shortly after buying from Harlow. I married Walter in 1861, after the land was divided. Walter took the west part, and Alfred took the east part. Walter built house, well, stable, and smokehouse on this land soon after land was bought, and cleared 25 acres There was a dividing fence. Walter and his family occupied this land until 1868, and paid the taxes.’ For the purpose, we presume, of proving that plaintiffs and defendant claim title through a common source, plaintiffs read in evidence the following deeds: A deed from Alfred and Walter Bigelow and wives to James Cann, of February 5, 1858, conveying S. E. corner of S. W. fractional 1/4 of section 4, township 3, range 11, containing 29 acres. Also, deed from James Cann to R. L. Bigelow, of October 4, 1858, for 29 acres, in last deed. Also, deed from S. W. Means and wife to Joseph McGregor, of November 16, 1870, for S. W. fractional 1/4 of section 4, township 3, range 11. Also, deed from J. Robinson and wife to R. L. Bigelow of February 6, 1863, for ‘our interest in’ same land as last-mentioned deed. Also, deed from R. L. Bigelow and wife to N. B. Harlow, of August 15, 1863, for the 29 acres bought by him from James Cann, (above;) ‘also, the interest of the above-described land, heired by myself and wife; and also the interest deeded me by John Robinson and wife, being the interest of Alfred Bigelow's estate, being 7 1/4 acres, the last two interests; the whole tract containing 116 acres.’ Also, deed from Ezra Bigelow and wife to A. T. Cann, of April 26, 1865, for ‘all my interest in’ said S. W. fractional 1/4, etc. Also, deed from A. T. Cann and wife to B. F. Masterson, of April 6, 1866, for ‘all my interest in’ said S. W. fractional 1/4, ‘it being my interest, and that I purchased of Ezra Bigelow and wife, being 7 1/2 acres, more or less.’ Also, deed from N. B. Harlow and wife to B. F. Masterson, of November 4, 1865, for the lands deeded grantors by R. L. Bigelow, (see deed above.) Also deed from B. F. Masterson to Theodore Sontag, (defendant,) of March 1, 1867, for the following described premises: ‘29 acres in the southeast corner of the southwest fractional qr. of section No. 4, township No. three south, range No. eleven west, being the same conveyed to James U. Cann by Alfred Bigelow and others on the 15th day of February, 1858; also [142 Ill. 149]7 1/4 acres on the above-described fractional section heired by R. L. Bigelow and John Robinson and wife in the estate of Alfred Bigelow, deceased; and also seven and 1/2 acres more or less in the above-described fractional qr. of the above-described section heired by Ezra Bigelow and A. T. Cann in the estate of Alfred Bigelow, dec'd; the whole tract containing 116 acres.’

It will be observed that the plaintiffs did not establish a chain of title from the United States, but the title under which they claim started with a deed from James Moore to Harlow, and this was followed by a deed from Harlow to Alfred and Walter Bigelow. While these two conveyances did not establish title in Alfred and Walter Bigelow, they were, however, good color of title, which, if followed with seven successive years' possession, and payment of taxes, would ripen into title to the premises; and, as we understand the position of plaintiffs, this is what they rely upon to sustain the judgment. In order to establish title under the act of 1839, three things are requisite: Color of title, seven years' possession of the premises, and seven successive years' payment of taxes by the person in whose name the color of title stands. It may be regarded as sufficiently established by the evidence that Walter Bigelow went into possession of the land in controversy in 1857. He continued in possession and paid all taxes until his death, the date of which is not shown. It occurred, however, before the seven years had expired. After his death, his widow and children remained in the possession of the premises, and paid all taxes until 1868, which would make seven years' possession and payment of taxes, and two or three years to spare. But the question arises whether Walter Bigelow and his heirs, while so in possession, and while paying the taxes, had color of title to the entire tract in controversy. Under the deed from Harlow to Alfred and Walter Bigelow, it is plain that Walter Bigelow acquired color of title only to the undividedhalf of the premises, and upon his death that only descended to his heirs, the plaintiffs, and it nowhere appears that he ever received any other deed of the premises, or any part thereof, from any person. But it is said that, after Alfred and Walter Bigelow received a deed from Harlow, they made a parol partition, under which Walter took the west half and Alfred the east half of the premises conveyed to them, and, under this parol partition, Walter became vested with the color of title to the west half. It is no doubt true, as held in Tomlin v. Hilyard, 43 Ill. 301, and the authorities there cited, that a parol partition between tenants in common, when followed by a possession in conformity therewith, will so far bind the possession as to give to each cotenant the rights and incidents of an exclusive possession of his property. But can a parol partition be treated as a deed, and is it sufficient to pass the legal title or color of title, so as to authorize the party claiming under it to maintain ejectment? In the case last cited, it is said, while the legal title might not, perhaps, be considered as passing by such parol partition, unless after a possession sufficiently long to justify the presumption of a deed, yet the parol partition, followed by a several possession, would leave each cotenant seised of the legal title of one half of his allotment, and the equitable title to the other half,...