Tomlin v. David W. Hilyard.

• Decision Date: 31 January 1867
• Citation: 92 Am.Dec. 118,1867 WL 5030,43 Ill. 300
• Parties: THOMAS F. TOMLINv.DAVID W. HILYARD.
• Court: Illinois Supreme Court

43 Ill. 300

1867 WL 5030 (Ill.)

92 Am.Dec. 118

THOMAS F. TOMLIN

v.DAVID W. HILYARD.

Supreme Court of Illinois.

January Term, 1867.

WRIT OF ERROR to the Circuit Court of Mason county; the Hon. JAMES HARRIOTT, Judge, presiding.

The facts in this case are sufficiently stated in the opinion.

Messrs. LACEY & HARNDON, for the plaintiff in error.

Messrs. DUMMER & PRETTYMAN, for the defendant in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment brought by Thomas F. Tomlin against David W. Hilyard, to recover forty acres of land. It appears by the record, that on the 10th of March, 1856, eighty acres, of which the tract in controversy is a part, were bought by said Hilyard, and one Thompson Tomlin, as tenants in common, the deed being made to them jointly. On the 1st of January, 1858, one Walker obtained a judgment in the Circuit Court of Mason county, where the land is situated, against Hilyard and Thompson Tomlin, on which an execution was duly issued, and the land in controversy sold on the 16th of March, 1858. The plaintiff below derived title under this sale and the sheriff's deed made thereon.

The defense was, that before said judgment was obtained, the eighty-acre tract was divided between Hilyard and Thompson Tomlin, the former taking the south forty acres, being the tract in controversy, and the latter the north forty, and that, although the partition was by parol, Hilyard, in the spring of 1857, took open and exclusive possession of his forty, and has occupied it with his family, as a homestead, from that time to the present. On the trial, a jury was waived, and the court on the evidence gave judgment for the defendant.

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 co-tenant the rights and incidents of an exclusive possession of his property. 1 Wash. on Real Prop. (2d ed.) 450; Jackson v. Hardee, 4 Johns. 202; Jackson v. Vosburgh, 9 Id. 276; Slice v. Derrick, 2 Rich. 627; Coles v. Wooding, 2 Patton & Heath (Va.) 189; Wildley v. Barney's Lessee, 31 Miss. 644; Manly v. Pettee, 38 Ill. 136. 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 co-tenant seized of the legal title of one-half of his allotment, and the equitable title to the other half, and by a bill in chancery he could compel from his co-tenant a conveyance of the legal title, according to the terms of the partition. The homestead law protects a possession held under an equitable as well as a legal title. Blue v. Blue, 38 Ill. 9. If then, in the case before us, there has been a parol partition before the judgment lien attached, and a several possession in conformity thereto, the homestead right can be claimed by Hilyard, even if the legal title to one-half of his allotment...