Weber v. Anderson

• Decision Date: 30 September 1874
• Citation: 1874 WL 9006,73 Ill. 439
• Parties: JOHN P. WEBERv.ANDREW ANDERSON.
• Court: Illinois Supreme Court

73 Ill. 439

1874 WL 9006 (Ill.)

JOHN P. WEBER

v.ANDREW ANDERSON.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. BRANDT & HOFFMANN, for the appellant.

Mr. GEORGE SAWIN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of covenant, brought by Andrew Anderson, in the Superior Court of Cook county, against John P. Weber, for breach of covenant of seizin and good right to convey in a deed conveying certain land.

A trial of the cause was had before a jury, which resulted in a verdict for the plaintiff for $731. The defendant entered a motion for a new trial, which the court overruled, and rendered judgment upon the verdict, to reverse which the defendant brings the record here by appeal.

The grounds mainly relied upon by appellant to obtain a reversal of the judgment are, that the court erred in giving instructions one and two for appellee, and in modifying and refusing certain instructions of appellant.

In order to determine whether the law, as given by the court to the jury in the instructions was correct, a brief statement of the facts, as proven, seems to be necessary.

In 1846, a certain tract of land in Cook county, containing 40 acres, was conveyed by letters patent to one Daniel Elston. This tract was subsequently sub-divided into blocks and lots. One of the lots was known as “Tollgate lot,” which is wedgeshaped, and lies in the forks of Milwaukee avenue and Elston road, as shown by a plat introduced in evidence. The east line of this lot is 141 feet long, the north line 155.9 feet, the other line, on Milwaukee avenue, is 210.6 feet in length. The 10 feet off the north line of this lot is the land to which it is claimed the title failed and the covenant of seizin was broken.

On the 19th of May, 1849, Daniel Elston conveyed by deed to Thos. Richmond, president of the Plank Road Company, a portion of the Tollgate lot, described in the deed as commencing at the forks of the Milwaukee and Mile End road, and running north-west on the Milwaukee road 200 feet, then due east to the Mile End road, thence south to the place of beginning. By the description in this deed, the ten feet off the north side of the lot was not conveyed. Elston, in pointing out the boundaries of the land conveyed to the Plank Road Company, however, informed it that the deed embraced the whole of the Tollgate lot, and placed the Plank Road Company in possession of the entire lot.

The road company inclosed the entire lot with a fence, and used and held the possession of the entire lot, claiming title to the whole from the time of the purchase until the 1st day of September, 1863, when the Plank Road Company sold to appellant, and in the deed described the land as it was conveyed to it, but delivered the possession of the entire lot to appellant, who held the possession until the 26th day of May, 1870, when appellant conveyed the entire lot to appellee, and delivered the possession of the same to him.

In 1873, appellee obtained a quitclaim deed of the heirs of Daniel Elston, he having died in 1855, for the 10 feet off the north side of the Tollgate lot, and afterwards instituted this suit.

The first question presented by this record necessary to be considered, arises upon the second instruction given by the court for appellee, which is as follows:

“2. The jury are instructed that the defendant, Weber, can not claim the twenty years limitation, unless they find that the defendant derived the Turnpike Company title by some deed conveying the property in controversy, which the company acquired by possession, if any; and if they find, from the evidence, that the Turnpike Company never deeded to said defendant the land claimed as having failed in title, then the defendant is not the grantee of said Turnpike Company, for such land, and their possession can not enure to said defendant for that part of the land to which they had no title.”

The Plank Road Company took actual possession of the land in dispute in 1849, and held the continued possession of it until the 1st day of September, 1863, when it transferred the possession to appellant, and he remained in the undisputed possession until the 26th day of May, 1870, when he conveyed to appellee.

The Plank Road Company, as well as appellee, while in possession, claimed to own the land. The land was, therefore, held and occupied adversely to Daniel Elston, or his heirs, for a period of over twenty years, a length of time sufficient, under the Limitation Act of the State, to bar a recovery of the owner, if the possession of the Plank Road Company would enure to appellee without a formal conveyance by deed.

The jury were told, by the instruction, that the possession could not be transferred to appellee except by deed of conveyance.

By the sixth section of the act of 1827, it is declared, no person who now hath or hereafter may have any right of entry into any lands, tenements or hereditaments, shall make an entry therein, but within twenty years next after such right shall have accrued, and such person shall be barred from any entry afterwards.

By the seventh section of the same act, it is declared, every real, possessory, ancestral or mixed action or writ of right, brought for the recovery of any lands, tenements or hereditaments, shall be brought within twenty years next after the right or title thereto, or cause of such action, accrued, and not after. Gross' Statute of 1869, page 429.

Under this statute, it is not essential that a party, who takes possession and holds adversely, should enter under a deed or muniment of title to cause the statute to run in his favor. No deed or paper title is necessary. It is sufficient for a party to take possession under a claim of ownership, and hold the time required by the statute to complete the bar. Turney v. Chamberlain, 15 Ill. 273.

It is the possession that bars the owner of a recovery. If the owner permits the occupation of his land for a...