Weigel v. Green

• Decision Date: 24 October 1905
• Citation: 75 N.E. 913,218 Ill. 227
• Parties: WEIGEL v. GREEN et al.
• Court: Illinois Supreme Court

218 Ill. 227

75 N.E. 913

WEIGEL

v.GREEN et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Circuit Court, Macon County; Wm. C. Johns, Judge.

Action by John M. Green against Henry D. Weigel. From a judgment for plaintiffs, defendant appeals. Affirmed.

Rehearing denied December 12, 1905.

Walters & Latham, for appellant.

Nelson & Whitley and Alexander & Harris, for appellees.

This is an action of ejectment begun on July 28, 1904, in the circuit court of Macon county by the appellees, John M. Green, James F. Green, and Emma D. Green Hulse, all of whom are nonresidents of this state, against the appellant, Henry D. Weigel, to recover 10 acres of land in said county, described as the E. 1/2 of the W. 1/2 of the N. E. 1/4 of the N. W. 1/4 of section 16, town 17 N., range 2 E. of the third principal meridian. A plea of the general issue was filed and by agreement a jury was waived, and the cause was submitted for trial before the court without a jury. The court rendered judgment, finding that the appellees were the owners in fee as tenants in common of the premises in question, and that appellant was in possession of the same, and it was therefore considered by the court that appellees recover said premises of the appellant, and appellees were thereby adjudged to be the owners of said premises, and it was further adjudged that a writ of possession issue against the appellant and in favor of appellees, and that appellees recover their costs. The present appeal is prosecuted from such judgment.

The material facts, the most of which were embodied in written stipulations between the parties, are substantially as follows: The land mentioned in the declaration was originally granted by the United States to the state of Illinois for the use of schools in the township where the same is located, and said land was accepted by Illinois. On February 5, 1850, the state of Illinois issued a patent for said land to David Krone. In May, 1856, David Krone conveyed said premises to Katherine Ann Stipp, and the deed to Katherine Ann Stipp was duly recorded in Macon county. Katherine Ann Stipp died testate in Lawrence county, Ind., where she then resided, on or about March 31, 1861. She left a will dated June 19, 1856, the material part of which was as follows: ‘I, Katherine Ann Stipp, do give and bequeath to my granddaughter, Martha Ann Judah, all my estate, lands, moneys, personal property, with all my effects, to her during her lifetime, and to her children after her death. And if she, Martha Ann Judah, should have no children at her death, I do give and bequeath all my property, lands, effects, money and all my estate to my brothers and sisters, or to their heirs, to be theirs forever to be equally divided between all my brothers and sisters and their heirs.’ The will was signed by Katherine Ann Stipp by her mark, and there were two witnesses to it, to wit, Isaac Denson and Michael Stipp; the latter signing by his mark. The will in question, with an affidavit by said Isaac Denson subscribed and sworn to on May 29, 1861, before Davis Harrison, clerk, and three certificates attached, each dated July 11, 1904, was recorded in the recorder's office of Macon county on July 14, 1904. The affidavit of May 29, 1861, attached to the will, by Denson, one of the subscribing witnesses, has as its venue the state of Indiana, Lawrence county, and is as follows: ‘I do solemnly swear that the foregoing will of the testatrix was duly executed by her in my presence and in the presence of Michael Stipp, the other subscribing witness, who, with myself, subscribed our names thereto at the request of the said testatrix, and in her presence, and in the presence of each other, and that the said testatrix was at the time competent to devise her property, and not under coercion.’ The first certificate, dated July 11, 1904, has the venue aforesaid, and is by Boone Leonard, clerk of the circuit court of Lawrence county of Indiana, in which he certifies, ‘the foregoing to be a true, perfect and complete copy of the last will and testament of Katherine Ann Stipp, now remaining on file in my office, the same being recorded in my office in Will Record ‘A’ at page 188; and that said will was duly executed and proved agreeably to the laws and usages of the said State of Indiana,' to which is affixed the seal of the court, besides the signature of the clerk. The second certificate, of July 11, 1904, has the same venue, and is by James B. Wilson, judge of the circuit court of Lawrence county, who certifies that said Leonard, ‘whose name is subscribed to the foregoing certificate of attestation, now is, and was at the time of signing and sealing same, clerk of Lawrence circuit court of Lawrence county aforesaid, and keeper of the records ans seal thereof, duly elected and qualified to office; that full faith and credit are, and of right ought to be, given to all his official acts as such in all courts of record, and elsewhere; and that his said attestation is in due form of law and by the proper officer.’ The third certificate, dated July 11, 1904, is signed by Boone Leonard, clerk of said Lawrence county circuit court, has the same venue, and certifies ‘that James B. Wilson, whose genuine signature appears to the foregoing certificate, was at the time of signing the same, judge of the Lawrence circuit court of Lawrence county, duly commissioned and qualified; that full faith and credit are, and of right ought to be given to all his official acts as such in all courts of record, and elsewhere.’

Appellees on the trial below offered in evidence a copy of said will and of the affidavit of probate by Isaac Denson, as attached thereto, which copies of the will and of said affidavit are above set forth, with the following certificates attached thereto, to wit, one certificate by Davis Harrison, clerk of the court of common pleas of Lawrence county, Ind., per Charles T. Woolfolk, deputy clerk, dated May 29, 1861, witnessing his hand and seal of said court at Bedford, wherein said clerk certified ‘that the foregoing will of Katherine Ann Stipp, deceased, has been admitted to probate before said court on this day; that the same was proven by the oath of Isaac Denson one of the subscribing witnesses thereto, and that a complete record of said will and the testimony of said witnesses had been duly recorded in record book in my office, entitled ‘Record of Wills A,’ page 188'; also, a second certificate by Davis Harrison, clerk of the court of common pleas for the county of Lawrence, Ind., dated July 20, 1861, witnessing his hand and the seal of said court, certifying ‘that administration with the will annexed of the estate of Katherine Ann Stipp, late of Lawrence county, deceased, who died testate, is granted to Israel Judah, and said Israel Judah, having qualified and given bond as such administrator, he is duly authorized to take upon himself the administration of such estate according to law.’The copy of the will last mentioned was filed for record in the recorder's office of Macon county in book 11 on page 318 on January 27, 1863; it being agreed that said book 11 in the possession of the circuit court clerk and ex officio recorder is a book kept and in the possession of the said circuit court clerk, in which are recorded deeds and other instruments relative to the title of lands in Macon county, Ill.

Martha Ann Judah was a granddaughter of the testatrix, Katherine Ann Stipp, and resided in Lawrence county, Ind., at the time of the death of Katherine Ann Stipp. Martha Ann Judah, the granddaughter, was lawfully married to Cornelius Green in Lawrence county, Ind., on or about November 18, 1862, and she and Green lived together as husband and wife until his death. Martha Ann Green (formerly Martha Ann Judah) died at her home in Lawrence county on or about February 19, 1904. She left surviving her, as her only children, John M. Green, James F. Green, and Emma D. Green Hulse, the appellees herein. John M. Green was 40 years old on February 11, 1904, and resides at Pueblo, Colo.; James F. Green was 34 years of age on December 15, 1904, and resides in Lawrence county, Ind.; Emma D. Green Hulse, formerly Emma D. Green, was lawfully married to one Walford R. Hulse on or about November 25, 1884, and now survives her husband, and is 36 years old, and resides in Lawrence county, Ind. On March 28, 1864, Martha Ann Green (formerly Martha Ann Judah) and Cornelius Green, her husband, executed a deed conveying said premises to Daniel Weigel, which deed was recorded in the recorder's office of Macon county May 14, 1864. By the terms of the latter deed, the premises were conveyed to Daniel Weigel and ‘his heirs and assigns forever, in fee simple as a sure, perfect and absolute estate,’ and contained a covenant that, at the time of the delivery thereof, the grantors were the lawful owners of the premises and seised thereof in fee simple absolute, and that they would warrant and defend the same in the quiet and peaceable possession of said Weigel, his heirs and assigns forever. Daniel Weigel entered into possession of the said premises under said deed, and claimed the ownership, and continued in possession thereof, until he died intestate in the year 1885, and, during the time of his possession, paid all the taxes levied or assessed against said land. Daniel Weigel left three sons, Henry D., Martin, and Solomon. The interests of the two sons Martin and Solomon have been conveyed to the third son, the appellant, Henry D. Weigel. About the time of the death of Daniel Weigel Henry and Martin conveyed their interests in said premises to Solomon Weigel, who then entered into possession thereof, and remained in possession until July 28, 1889, and during that time paid all taxes against the land. When Solomon Weigel died on July 28, 1899, he was a bachelor, and died intestate, leaving as his only next of kin and heirs at law his brothers, Henry D. Weigel and Martin Weigel...