Wright v. Stice

• Citation: 51 N.E. 71,173 Ill. 571
• Parties: WRIGHT v. STICE.
• Decision Date: 18 June 1898
• Court: Illinois Supreme Court

173 Ill. 571

51 N.E. 71

WRIGHT

v.STICE.

Supreme Court of Illinois.

June 18, 1898.

Appeal from circuit court, Wabash county.

Ejectment by Eliza A. Wright against James L. Stice. From a judgment for defendant, plaintiff appeals. Appirmed.Leeds & Ramsey, for appellant.

Mundy & Organ, for appellee.

This is an action of ejectment brought in the circuit court of Wabash county at the November term, 1893, by the appellant, Eliza A. Wright, against the appellee, James L. Stice, to recover the possession of 32.40 acres of land in that county. The defendant below filed a plea of not guilty. A jury was waived, and the cause was tried by the court, by agreement, without a jury. The trial court found the defendant not guilty, and, after overruling motions for new trial and in arrest of judgment, entered judgment in favor of the defendant, and for costs against the plaintiff. The present appeal is from the judgment so entered by the circuit court. It was admitted upon the trial that the common source of title to the land in question was in John Brown; that John Brown died January 27, 1872, leaving as his widow the appellant, whose present name is Eliza A. Wright, and leaving three children, to wit, Mertie Brown, Rolla Brown, and Mrs. James L. Stice (then the wife of the appellee), his only heirs at law; that he died seised in fee of the land here in question, and other lands; that Mrs. James L. Stice died November 20, 1873, leaving John B. Stice, her only child and heir at law, and her husband, the appellee, James L. Stice. John B. Stice was a minor, 10 years old, on February 5, 1882. On May 30, 1882, one Isaac F. Price was appointed guardian of said minor by the county court of said county upon petition of his father, James L. Stice. On November 3, 1882, Eliza Wright and Mertie Brown and Rolla Brown (the two latter being minors, and suing by Eliza Wright, their mother and guardian) filed a bill for partition in said circuit court, asking for a partition of certain lands, including the land above described, and making defendants thereto the said John B. Stice and his guardian, Isaac F. Price. James L. Stice was not made a defendant to the bill, nor is he mentioned in the decree of partition afterwards entered; and his interest in the premises was not fixed by the decree, nor mentioned in any of the proceedings. A summons was issued in the partition suit, directed to John Stice, Luther Stice, and Isaac F. Price. It is conceded that James L. Stice and Luther Stice are the same person. This summons was served upon Luther Stice, as well as upon the two other defendants, and the sheriff made return that he had served the same upon Luther Stice. The bill for partition set up that John Brown died intestate, leaving his widow and children, as above named, and possessed of the lands sought to be partitioned. The bill further averred that Mary A. Brown, being the daughter of John Brown and the Mrs. James L. Stice above named, intermarried with James L. Stice; that John B. Stice was born as the fruit of said marriage; that said Mary A. Stice died, as above stated, on November 20, 1873; and that no persons other than the complainants and defendants had any interest in said lands. A cross bill was filed by John B. Stice, by his guardian, against Mertie Brown, Rolla Brown, and Eliza Wright, without making James L. Stice a defendant thereto. Answers were filed to the cross bill, and replications to such answers. Answers and replications were also filed in the original suit. Decree was entered appointing commissioners to divide the property. The commissioners made a report, in which they set off the 32.40 acres of land above mentioned to John B. Stice, in severalty, for his share of said premises; being the one-third part thereof, after assigning to the complainant, as the widow of John Brown, her dower. The proceedings show that some or all of the lands sought to be partitioned had been mortgaged by John Brown in his lifetime, and were subject to mortgage at his death; that the widow, the appellant, had paid off nearly all of the amounts due upon said mortgages. The decree in partition subrogates her to the rights of the mortgagees. The decree approves and confirms the report of the commissioners, and decrees that the said parties hold in severalty the titles to the shares set off and assigned to them, respectively, by the commissioners; and by the decree the titles were vested in them according to said assignment. On or about November 20, 1883, the day on which the decree in partition was entered, the appellee, James L. Stice, who had been living theretofore upon a portion of the lands partitioned, called the ‘Home Place,’ but not on the land set off and assigned to his son, John B. Stice, moved upon the 32.40 acres so set off to his son, and subsequently lived there with his son. It is conceded that he occupied said 32.40 acres from the fall of 1883 up to the time of the commencement of this suit, and is still in possession of the same. Isaac F. Price remained the guardian of John B. Stice until March 19, 1884, at which latter date he resigned. Thereupon James L. Stice was on March 22, 1884, upon his own petition, appointed guardian of his son, John B. Stice, and thereafter continued to act as such guardian. While he was guardian he made two reports to the county court of said county,-one dated November 30, 1885, and the other dated January 29, 1889. He also paid the taxes upon said 32.40 acres while he was guardian. At the November term, 1892, of said circuit court, James L. Stice filed his petition for dower in said 32.40 acres of land against his son, John B. Stice; but, after evidence heard, he dismissed said petition at his own costs. Upon the trial of the ejectment suit the plaintiff below (appellant here) introduced in evidence the proceedings and decree in the partition suit, and the reports made by James L. Stice as guardian, and certain tax receipts, as well as other documentary evidence. Witnesses were also examined orally upon the trial of the cause. The plaintiff below also introduced in evidence a quitclaim deed executed by John B. Stice, conveying to the appellant, his grandmother, all his interest in the 32.40 acres so set apart to him in the partition suit. This deed was executed on March 24, 1893, shortly after John B. Stice became of age. Soon after his execution of this deed the said John B. Stice died at appellant's house. Upon the trial of the case the plaintiff submitted certain propositions to the trial judge to be held as law in the decision of the case. Some of these propositions were held to be the law, and some were refused, and the action of the court in refusing those which were refused is one of the errors assigned by the appellant.

MAGRUDER, J. (after stating the facts).

In order to recover in the trial below, the plaintiff there, who is the appellant here, relied upon title claimed to have been acquired, under section 6 of the limitation act, by possession and payment of taxes for seven successive years under claim and color of title made in good faith. The decree in the partition suit, setting off the land here involved to John B. Stice, is relied upon as claim and color of title made in good faith. The court below refused a proposition submitted by the appellant stating that ‘the decree in the partition suit in evidence in this case is color of title in John B. Stice.’ This refusal on the part of the court was erroneous, as the proposition announced a correct principle of law. We have held that the judgment or decree of a proper court, making partition, purports on its face to convey title, and constitutes good color of title, even though a part of the tenants in common are not made parties to the suit in which such judgment or decree is entered. Hassett v. Ridgely, 49 Ill. 197;Rawson v. Fox, 65 Ill. 200. But, in view of what is hereafter said in relation to possession and payment of taxes, we do not regard the error in refusing the above proposition as sufficient to authorize a reversal of the judgment. Color of title alone is not sufficient to establish a bar under section 6 of the limitation act, but payment of taxes, possession, and color of title must concur. Clark v. Lyon, 45 Ill. 388.

In order to establish possession and payment of taxes for seven successive years under the decree of partition, as color of title, the appellant relies upon the possession of appellee, James L. Stice, and upon his payment of taxes, while he was guardian of his minor son, John B. Stice. It is said that the possession and payment of taxes by James L. Stice were not his own possession and payment of taxes, but that he was so in possession and so made payment of taxes as the guardian of the minor, and, therefore, that his acts in this regard inured to the benefit of the minor, and created a bar in the latter's behalf, under section 6 of the limitation act. If this be so, then, inasmuch as James L. Stice had a life estate in the premises his possession and payment of taxes as guardian, if they were his acts as guardian, only operated, in conjunction with the claim and color of title, as a bar against himself, and cut off his own interest in the land as life tenant. That James L. Stice had a life estate is not denied, nor can it be. His wife inherited an undivided one-third part of the lands from her father, John Brown, subject to the dower interest of her mother, the appellant. While she owned this undivided interest, she had a child (John B. Stice) born to her and her husband, James L. Stice; and thereafter, to wit, on November 20, 1873, she died, leaving John B. Stice her only child and heir at law. It thus appears that she died before the act of 1874, abolishing the estate of curtesy, was passed. Hence, under the decisions of this court, James L. Stice, upon the death of his wife leaving issue, was a tenant by the curtesy consummate in the land inherited by her from her father. His interest...