Masterson v. Wiswould ( 1856 )

Scates, C. J.

The proofs do not sustain the decree. In all cases against infant defendants, strict proof is required. Greenough et al. v. Taylor et al., 17 Ill. R. 602; Hitt v. Ormsbee, 12 ibid. 169, 255, and 260.

This will distinguish the case from that of Dunn v. Keegin, 3 Scam. R. 292 ; and default and decree pro confesso against adults. Infants-cannot be in default in the sense that their rights may be adjudged away, -without affirmatively showing that it is equitable and just.

The record must contain enough in such cases to sustain the decree, whether guardian ad litem answers or not.

The case will be adjudged here upon the facts shown in the record. White v. Morrison et al., 11 Ill. R. 364; 12 ibid. 160, 255, 260, and 283 ; 16 ibid. 113.

No other proof of title in defendants was shown than the partition, in 1817, among Earner’s heirs, and possession in Eufus Wiswoiild and wife. For anything that appears, defendants may not claim under a supposed will of Masterson, but by title paramount. To make proof no higher up for title than the partition, it should be shown that both parties derive title from the same source, under that partition. This is not done here, and a higher source of title cannot be dispensed with, to authorize a decree barring them from all claim.

Plaintiffs, it is to be recollected, did not set up or claim title under the will of B. T. Masterson ; it has been so imputed or attributed to them by the bill; and the existence of a will has only been shown by parol, without any proof that plaintiffs claim the land under such a will.

It may be, that, upon proper and full proofs, defendants might have a right to a decree to quiet title against such a devise, without showing that plaintiffs claim under it; but in such case, no costs should be awarded against parties innocent of any act or conduct to impeach or cloud the title.

Decree reversed and cause remanded.

Decree reversed.