Dryden v. Newman , 116 Ill. 186 ( 1886 )

Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The appellee, Jerome B. Newman, on the 31st day of August, 1882, filed in the Stark circuit court a bill in chancery, against John Dryden, the appellant, praying for the partition of a certain tract of land situate in said county, consisting of forty-nine acres. Appellee, by his bill, claimed to be owner in fee of two-thirds of the premises, and conceded the other third to belong to the appellant. The latter answered denying the tenancy in common, and asserting exclusive ownership to the entire premises. Appellant relies, in part, upon possession and payment of all taxes for seven years under claim and color of title made in good faith, and also upon actual possession, by himself and those through whom he claims, for a period of over twenty years. These defences are'both specially set up in the answer. Upon the hearing, the court found appellee to be the owner in fee of one undivided third part of the premises, and appellant to be owner of a like estate in the residue, and entered a decree accordingly, to reverse which this appeal is brought.

It is not necessary for the purposes of this opinion to set out the particulars of the titles respectively relied on by the parties to this suit. It is sufficient to say, that leaving out of view the Statute of Limitations, each of them has shown a clear, connected chain of title to an undivided interest in the land,—appellee to two-thirds, and appellant to one-third. This being so, it follows the trial court must have found that one-half of appellee’s interest was barred by the Statute of Limitations, thus leaving his title good to but a third instead of two-thirds of the property, and we are of opinion the proofs fully warranted this view of the subject.

It appears that James McNaught and Thomas Durand, at the time of the latter’s death, were equal owners, as tenants in common, of the land in question; that Durand died intestate in August, 1847, leaving Francis P. Durand and Elizabeth McNaught, his only children, and Tilla Bedford, a grandchild, who respectively inherited a third of the undivided half of said premises. Some time between 1850 and 1854, Elizabeth McNaught conveyed her interest to her brother, Francis P. Durand, who in 1855 conveyed his entire interest, being then one-third of the whole, or two-thirds of the half, to John B. Smith. The latter, in 1856, executed to Thomas Allwood a warranty deed for an undivided two-tliirds of the entire tract, when, as it will be perceived, he really owned but one-third. In June, 1866, Allwood executed a similar deed to appellant, purporting to convey a like interest in the premises, under which appellant has had exclusive possession ever since. Appellee has, by mesne conveyances, succeeded to the half interest of James McNaught, and the sixth interest of the grand-child, Tilla Bedford. The evidence satisfactorily shows that appellant, and those through whom he claims, have been in the actual possession of the premises, and have paid all taxes thereon, for a longer period than is necessary to make a good title under the Limitation act of 1839, and if the color of title under which he and they have held possession and paid the taxes was co-extensive with his claim of title, we have no doubt his title would be good to the whole of the premises; but such is not the case. The deeds under which he claims purport to convey but two-thirds of the property. To this extent he has shown a good title under the-Limitation act of 1839, but no further, for nothing can be-better settled than that under that act the color of title must be co-extensive with the claim of title.

So far this case presents no difficulty whatever. The only questions in it about which there is any doubt, are: First, whether the appellant, and those through whom he claims, were in the actual possession of the whole of the premises for a period of twenty years or more before the commencement of this suit; second, assuming they were, was that possession so adverse and hostile in its character as to amount to a constructive ouster of the other co-tenants, and thereby put the twenty years’ limitation act in motion. As already seen, the court below by its decree must have found adversely to appellant upon one or the other of these questions, which necessarily defeated his claim to the extent made. The evidence relating to the extent and character of the possession relied on by appellant is both voluminous and conflicting,— too much so, indeed, to justify an attempt on our part to- ■ discuss it in detail. Suffice it to say, that after a very careful examination of it we are unable to say that the conclusion reached by the lower court is not warranted by the evidence.

This branch of the case was not free from doubt, but the whole of the evidence considered, we think the decree is correct, and it will therefore be affirmed.

Decree affirmed.

This case was originally assigned to Mr. Justice- Dickey. No opinion having been written by him before his death, the record was re-assigned at the November term, 1885-