Beattie v. Whipple , 154 Ill. 273 ( 1894 )

Baker, J.:

The petitioner, appellant here, insists that no title passed by the deed that was executed by Caulfield, as attorney in fact of Eliza B. Beattie, now deceased. For this claim two reasons are assigned: First, that the power of attorney was never executed by her; and second, that when the alleged power of attorney was made there was no power in a married woman residing in this State to appoint an attorney to convey lands owned by her and located in this State. If we assume, for the purposes of this decision, that these contentions are well founded, yet the twenty years’ limitation law is an insurmountable barrier to the enforcement of the title of appellant. Eliza B. Beattie, the ancestress of appellant and his brother, was disseized in her lifetime, and the twenty years’ limitation is to be computed from the date of such disseizin. Rev. Stat. chap. 83, secs. 1-3.

It appears from the petition that Whipple and his wife were in the actual possession of the premises, as a residence, for more than twenty-six years, continuously, prior to the filing of such petition, and that such possession was adverse to the rights of the petitioner and of his ancestress and brother, through whom he claims. The averments of the petition are to be taken most strongly against the party whose pleading it is, and when petitioner states that Whipple conspired with Ridgely, Smith, Caulfield and Pollard to defraud Eliza B. Beattie by means of a forged power of attorney, which they caused to be recorded in the recorder’s office, and took a deed of the premises that was based on such forged power of attorney, and kept possession of the premises for twenty-six years, we cannot understand otherwise than that the title so procured, and the possession under it, were in hostility to the claim and title of the petitioner and of those through whom he derives his supposed ownership. Bor does it seriously militate against this view that more than five years after the inception of this hostile title, and after the death of Eliza B. Beattie, the grantors of the grantor of Whipple received from the sur- . viving husband of said Eliza B. Beattie a conveyance of all his interest in the premises. Such act on their part .did not change the hostile character of the title that was then vested in Whipple, nor did it work an abandonment of that title, nor subordinate it to the title that had descended to the heirs of Eliza B. Beattie.

The effect of the Married Woman’s act of April 24, 1861, was to authorize and empower a married woman to" institute and maintain suits for her separate property, and to control and manage such property as though she was a feme sole; and to take her out of the saving clause in favor of femes covert in the limitation laws. Gross’ Stat. (3d ed.) chap. 66, sec. 14; Castner v. Walrod, 83 Ill. 171; Enos v. Buckley, 94 id. 458; Safford v. Stubbs, 117 id. 389. Therefore the twenty years’ limitation law began to run against Eliza B. Beattie and against her title probably from February 17, 1864, and at all events from December 1, 1866. She lived for more than fourteen months after this latter date, and during all that time there was nothing to prevent her from bringing suit to recover possession of the premises, and as the statute once began to run it was not arrested by her death, but continued to run against her heirs, even though they were minors. The general rule is, that when a statute of limitations begins to run it will continue to run until it operates as a complete bar,¿ unless there is some saving or qualification in the statute itself. People v. White et al. 11 Ill. 341; Peoria County v. Gordon, 82 id. 435.

It is claimed that the fact that on the death of Eliza B. Beattie, in 1868, a life estate consummate by the curtesy vested in her husband, Charles J. Beattie, had the effect to suspend the running of the statute against the fee simple estate that descended to the heirs. We fully recognize the rule that a cause of action does not accrue in favor of a remainder-man or a reversioner, or the statute begin to run against him, until the termination of the preceding estate. The doctrine is, that the Statute of Limitations will not affect the fee simple title if the particular estate exists at the time of the disseizin. Angell on Limitations, (6th ed.) 377. In Dugan v. Follett, 100 Ill. 581, the adverse possession commenced during the existence of the life estate. In Orthwein v. Thomas, 127 Ill. 554, Thomas Osborn was tenant by the curtesy from 1832 until his death, in 1863, and the adverse claims of the appellees had their origin in conveyances made by him during the time intervening these dates. And in Mettler v. Miller, 129 Ill. 630, there was no disseizin of Maria Boss in her lifetime, since Isaac Boss, her husband, as the law then stood, was tenant by the curtesy initiate, and as such had a freehold estate for the lives of himself and wife, with a freehold in remainder to himself for life as a tenant by the curtesy consummate, and the deed he made on August 18, 1853, to the remote grantor of Miller, operated as a conveyance of the life estate by the curtesy. But in the case at bar, as has already been stated, there was an adverse possession, in her lifetime, against the fee simple title of the ancestress" of the appellant, and when she died, in 1868, it continued, under the rule that governs the operation of limitation statutes, to run against that fee simple title, no matter whom it was vested in; and the fact that at her death a life estate by the curtesy was, by operation of law, carved out of her estate, did not have the effect of stopping the statute from running against the entire estate that had been vested in her.

In Jackson v. Schoonmaker, 4 Johns. 390, the decision turned upon the question whether or not there was a disseizin or adverse possession existing at the time of the death of Josephat Dubois, the devisor. By his will he gave an estate to his widow for life, and after her death the remainder in fee to his daughters. The testimony was contradictory and very uncertain upon the issue of fact above indicated. Under the circumstances of the case the court refused to disturb the verdict, but Chief Justice Kent, in delivering the opinion of the court, said that the court would have been as well, if not better, satisfied if the verdict had been the other way. He also said: “Assuming it as a fact that Dubois was not dis-seized, and that no adverse possession existed against him, in his lifetime, of the premises recovered, it is then a settled position that no subsequent disseizin or adverse possession would bar the right of the lessors, if they brought their suit (as it appears they did) within twenty years after the death of the widow. Neither a descent cast nor the Statute of Limitations will affect a right if a particular estate existed at the time of the disseizin.” See, also, Moore v. Jackson, 4 Wend. 59.

In Bozeman et al. v. Browning et al. 31 Ark. 364, the appellants claimed, in avoidance of the Statute of Limitations, that they were devisees in remainder under • the will of Joseph A. Browning, and that they had no right of action until the termination of the intermediate life estates of John and Nancy Browning, and that the suit was commenced within the period of limitation after the death of the latter, who survived the former about twenty-four years. But the court held, that since appellees went into possession of the lands in the lifetime of Joseph A. Browning, and held adverse possession of the same, and the Statute of Limitations commenced running against him and was running at the time of his death, the attempt of appellants to interpose the intermediate life estates as the means of creating in them an additional or cumulative disability to sue, and thereby to interrupt the running of the statute, was unavailing to stop the running of the statute.

We know of no authority for saying that the case of a subsequently intervening particular estate is one of the few exceptions to the general rule that the fact or condition which will impede the operation of the statute must be a fact or condition existing at the time the right of action accrues, and that if the statute once begins to run its course, an after-occurring fact or condition will not stop it before it becomes a complete bar. The cases relied on by appellant are not cases in which there was a particular estate commencing after the cause of action accrued, and we do not regard them as here in point. Our conclusion therefore is, that the title of appellant was barred at law on or before the first day of December, 1886, whereas this suit was not brought until August 26, 1891.

This suit is in equity, and it is urged that even if all other relief should be denied, yet that the title of Eliza B. Beattie should be restored and established as it was of record when the record was destroyed, and that petitioner has the right, at all events, to demand that muchiThe power of attorney and the deeds executed thereunder were placed upon the public records a quarter of a century prior to the filing of the petition. In the meantime rights had accrued to numerous third parties, based upon faith in the public record that is now sought to be attacked. The ancillary relief of restoring the title of his ancestress would have done the petitioner no good. At the same time, it would have worked a cloud upon the title that had its origin in the Caulfield power of attorney and that is protected from assault by the bar of the statute, and would have been a menace and an injury to those interested in that title. The rule is, that equity will not do that which will be of no benefit to the party asking it, and an injury to others. Green et al. v. Green, 34 Ill. 320; Joliet and Chicago Railroad Co. v. Healy et al. 94 id. 416; Werden v. Graham, 107 id. 169.

The decree of the circuit court is affirmed.

Decree affirmed.