Whitson v. Grosvenor , 170 Ill. 271 ( 1897 )

Mr. Justice Boggs

delivered the opinion of the court:

It is urged as ground of demurrer that it appears from the face of the bill the defendant had had the sole and exclusive possession of the land therein described for a period of twenty years prior to' the filing of the bill, and therefore the right of action of complainants, if any they ever had, was barred by the Statute of Limitations. We need not pause to consider whether the possession of the defendant, as alleged in the bill, was such in its nature and character as would avail to set the Statute of Limitations in operation against a co-tenant, for the reason it does not appear from the allegations of the bill when the defendant entered into such possession nor how long he has held the same. It is true, the bill states, as counsel for defendant in their argument insist,' that the defendant went into possession when Mrs. Kiefer abandoned the premises and moved to DeSoto, but the date of such removal does not appear. The averments of the bill relied upon by the defendant to support this insistence are as follows: “That the dower interest of said Agnes Grosvenor in said lands was never assigned, though she continued for some considerable time, the exact duration of which your orators cannot now state, to occupy the same, and subsequently, and on, to-wit, the 19th day of July, A. D. 1849, intermarried with one Peter Kiefer, after which, though the exact date is to your orators unknown, she removed with him to DeSoto, in said county, where they two continued to reside until the date of her death, as hereinafter alleged.” It will be observed the statement is expressly made that “the exact date” of the removal of Mr. and Mrs. Kiefer from the land is unknown to the complainants. The court could not determine from the face of the bill when the defendant succeeded to the possession of the land, and therefore could not properly rule it appeared the right of complainants to be heard had been barred by the efflux of time.

The remaining ground of demurrer relied upon by counsel for defendant in error is, that the execution and delivery of the warranty deed by Mrs. Crain, mother of the complainants, to the defendant, estopped Mrs. Crain from afterwards asserting an adverse title, or that, by operation óf the provisions of section 7, chapter 30, of the Revised Statutes, any title subsequently acquired enured at once to her grantee, the defendant in the bill, and the further contention of defendant in error the provisions of the statute or the rule of estoppel acted with like effect upon any title after: acquired by the complainants, they being children and heirs-at-law of said Mrs. Crain, the grantor.

It is not necessary, in order to correctly determine the contention, we should consider the point urged by counsel for plaintiffs in error that, said grantor being at the time of the execution of the deed a feme covert, had no power, under the then existing law as to the rights of married women, to legally bind herself by a covenant; or the other point, also urged by the same counsel, that it appears from the statement of the bill the covenant was so qualified and limited that it was the personal undertaking of the grantor alone, and was not, and did not purport to be, obligatory upon her heirs, for the reason it clearly appears the grantor, Mrs. Crain, did not, at any time after the execution of the deed, acquire any interest or title in the land, nor did the complainants, her children, inherit from her any such title or interest or any property or effects whatever. She died insolvent and before the death of her mother, Mrs. Kiefer. When she executed the deed she owned an undivided five-twelfths interest in the land. Her brother, the defendant, also owned an undivided five-twelfths, and Mrs. Kiefer owned the remainder, being an undivided two-twelfths in fee, and also a dower interest in the entire premises. It appeared from the bill Mrs. Kiefer retained the title to the two-twelfths interest until her death, which occurred in 1891. She died intestate, and the title possessed by her descended, under the first clause of section 1, chapter 39, of the Revised Statutes, entitled “Descent,” one-half to her son, Parker, the defendant in error, and the other half to the plaintiffs in error, her grandchildren, in common.

No argument is necessary to support the assertion the title possessed by Mrs. Kiefer in the premises during her lifetime was in nowise affected by the covenant in the deed executed by Mrs. Crain. Such title, wholly unaffected by such covenant, remained in Mrs. Kiefer, and passed at her death to those designated by the statute to take such title as her heirs. Had Mrs. Crain survived her mother, Mrs. Kiefer, and acquired title by descent from her after the execution of the deed, a question would have arisen whether such title enured at once, under the statute, to the defendant in error because of the covenants of warranty in the deed, or whether Mrs. Crain would have been deemed estopped from asserting it as adverse to that which she covenanted to convey and warrant by her deed.

The statutory provision on the rule of estoppel sought to be invoked by defendant in error in support of the decree sustaining the demurrer is not applicable to the state of case disclosed by the bill. The statute is as follows:

“Sec. 7. If any person shall sell and convey to another, by deed or conveyance purporting to convey, an estate in fee simple absolute in any tract of land or real estate lying and being in this State, not then being possessed of the legal estate or interest therein at the time of the sale and conveyance, but after such sale and conveyance the vendor shall become possessed of and confirmed in the legal estate to the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vende„e; and the conveyance aforesaid shall be held and taken, and shall be as valid, as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance.”

It has application only when a grantor who, by covenants in a deed, has warranted he is the owner and has the right to convey the title to the premises he purports to convey, had not such title but afterwards acquires it, in which case the statute operates to transfer such after-acquired title to the grantee in the deed with the same effect as if the grantor had been possessed of the'after-acquired title at the time of the execution of the deed. The rule of estoppel denies such grantor the right to assert such after-acquired title. And it is also true the heirs of such grantor would take no interest in the title so afterwards acquired by their ancestor, for the reason such title would not remain in him to descend to any one, but by operation of law would vest at once in his grantee. But in the case at bar the grantor did not afterwards succeed to any further title in the premises than that possessed when the deed was executed. The complainants do not claim any interest in the premises by, through or under such grantor, but from an entirely distinct and independent source.

It does not appear from the allegations of the bill the plaintiffs were estopped to assert the title derived by them from their grandmother, Mrs. Kiefer, or that the statute hereinbefore referred to had any potency to divest them of such title. The demurrer should have been overruled.

The decree must be and is reversed and the cause remanded.

7 7 7 Reversed and remanded.