Vognild ex rel. Wallin v. Voltz ( 1908 )

Mr. Justice Adams

delivered the opinion of the court.

It appears from the stipulation between the attorneys for the respective parties that the plaintiff’s attorney made certain objections to the title, but stated to the attorneys for the defendants “that he insisted on objection 3, and that if said objection were cured he would waive the others.” An abstract of title was furnished to the plaintiff by the defendants and examined by plaintiff’s attorney. His objection numbered 3 is as follows:

“Between No. 22 and No. 26, original abstract, there is a complete break in the chain of title. By No. 22 Truman Gr. Wright conveys the title to Charles S. Wright, under deed, dated August 14, 1854, and by No. 26, Salmon F. Heath and Julia W. Heath, the said ‘Julia W. Heath being the sole heir at law of Charles S. Wright, deceased’, and Truman Gr. Wright and wife assume to convey the title to David S. Lee. Charles S. Wright’s estate was neither probated in Cook County, Illinois, nor an exemplification of it filed in the recorder’s office of said Cook County. An attempt is made to clear the objection by the affidavit of Truman Gr. Wright, recorded April 10, 1873, which states conclusions rather than evidentiary facts from which conclusions may be gathered.”

Counsel for plaintiff, defendant in error here, claim that the statements in Truman Gr. Wright’s affidavit that he was very intimate with Charles S. Wright and his family; that Charles S. Wright was his brother and died in 1855 at Bacine, Wisconsin, intestate, leaving no widow and but one child, viz., Julia W. Heath, wife of Salmon F. Heath, now residing at St. Joseph, Michigan; and that Julia W. Heath was the only heir at law of said Charles S. Wright, are all conclusions. We cannot concur in this view. The statements, with the exception of the statement that Julia W. Heath was the only heir at law of Charles S. Wright, are statements of fact, which would be admissible between the parties in a suit at law. They are evidentiary facts. Objection number 3 contains no objection or reference to the affidavit of James B. Doolittle, in which the affiant states that Charles S. Wright died in 1855, leaving no widow and that he left only one heir at law, viz.: Julia W. Heath, wife of Salmon F. Heath, “leaving no other child or children, to the knowledge of this affiant.”

It does not appear from the affidavit of Wright or Doolittle that Charles S. Wright had not other children, who may have died during their father’s lifetime, leaving heirs; but the order of the County Court of Racine county, Wisconsin, of November 7, 1861, contains the following: “And the said Julia W. Heath, Salmon F. Heath being present, also Truman Gr. Wright, and making no objections to said account, and it appearing also to the judge of this court that the said Julia W. Heath is the only legal heir of the said Charles S. Wright, deceased,” etc. It is contended by counsel for the plaintiff that the duty of the County Court being, as appears from the order, to examine into and pass on the account of the administrator of the estate of Charles S. Wright, deceased, the question of heir-ship was not before the court, and therefore the statement in the order that Julia W. Heath was the only legal heir of Charles S. Wright, deceased, was obiter dictum and cannot be regarded as a judicial finding of heirship. It is fully shown by the affidavits of Truman Gr. Wright and James R. Doolittle that Julia W. Heath was the surviving child of Charles S. Wright, deceased. The heirs of Charles S. Wright were interested in the estate of the deceased, and were entitled to be present when the administrator’s account was presented for examination and approval, and it was the court’s duty to see either that they were present in court, or that they had been properly notified and failed to appear. And, in order that the heirs should be bound by the order, it was necessary that it should appear in it, either that the heirs were in court, or had been notified and failed to appear. Therefore, the finding that Julia W. Heath, who was in court, as appears from the order, was the only heir of Charles S. Wright, deceased, was not a mere dictum, but was a judicial finding of the fact of heir-ship.

No objection is made as to the parts of lots 47 and 48 described in the contract and in Max Froehlieh’s affidavit. Objection 3 relates to the other lots described in said affidavit. ' The lots in question, other than lots 47 and 48, are lots 6 to 14, both inclusive, in block 1, in David S. Lee’s Addition to Chicago. Max Froehlich, in his affidavit, deposes that he was intimately acquainted with John Buehler and his family, and that said Buehler acquired title by deed of date March 1, 1872, and recorded April 9, 1872, from Orrin W. Potter and wife to said John Buehler, to lots 1 to 14, inclusive, in block 1, in David S. Lee’s Addition to Chicago, and that said premises, from the time of said purchase, were used by said Buehler as a homestead; that he and his family actually resided thereon, and he was in actual possession of the same; that later he, at different times, sold portions thereof, but continued to reside on the remainder; that he died in 1899, and at the time of his death he was in actual possession of lots 6, 7, 8, 9, 10, 11, 12, 13 and 14, etc., having continued such possession under claim of ownership his possession having been hostile, adverse, visible, notorious and exclusive; that he devised his said homestead to Rosa Buehler, his widow, and she continued to reside on the same till her death in December, 1902, when by her last will she devised the same to Fredericke Voltz and Catherine Cabel, her ‘sisters, and Katie Voltz, her niece, in common, and since the death of Rosa Buehler her said devisees have been in possession of the same, by their agents and tenants, and are now in possession thereof, and that the taxes have been paid on said premises by John Buehler, Rosa Buehler and said devisees in succession. This affidavit shows continuous and exclusive possession for more than twenty years in John Buehle.r, his widow and her devisees, under claim of ownership, and the payment of the taxes on the property during such possession. No objection is made to the affidavit by objection 3, and the only objections to it made in argument are that the Statute of Limitations does not run against minors, insane persons and others laboring under disabilities, and there may be such persons, and that such continuance in possession is not a matter of record, and that plaintiff is entitled to a record title. In support of the proposition that plaintiff is, by the contract, entitled to a record title, Page v. Greeley, 75 Ill. 400, and Parker v. Porter, 11 Ill. App. 602, are cited. In the latter case the contract provided for “the delivery by defendant of a warranty deed and abstract of title, brought down by the recorder’s office to date, showing good title.” In Page v. Greeley the contract provided: 11 The said parties shall respectively furnish, each to the other, abstracts of title, made by competent abstract makers, to the premises herein agreed to be sold,” etc. The court construed this provision as a contract for a good title of record. The contract of the defendants here is “to convey to said purchaser a good and merchantable title thereto, by general warranty deed, with release of dower and homestead rights, subject to existing leases by month. ’ ’ The contract here is to furnish a merchantable abstract of title.

McDuffee v. Sinnott et al., 119 Ill. 445, was a suit for partition between the heirs of John Sennott, deceased. The deceased and his heirs had been in actual and exclusive possession of the premises for more than twenty years. Some of the parties to the partition suit claimed as heirs of one Henry Jackson; but the court held that at the time of the commencement of the suit the Jackson title was barred, both by the twenty and seven years’ limitation. The court say: • ‘ The only answer made to this position is that limitation acts can only be availed as a shield, and not as a sword, and a number of authorities are referred to as sustaining this position. In view of the repeated decisions of this court, it would be a fruitless consumption of time to enter upon a discussion of the cases decided outside of this state, for whatever the rule may be elsewhere, it is now well settled in this state that whenever the bar of the statute has become absolute, and the party entitled is in possession under it, it is thereafter just as available for attacking as for defensive purposes, and its availability in this respect will not depend at all upon the occupant continuing in the actual possession of the property. His rights in that respect are precisely the same as those of any other absolute owner of land. He can vacate it or occupy it, just as convenience or interest may dictate.” Citing numerous cases.

In Riverside Co. v. Townshend, 120 Ill. 9-20, the court say: “Where the plaintiff in ejectment shows an adverse possession for twenty years, so that the right of entry is barred, he is entitled to recover even against a defendant whose possession for a less period is lawful,” citing authorities. The cases cited are a complete answer to the plaintiff’s contention that a good title means, necessarily, a record title.

Clark v. Jackson, 222 Ill. 13, is relied on by plaintiff’s counsel, and, as appears from the record, influenced the decision of the trial court. That case is not an authority for the proposition that affidavits cannot be used in support of the title, the court expressly saying: “The question whether any defect in an abstract can be cured by affidavits does not arise in this case, as the contract did not require that an abstract of the title to the Attica Lithia Springs realty should be furnished.”

When title is sought to be established under the twenty-year Statute of Limitation, we cannot perceive how it can be proved otherwise than by parol evidence.

We are of opinion that the evidence cures objection 3 of plaintiff’s counsel. This renders it unnecessary, in view of the stipulation between the parties, to consider other objections urged in the opinion of plaintiff’s counsel on the title. Counsel for plaintiff say, in their argument: “The objection No. 3 not being cured to the satisfaction of the vendee, then the vendee insists upon the other objections enumerated in the opinion of title.” The stipulation does not require that objection 3 shall be cured to the satisfaction of the vendee, which, as counsel for defendants pertinently sug’gest, might be impossible. The language of the stipulation is: “Of said objections he stated to the attorneys for the defendants that he insisted on objection No. 3, and that if said objection were cured, he would waive the others. ” This warranted the attorneys for the defendants to confine their defense to objection No. 3, and to hold that they were required to produce evidence curing the objection to the satisfaction of the plaintiff, would make the stipulation a mere trap.

The judgment will be reversed.

Reversed.