Nickrans v. Wilk

Mr. Justice Magruder delivered the opinion of the court: When appellee’s husband, Fred Dose, died in 1868, her possession at that time and up to the rendition of the partition decree of May 16, 1871, was not adverse, so far as the sister and brothers of her deceased husband were concerned. She owned an undivided one-half of the land and dower in the other half, and they owned an undivided half thereof, subject to her dower and homestead rights. She and they were tenants in common, and her possession was theirs and is presumed to have been for their benefit, until some act was done showing a contrary intent. “As a general proposition, the entry of one co-tenant enures to the benefit of all. * * * As both have an equal right to the possession, the law presumes that, if one only enters and takes the rents and profits, he does this act as well for his companion as for himself. But this presumption may be rebutted by the overt acts of the one so entering; by such acts as show, that he means to hold exclusively for himself without being accountable to any one.” (Freeman on Co-tenancy and Partition, sec. 166). As we understand the position of appellee, it is conceded, that her possession was not hostile or adverse prior to May 16, 1871, but it is claimed that the tenancy in common was destroyed by the decree of partition entered on that day, and that, thereafter, her possession of the whole of the premises for more than twenty years, together with her payment of the taxes and appropriation of the rents and profits, gave her title to all of the tract to the exclusion of the other heirs. In order to constitute a disseizin of a co-tenant by a tenant in common, there must be an ouster, or some act which the law deems equivalent to an ouster; and, where there is a decree of partition, setting off different tracts of land in severalty to the persons therein named, possession taken of the whole thereunder is an act of ouster; an entry under it, claiming the whole of the land, will operate as the beginning of a prescription, except as against persons under disability; and possession under it, if actual, continued, visible, notorious, distinct and hostile, will ripen into a bar against a tenant in common thus disseized. (1 Am. & Eng. Ency. of Law, p. 232; Freeman on Co-tenancy and Partition, sec. 227). If appellee’s possession of the whole tract partitioned had been adverse and exclusive during the period of twenty years, without recognition in any way of the rights and interests of the other heirs, her title would be good by prescription. But after the decree of May 16, 1871, and on September 8, 1871, appellee and her husband, John Wilk, filed a second bill against the sister and brothers of her first husband, Fred Dose, which was in effect a new bill for partition of the same premises involved in the former suit begun on October 20, 1870. The proceeding begun by the filing of this new bill on September 8, 1871, was pending and not finally disposed of until July 7, 1874. Twenty years did not elapse between July 7, 1874, and the filing of the present petition on May 14, 1892. The records of the proceeding having been destroyed by the great fire of October, 1871, it is impossible to tell what the full scope of the bill filed on September 8, 1871, was, but the minutes of its contents, so far as preserved, show that the appellee therein prayed, that the decree of partition of May 16, 1871, entered in the former suit begun on October 20, 1870, might be “reviewed, set aside, canceled and annulled, and that said original cause proceed de novo.” By the proceeding begun in September, 1871, appellee evidently regarded herself as still a tenant in common with the other heirs, and sought to set aside the former decree and have a new partition. The intent not to be bound by the former decree is manifest. So long as the second proceeding was pending, it cannot be said, that the appellee was holding the possession of the whole tract by a possession which was adverse and hostile to the other tenants in common. The evidence to sustain an ouster by a co-tenant must be stronger than the evidence to sustain ordinary adverse possession. (Barrett v. Coburn, 3 Metc. (Ky.) 513; Forward v. Deetz, 32 Pa. St. 72; Bailey v. Trammell, 27 Tex. 328). To create an ouster there must be an actual and exclusive possession of the whole premises, claiming the whole. (Florence v. Hopkins, 46 N. Y. 182; Culver v. Rhodes, 87 id. 348). By the proceeding of September, 1871, appellee recognized the rights and interests of the defendants thereto as tenants in common with herself in the land, and this recognition was inconsistent with a claim of the whole of it on her part. Adverse possession, to constitute a bar to a right of entry, must not only be hostile in its inception and character and so continue uninterruptedly for twenty years, but it must be under a continuous assertion of ownership, hostile to all others. (Shaw v. Schoonover, 130 Ill. 448). There could be no continuous and hostile assertion of ownership of the whole of the land by the appellee during the period from September 8, 1871, to July 7, 1874, because she was during that time seeking a partition between herself and the other heirs as owners with her of undivided interests in the land. “The difficulty of determining whether a given state of facts constitutes an ouster of one co-tenant by another may be removed by circumstances or declarations, from which the true intent of the party is clearly manifested.” (Freeman on Co-tenancy and Partition, sec. 223). The intent, manifested by appellee by the institution and prosecution of the suit of September, 1871, was other than an intent to oust the other tenants in common of their respective interests; it was rather an intent to set off such interests to them in severalty. For the reasons thus stated we are of the opinion, that the appellee did not establish title to the whole of the land in question by twenty years’ adverse possession, and that the finding below in her favor in this respect in accordance with the prayer of her original petition was erroneous. We think, however, that the cross-bill of appellants was properly dismissed. The object of the cross-bill was to get a partition of the property, and it proceeded upon the assumption, that there had been no previous partition, in other words, upon the assumption that the decree of May 16, 1871, was void. The ground upon which it is claimed, that the decree of May 16, 1871, was void and did not effect á partition between the parties, is that the minutes of the lost record of the partition suit begun on October 20, 1870, do not show service upon the defendants therein, and that, for this reason, the circuit court is not shown to have had jurisdiction to render that decree. It cannot be held that the decree was void, or that the property had not been partitioned thereby, upon the ground thus alleged. The abstract, copies, extracts from the records and minutes produced by the abstract makers, and made evidence under the amendatory-act of June 15, 1887, in regard to the restoration of records, (3 Starr & Curtis, Stat. p. 1043), do not show how the land was divided by the decree of May 16, 1871, whether by setting off the north half to appellee, as alleged in the bill, or otherwise ; but they do show, that appellee and her second husband filed a bill on October 20, 1870, for the partition of the premises in controversy which are therein described; that the sister and three brothers of the deceased Fred Dose were made defendants; that, on January 3, 1871, a default was entered; that, on February 21, 1871, there was a decree in partition appointing commissioners ; and that, on May 16, 1871, there, was a decree confirming the report of partition by the commissioners, and ordering appellee to pay one-half of the costs and the defendants to pay each one-fourth thereof. Jurisdiction over the subject matter is thus shown affirmatively, and while the extracts and minutes are silent as to service upon the defendants, yet, as there is nothing to show want of service, it will be presumed there was service. The decree of May 16, 1871, was rendered by the Superior Court of Cook county, which was a court of general jurisdiction; and where such a court is acting within the scope of its authority, it is presumed to have jurisdiction to render the judgment or decree which it pronounces, until the contrary appears. It is a well settled rule, that, in collateral proceedings, nothing is presumed to be outside of the jurisdiction of courts of general jurisdiction, but that which specially appears to be so. (Huntington v. Metzger, 158 Ill. 272; Reedy v. Camfield, 159 id. 254.) The rule, that nothing shall be intended to be out of the jurisdiction of a superior court except that which expressly appears to be so, is applicable where there is a collateral attack upon the record of the court, which is silent as to service upon the parties. The presumption of jurisdiction in such case embraces not only jurisdiction of the subject matter, but also of the parties. “Should the record disclose nothing, jurisdiction over the person as well as the subject matter will always be presumed when the validity of the judgment is questioned collaterally.” (12 Am. & Eng. Ency. of Law, p. 271, note 3; Huntington v. Charlotte, 15 Vt. 46; Kelseys v. Wiley, 10 Ga. 371; Pope v. Harrison, 84 Tenn. 82; Bush v. Lindsey, 24 id. 245). In addition to these general principles, there is another rule to the effect, that the presumption in favor of the regularity of judicial proceedings becomes conclusive after the lapse of time without objection being made. (22 Am. & Eng. Ency. of Law, p. 161). Accordingly, the presumption will be indulged “after twenty years, in favor of every judicial tribunal acting within its jurisdiction, that all persons concerned had due notice of its proceedings.” (1 Greenleaf on Evidence, sec. 19). “It will be presumed after the lapse of twenty years, in favor of the validity of judicial proceedings, that the parties concerned had due notice, although the record does not affirmatively show that fact.” (Wilson v. Holt, 83 Ala. 528). In the case at bar, more than twenty years had elapsed after the rendition of the decree of May 16, 1871, before the filing of the original petition by appellee, and more than twenty-two years before the filing of the cross-bill by appellants. In view of what has been said, it follows that, when the cross-bill was filed for a partition, the premises had already been partitioned by a valid decree; this being so, there were no undivided interests in existence as between appellee and appellants ; such interests had been set apart in severalty, so as to leave nothing to be divided. The cross-bill prayed for relief which had already been granted. Its prayer was, therefore, properly denied. For the error above indicated, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.