Shaw v. Smithes

Mr. Justice Carter delivered the opinion of the court: The only question in this case is, whether James Smithes had adverse possession of the eighty acres in controversy for the statutory period of limitation. There is no controversy as to his actual possession by tenants, but the claim is made that such possession was under Shaw, and not in assertion of an adverse title. Thomas Shaw bought the whole quarter, part of which is now in dispute, in 1855, and receipts for the taxes paid on it in his name are in the record for the years 1855,1856 and 1857; then there is no evidence as to who paid the taxes for 1859 or 1860, but receipts for the taxes paid on the east half of the quarter, as made by James Smithes, are in evidence for the years 1861 to 1886, both inclusive; then there is another break in the receipts for the years 1887 to 1890, since which time the receipts are for the whole quarter in the name of Henry Shaw, as executor of Thomas Shaw’s estate. While it is true that James Smithes was never married and always lived with his brother-in-law, Thomas Shaw, and never paid for his board, at least so far as the evidence discloses, except that he sometimes “did chores and worked” for Shaw, still, such an arrangement does not raise any presumption of filial or quasi parental relations between the parties, so as to support the presumption that any possession that Smithes might have had of any land the record title to which was in Shaw, was a merely permissive possession, as contended by appellants. All the witnesses that knew anything about the facts testified that the east eighty acres of the quarter were known in the neighborhood as the Smithes eighty; that Shaw, when he spoke of it, called it “Jim’s eighty” and the other half his eighty; that Smithes leased the land in his own name to tenants and collected the rents, and we do not find any intimation in the evidence that Shaw or any one else ever called in question the fact that it belonged to Smithes. Robert Mayne, a witness for the defendants, said that Shaw told him that if Smithes ever paid for a part of the land he could have it; that while he was working there, over thirty years ago, Smithes got an interest in the land, and used to call it his. Sarah Smithes, a sister of James Smithes and of Thomas Shaw’s wife, testified that twenty-six or twenty-seven years ago, when Shaw was back on a visit in England, he told them that Jim had bought an eighty; that in three years he had paid for it; that he had done better than in England; that he got the money by raising horses and selling them, and paid for it in that way; that Shaw took her on the land after she came to this country and showed her the land, and said “this is Jim’s eighty and this (the west eighty) is mine.” Daniel Hitchcock testified that Shaw said that he and Smithes bought the quarter together; that thirty-five years ago Smithes .claimed to own the east eighty. This eighty was marked on a sectional map of Peoria county, published in 1882, as belonging to Smithes, and again in a gazetteer of the same county, published in 1889, was listed as being his. The house built upon it was insured in his name, and when it burned, in 1887, the insurance money was paid to him. A new house was built and insured in his name. The receipts show that he paid the taxes in his own ñame. Shaw died January 30, 1890, and his son Henry was named as executor in the will, but filed no inventory until February 26, 1892, after James Smithes had died and he had been appointed his administrator. He filed an inventory of Smithes’ estate on the same day, in which he listed one hundred and sixty acres of land in Kansas, for-which Smithes had paid $640, and $4180 in notes, but he listed the eighty acres in controversy here in his inventory of his father’s estate, more than two years after Thomas Shaw’s death. Smithes controlled the land during all the time after he first began paying the taxes on it, and even Henry Shaw paid him two years’ rent for it after his father died. All the terms and expressions used by Shaw and Smithes in reference to this quarter are entirely consistent with the theory that each owned a certain definite portion of the same, and are not consistent with any other theory. They are such as would naturally be used by persons standing in such close relationship and on such intimate terms with each other, owning separate parts of the same larger tract. No reason is disclosed by the evidence, and none can be perceived, why Shaw should allow his brother-in-law such possession and control of the property for such a length of time, and the entire rents and profits, unless it was because the land belonged to him, Smithes; and the fact that when Smithes died he owned one hundred and sixty acres in Kansas, and held over $4000 worth of notes, shows that he was not in indigent circumstances and not dependent on Shaw’s bounty. His possession of the land in controversy was not permissive, as a tenant at sufferance, or otherwise, of Shaw, but was such as a purchaser or an owner would have. Though apparently without paper title, he was clothed by Shaw with all the indicia of possession and ownership for nearly thirty years, without any effort to collect any money from him or to take away his appearance of ownership. If the owner permits the occupation of his land for a period of twenty years by a party asserting ownership, he is barred by the statute. (Weber v. Anderson, 73 Ill. 439.) Smithes claimed the land and spoke of it as his. Every act he did was the act of an owner. Using and controlling property as owner is the ordinary mode of asserting a claim of title. James v. Indianapolis and St. Louis Railroad Co. 91 Ill. 554. We think the decree of the circuit court was right, and it will be affirmed. Decree affirmed.