Robb v. Howell

Mr. Justice Wilkin delivered the opinion of the court: That which plaintiffs in error have filed as an abstract of the record in this case is in disregard of the rules of this court, failing- to do more than refer us to pages of the record for the ascertainment of the material facts. We have, however, deemed it best, under all the circumstances of the case, to waive this irregularity and consider the case upon its merits. As shown by the foregoing statement of facts the administrator’s sale took place on March 7, 1874,—more than twenty-two years before the commencement of this suit,—and prior to this time the validity of the decree upon which that sale was based had never been questioned. Neither is it disputed that from the date of the sale to the bringing of this suit Barney B. Howell and these defendants, his widow and children,'have been in the open and exclusive possession of the premises. Although the decree of the county court authorizing the sale of the land does not recite that summons had been served upon the defendants therein, it does show that the widow filed therein a release of her dower and homestead rights; and after the lapse of so many years, in the absence of proof to the contrary, the presumption must be that dower and homestead were regularly and legally released. That such release operated to bar both the widow and her children from thereafter asserting homestead rights is well settled. Kingman v. Higgins, 100 Ill. 819; Clubb v. Wise, 64 id. 157. More than twenty years having elapsed since the administrator’s sale and possession taken thereunder, the presumption obtains that jurisdiction of the person of the defendants was acquired by the court rendering the decree, and that it acted within its jurisdiction and proceeded according to law. (Nickrans v. Wilk, 161 Ill. 76; 22 Am. & Eng. Ency. of Law, 161; Greenleaf on Evidence, secs. 19, 20.) Moreover, defendants in error have been in possession of the land for more than twenty years, adversely to complainants. The Statute of Limitations, pleaded by them, is therefore a complete defense to this action. Under the facts appearing' in this record it cannot be seriously contended that the widow, Mary A. Adamson, had such rights in the property as would prevent the running of the statute against her children, and it is to be remarked that she herself testifies that she did not authorize the bringing of this suit and knew nothing' of its commencement until some time thereafter, from which it is to be inferred that she has not claimed and does not claim any right or title to the property. The circuit court committed no error in dismissing the bill. Judgment affirmed.