Donason v. Barbero

Mr. Justice Scott delivered the opinion of the court: We are satisfied that the transaction by virtue of which John J. Barbero received the deed for the property now in controversy was a redemption. The widow of Nathan Barbero, in negotiating the contract with the holder of the certificate of purchase, acted for herself and all the heirs of the deceased. Had that contract been consummated by her it would have been, in fact, a redemption. Although the certificate of redemption passed into a deed, yet the grantee in that deed virtually extended the period of redemption to September i, 1889, and within that period it carried out that contract, except that John J. Barbero, as grantee, was substituted for the grantee mentioned in the contract. John J. Barbero, in closing the negotiations, was given credit for the payments that had been made on the Lyon contract by his mother, and those payments had been made for and on behalf of the widow and all the heirs. The balance of the money arose from the sale and encumbrance of land descended from Nathan Barbero, with the exception of $153.53 advanced by John J. The letter written by Mr. Hendryx, set out in the foregoing statement of facts, shows that he understood that he was acting for the Barbero widow and heirs; that he understood that the Lyon contract was a contract for redemption, and that the money which he proposed to raise if that contract had been or could be extended was money with which to effect a redemption. Moreover, he states that at the time the deed was delivered at Peoria he was acting as attorney for the estate of Nathan Barbero, and that he never knew until after he reached Peoria that the deed was to be made to John J. According to the master’s report this property in August,' 1889, was worth over $38,000. It is urged by appellees that the value was, in fact, less. But if the testimony be given the most favorable construction possible to appellees, and if we take into consideration the fact that witnesses, with their knowledge of the great advance in the price of farm lands in Illinois in the last few years, are prone to estimate the value of lands at an earlier period at a greater price, perhaps, than they would have done had their testimony been taken during that period, we.yet conclude that the lowest possible value as of August, 1889, which could be placed upon this land, upon consideration of the evidence contained in this record, would be many thousand dollars above the amount actually paid at the time the deed was delivered. If this realty was only worth the $6326.67 paid by Hartsook for the one hundred acres purchased by him and the $21,425 for which John J. pledged the remainder of the land in March, 1890, the total value was $27,751.67, or more than $12,000 in excess of the amount paid the Provident company in August, 1889. It is not equitable to say that John J. Barbero became the owner of that excess in his own right when he acquired the deed by virtue of a contract made for the benefit of his mother and all the heirs of his father. .The making of the deed to John J. Barbero under a contract extending the time for redemption, payment being made with the property of the widow and heirs of the deceased, excepting the small portion thereof advanced by John J., was, in effect, a redemption, and thereafter, in equity, the heirs of Barbero, as between themselves, were tenants in common of the real estate, precisely as though redemption had been made within the statutory period. If it is true that Mrs. McGirr refused to join in the redemption a different question would be presented as to her. The interest which she claimed, however, passed by virtue of a deed made by her to John J., who conveyed the same to Andrew C. Housh, and appellant does not contend that she was not entitled to the benefit of the redemption. Whether she was so entitled is therefore immaterial. As between the Provident company and John J. Barbero the deed delivered August 31, 1889, conveyed no interest in the land at the time of its delivery, for the reason that the name of the grantee was, without authority from the grantor, inserted in a blank left in the deed at the time of its execution. (People v. Organ, 27 Ill. 27; Whitaker v. Miller, 83 id. 381.) After that deed had been delivered, however, the Provident company, in the partition suit brought by Sarah L. McGirr, (the bill wherein averred the conveyance of the lands to John J. Barbero by the Provident company,) answered disclaiming any interest in the premises. This, we think, ratified the act of Dow in writing the name of John J. Barbero in the blank left in the deed for the name of the grantee, so far, at least, as the .appellant and those through whom he claims are concerned. Devin v. Himer, 29 Iowa, 301. Prior to'August, 1889, John J., as the employee or agent of his mother, had the actual, visible control of these lands,— that is, as her agent he was engaged in supervising the agricultural operations carried forward thereon. Appellees vigorously contend that after the receipt of the deed by him his conduct of business upon this farm and in relation to this farm was such as to give notice to his brother and sisters that he claimed to be the exclusive owner thereof. The master found that after August, 1889, he was in the exclusive possession of said real estate, paid taxes thereon, collected rents therefrom and mortgaged the same by deed to the defendant Housh, and further, that he openly claimed the same as his own property. That claim amounts to nothing unless it was brought to the attention of those who were, in equity, his co-tenants. There is in this record no evidence of any acts, of an exclusive ownership of such nature as to give notice to the co-tenants that John J. was claiming the exclusive ownership of this land. The other heirs of the deceased knew that the interest of John J. had been acquired under a contract made for the benefit of all, and this knowledge on their part must be taken into consideration in determining the conclusion which they would draw from the acts of ownership exercised by him. McMahill v. Torrence, 163 Ill. 277, is authority for the statement that possession by him and payment of taxes, however long continued, the appropriation of rents, the making of slight repairs and improvements oh the lands, is not, alone, sufficient, “for all this may be consistent with the continued recognition of the rights of his co-tenants.” In some way his co-tenants must be given notice “that an adverse possession and an actual disseizin are intended to be asserted against them.” Busch v. Huston, 75 Ill. 343; Ball v. Palmer, 81 id. 370; McMahill v. Torrence, supra. This case, upon the proof as to this question of notice, is not materially different from Sontag v. Bigelow, 142 Ill. 143, where the party setting up laches held a deed purporting to convey to him the title of those who were originally his co-tenants, as did John J. Barbero here. It was there held that if one of two tenants in common takes the actual possession of the land and continues to occupy same, appropriating to himself the exclusive rents and profits, and pays the taxes for more than seven years, and does nothing to apprise his co-tenant that he claims to be the owner of the entire premises, such possession will not be adverse but will be the possession of both. Reliance is placed by appellees upon the fact that John J. Barbero, in his answer filed on February 15, 1890, to the amended supplemental bill of Sarah L. McGirr, stated that he was the absolute owner of the real estate in question. Nathan H. Barbero and Ann M. Donason in that suit were co-defendants with John J. No trial of that cause was ever had. It does not appear that either Nathan H. or Mrs. Donason knew that John J. had filed any answer, of any character, to the said amended supplemental bill or knew what defense he proposed to make thereto. Under these circumstances the answer filed by him cannot be regarded as actual notice to them that he was claiming the entire title. Mrs. Donason testified, on behalf of Housh, that John J. claimed to own all the land but never set up that claim until after the mother’s death, which was in 1894 and within the statutory period. The bill herein alleged “that the said John J. Barbero, after obtaining said deed, denied that the other heirs of Nathan Barbero, deceased, had any interest in said lands, but set up and claimed to be the absolute owner thereof.” That allegation, however, cannot be regarded as an admission or confession that John J. Barbero’s co-tenants had notice, at any particular time prior to the filing of the bill, that his possession was adverse as to them. Was Housh an innocent purchaser? It appears that he was fully advised of the existence of the Lyon contract and the negotiations that preceded the delivery of the deed to John J. On March 31, 1890, at the time the deed was made to him, which, in law, was a mortgage, the suit of Sarah L. McGirr for partition of these premises was pending in the circuit court of Knox county. When he received that deed he advanced to John J. but ten dollars in cash. The other indebtedness secured by that deed had been in existence some time, and Housh, in taking that conveyance, was evidently merely getting the only security obtainable to assure the payment of pre-existing debts. Thereafter Mrs. McGirr filed an amended supplemental bill claiming that the transactions by which John J. Barbero obtained the deed from the Provident company were, in fact, a redemption, and for the purpose of ridding himself of her claim John J. Barbero paid her $500, which was furnished by Housh, and took from her a quit-claim deed. Housh knew that Nathan H. and Ann M. had each the same right that was possessed by Sarah L. We think that the knowledge that Housh had of the steps by which John J. acquired the deed from the Provident company and the information which he possessed in reference to the affairs of the estate of the deceased were sufficient to put him upon notice of the rights of Ann M. Donason and Nathan H. Barbero. The case of Dugan v. Pollett, 100 Ill. 581, upon which the appellees rely, is distinguished from the case at bar by the fact that in that case the parties who had enjoyed the possession throughout the statutory period did so without knowledge that the parties who asserted an adverse interest had any claim to the premises. As we have above pointed out, it is here otherwise as to John J. Barbero and Housh. Appellees also urge that appellant is a mere volunteer and speculator; that he acquired his deed without giving any valuable consideration therefor, and for this reason has no standing in a court of equity in this cause. We are unable to perceive that Housh is in any other or different position than if the deed from Nathan H. Barbero and Ann M. Donason had not been made and the suit had been brought by them, except as to rents falling due before the making of the deed to the appellant, and as to those rents Housh’s position in this suit is improved, as appellant can not require him to account for them. The rights of appellant, though the deed was made without consideration, are neither greater nor less than the rights of his grantors, so far as Housh is concerned, with the exception noted. If Mrs. Donason and Nathan H. had an equitable interest in this real estate they could give it to whomsoever they saw fit, and the person so acquiring it could assert the interest received against their co-tenant with the same effect that they could have done. The decree of the circuit court will be reversed and the cause will be remanded, with directions to the court to overrule the exceptions to the master’s report taken by the appellees and to sustain the exceptions taken by the appellant to the master’s finding to the effect that appellant is barred to assert his rights by virtue of the laches of his grantors, and to enter a decree finding appellant and appellees to be each the owner of the undivided one-half of the premises in question, other than the tract sold by Housh. Appellant is not entitled to an accounting for rents or other money or property* in the nature of profits, derived from the lands prior to the date of his deed from Ann M. Donason and Nathan H. Barbero. The cause, however, should be again referred to the master for the purpose of taking and stating the account between the parties, in which event evidence already taken may be considered without the same being retaken, and either party will be at liberty to offer such other and further evidence as he or they desire. Housh should account, according to the ordinary rules in such cases, for rents and profits falling due after the date of the appellant’s deed. Housh should also be charged with the sum of $500 on account of the advancement made by Nathan Barbero, in his lifetime, to Sarah L. McGirr. The appellant should be charged $3560 on account of the advancement made to Nathan H. Barbero and $1500 on account of the advancement made to Ann M. Donason. The evidence only shows advancements made prior to December 27, 1879. If advancements were made by the deceased after that time they should be charged to Housh or appellant, accordingly as they were made to the grantors of either. No interest should be allowed upon any advancement. Housh should account for the money received by him from the tract of real estate which he sold, with interest thereon at five percentum per annum from the date when he received the proceeds. Housh should have credit for the $i53-.53 paid by John J. Barbero out of his own funds to the Provident company, with interest thereon at five percentum per annum from the date of the deed to appellant from Mrs. Donason and Nathan H. If the commissioners divide the land, the various charges arid the sums due upon the accounting may be secured by a decree in favor of the party to whom the balance is due, which can be made a lien upon the lands set off to the other party. If the lands should be sold, the balance due upon the accounting can be adjusted out of the proceeds. A decree appointing commissioners may be entered after the accounting is concluded. The costs of this court will be adjudged against Housh. Reversed and remarided, with directions.