Lambert v. Hemler

Mr. Justice Hand delivered the opinion of the court: There is but one question in this case, and that is whether the facts relied upon by defendant in error, Ann Hemler, are sufficient, in law, to establish her contention that the possession of Nancy Lambert of the eighty-acre tract subsequent to the death of her husband was such as ripened into title which passed to her by the terms of said will. If the limitation is established by the facts, the title of the testatrix thereby acquired is such an interest as would pass to the defendant in error under the terms of the will. (Gosselin v. Smith, 154 Ill. 74.) The burden is upon defendant in error, Ann Hemler, to establish all the material facts necessary to sustain her contention by a preponderance of the competent evidence heard in the case,—that is to say, she must prove that the possession of her testatrix was hostile or adverse, actual, visible, notorious and exclusive, continuous and under claim of title. (Clark v. Jackson, 222 Ill. 13.) “All these elements must be made out by clear and positive proof.” (Roby v. Calumet and Chicago Dock Co. 211 Ill. 173.) “Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal.” (Zirngibl v. Calumet and Chicago Dock Co. 157 Ill. 430.) It was said in Kirby v. Kirby, 236 Ill. 255, on page 265: “From the earliest decision in this State to the present time it has been held that a party claiming title by adverse possession must prove his possession was adverse to the true owner, by clear and positive evidence. This cannot be established by inference, but the proof must show clearly that the party in possession claimed the land as his own, openly and exclusively.” Ordinarily there is no adverse possession between co-tenants. The possession of one co-tenant is the possession •of all, in contemplation of law, and not adverse, especially where all the parties derive title, as they did in this case, from the same ancestor; (McMahill v. Torrence, 163 Ill. 277;) but where there is actual ouster, and notice or knowledge of hostile claim by one co-tenant in possession brought home to the other co-tenants, adverse possession may be successfully asserted. This court has held that to sustain an ouster, by a co-tenant the evidence must be stronger than to sustain ordinary adverse possession. Nickrans v. Wilk, 161 Ill. 76. At the time of the death of the husband of Nancy Lambert the statute usually referred to as the Widow’s Quarantine was in force, which gave her the right to retain full possession of the dwelling house in which her husband most usually dwelt, together with the out-houses and plantation thereto belonging, free from molestation and rent until her dower was assigned. (1 Gross’ Stat. 1845, chap. 34, sec. 27.) The evidence establishes that the real estate in question was within the terms of the statute, and that dower was never assigned or set off by the plaintiffs in error, and that the widow, after the death of John Lambert, continued to occupy the premises' as she had done ^before his death and as she had a right to do under the statute, and that such would be the presumption of law, nothing appearing to establish the contrary. There is no evidence in this record tending to show that the widow’s possession of the portion of the real estate belonging to the plaintiffs in error, in its inception, was under claim of Ownership hostile or adverse to their interest. The presumption must therefore be in favor of the true owners of the real estate, and we must assume, the contrary not appearing, that her possession of the real estate was by vixtue of the statutory right hereinbefore referred to, and not adverse to the title of the plaintiffs in error but entirely consistent and in harmony with such title. (Riggs v. Girard, 133 Ill. 619.) Until dower was assigned the widow was entitled to the exclusive possession of the premises, the right to use them and apply the profits exclusively to her use, or to lease them and receive the rents accruing under the lease. She could have maintained ejectment against the heirs in the event they had obtained possession without her consent, and her right to possession was exclusive until her dower was assigned. (Riggs v. Girard, supra.) So the evidence of use and leasing is not, of itself, sufficient to establish that her possession was adverse. Inasmuch as she received all the rents and profits produced by the land, it was her duty, under the law, to pay the taxes and special assessments levied against the real estate, and the payment by her of taxes and assessments is not inconsistent with the contention of the plaintiffs in error. (Riggs v. Girard, supra.) Nor was the leasing of the real estate to one of the plaintiffs in error inconsistent with the position here taken by them. Until dower was assigned the widow had absolute control of the premises and the right to lease the same and collect the rents thereon. The evidence as to improvements made by the widow while in possession shows that she expended but little, and there is proof tending to show that the improvements actually deteriorated during her occupancy. We are of the opinion that this evidence is entitled to but slight weight in arriving at a conclusion in this case. The declarations as to claim of ownership made by Nancy Lambert were made less than twenty years prior to her death. The deeding of the right of way for the ditch and the mortgaging of the premises for the purpose of raising the money to pay the drainage assessment are not conclusive evidence as to the assertion of ownership of the whole on the part of Nancy Lambert. She was the owner of one-half of the real estate and entitled to the use of all of it until dower was assigned. The evidence discloses the construction of the ditch by the drainage district benefited the land considerably, and proportionately was of as much benefit to plaintiffs in error as to Nancy Lambert, and therefore the deeding of the right of way and the executing of the mortgage for raising the money with which to pay the assessment made by the drainage district for the construction of the ditch were not inconsistent with the interest of plaintiffs in error in the real estate. The fact that the farm was known as the “Nancy Lambert farm” goes only to the element of the openness and notoriety of her possession. There is no doubt, under the evidence, that she occupied the 'farm from her husband’s death until her death, and if the other elements of adverse possession were as clearly established, the bar to an assertion by the owners of the legal title of their rights in the real estate would be complete. As we have heretofore stated, there are five elements that must be clearly established by the evidence before the decree in this case can be sustained, and the proof fails to establish that Nancy Lambert’s possession in the beginning was hostile or adverse to the true owners and does not overcome the presumptions in their favor, and is not sufficient to justify the decree entered in this case. The evidence fails to establish that the possession of Nancy Lambert was in the beginning adverse to the plaintiffs in error, and her possession was consistent and in harmony with their rights in the premises. Much reliance is placed by the defendant in error, Ann Hemler, upon the case of Kotz v. Belz, 178 Ill. 434, as an authority in point and sustaining her contention in this case. The cases are not alike upon the facts and are clearly distinguishable. In the Kotz case one Weber died, leaving a widow and no children him surviving. The evidence shows that he died testate; that his will was admitted to probate but was burned shortly thereafter in, the Chicago fire, and upon the trial its provisions were not clearly proven. However, the evidence showed that Weber owned real estate which was occupied by him and his wife, at the time of his death, in part as a home, and that he rented a part thereof as a saloon and another portion was occupied by a tenant as a residence. The widow at once, upon his death, went into possession of all of this real estate, claiming to be the sole devisee of her husband and by virtue of his will the sole owner thereof. Her declarations, made immediately after the death of Weber, were, that he had given everything to her by his will, and at the time she made these declarations she had taken possession of the premises, was collecting the rents thereon and claiming to own the whole in her own right, as devisee and legatee under her husband’s will. The evidence clearly established that she based her right to possession under a claimed title through the will of Weber, and this court expressly found, in view of the foregoing facts, that the contention that, she occupied the premises by virtue of the Widow’s Quarantine act was not sustained by the evidence. Her possession was clearly established- to be adverse to the heirs. In the case at bar' there is no evidence tending to show that the widow remained in possession of the premises under any claim adverse to her co-tenants, and therefore the contrary presumption must obtain,—that is, that her possession was not adverse to but in accordance with the rights of the true owners of the premises, and that she remained in possession by virtue of the statute, which gave her the right to hold said premises until dower was assigned. The evidence in this case failing to establish the contention of the defendant in error, the decree of the circuit court of McLean county is reversed and the cause remanded to that court, with directions to enter a decree therein consistent with the views herein expressed. Reversed and remanded.