Long v. Morrison

¶1dissenting: The deed from Annis Long, in 1893, to Thomas W. Long and Mrs. Manners for the whole of lot 9 and the east half of lot 8, and the deed to George W. Long for the west half of lot 8, were warranty deeds and purported to convey title to the whole of the premises to the grantees. The same year George W. Long made a deed to Thomas W. Long and Mrs. Manners purporting to convey to them the title to the whole of the west half of lot 8. Thomas W. Long and Mrs. Manners have been in the sole possession and use of the whole of the premises since those conveyances were made, in 1893, and the answer of appellants admits they paid the taxes thereon. As early as Goewey v. Urig, 18 Ill. 238, this court held that a sale by one tenant in common of the whole premises, followed by adverse possession, “amounts to an .ouster or disseizin of the co-tenants, and the Statute of Limitations will bar their action or entry.” This has been approved in Hinkley v. Greene, 52 Ill. 223, Lavalle v. Strobel, 89 id. 370, and later cases. In Steele v. Steele, 220 Ill. 318, where the Statute of Limitations was set up against parties claiming an interest in premises which had been conveyed by a co-tenant, it was insisted the Statute of Limitations did not apply, for the reason “that complainants and defendants are tenants in common, the complainants owning- an undivided one-fourth and the defendants an undivided three-fourths of the property, and that the possession of one tenant in common can not be adverse to his co-tenant.” The court said: “It is the general rule that statutes of limitation do not run as between tenants in common, for the reason that the possession of one tenant is, in contemplation of law, the possession of all; but if, as a matter of fact, the possession of. one is adverse to the other, a right of action may be barred or title may be acquired under a statute of limitations. If one tenant in common holds exclusive possession, claiming the land as his, and his conduct and possession are of such a character as to give notice to his co-tenant that his possession is adverse, the Statute of Limitations will run.” Under these decisions we think the Statute of Limitations was bound to run against appellants unless the proof showed the title of the grantees of Annis Long was not obtained in good faith or that their possession was not adverse, and the burden vras upon appellants to prove one or the other of these facts to take the case out of the operation of the Statute of Limitations. (Burgett v. Taliaferro, 118 Ill. 503.) In our opinion the decree of the circuit court was in harmony with the previous decisions of this court and should be affirmed.