Citation. 22 Ill.9 Ill. 2d 441, 137 N.E.2d 815 (1956)
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Brief Fact Summary.
This case involved a dispute between the Plaintiffs, the widow and children of Fred Mercer, deceased (Plaintiffs) and the Defendants, surviving sons of Lora Wayman, deceased, and the widow and daughter of Verne Wayman, deceased (Defendants), to set aside oil and gas leases by the Defendants and to have the Plaintiffs declared the sole owners of the 40 acre tract in question.
Synopsis of Rule of Law.
The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter how long a period, cannot be set up as a bar against the cotenants.
This case involved a dispute between the Plaintiffs and the Defendants to set aside oil and gas leases by the Defendants and to have the Plaintiffs declared the sole owners of the 40-acre tract in question. Originally, the tract was owned in fee simple by John Mercer, who died intestate, leaving him with sole heirs at law his widow, five sons and two daughters. Thereafter, one of the daughters, Lora Wayman, died intestate and was survived by Oscar Wayman, husband, and three minor sons, Verne Wayman, June Wayman and Paul Wayman. On May 7, 1920, the widow of John Mercer, four of the sons and the surviving daughter, together with their spouses, joined in a quitclaim deed conveying the 40-acre tract to the remaining son Fred Mercer and wife. Oscar Wayman, husband of the deceased Lora Wayman, joined in the conveyance individually and as “father and natural guardian of Verne Wayman, June Wayman and Paul Wayman, children of Lora Wayman, deceased.” The deed purported to convey “all in
terest” to Fred Mercer and wife for consideration of an assumption of existing mortgage. Fred Mercer and wife entered upon the property and farmed the property until the present time, 1956. The property was assessed in the name of Fred Mercer and all taxes were paid when due. Fred Mercer and wife executed three separate mortgages warranted upon their fee simple ownership. The Plaintiffs, widow and children of Fred Mercer, executed oil and gas leases in 1938, 1939, and 1953. Subsequent to the 1953 lease by the Plaintiffs to J.T. Thompson, the Defendants also executed leases to Thompson. These leases are the leases the Plaintiffs are suing to set aside. The youngest child of Lora Wayman attained majority on July 1, 1926. Neither the Defendants nor any other member of the Wayman family ever made a claim to any right, title or interest in the land, nor have the Defendants sought an accounting of rents or profits. The Plaintiffs contend that their possession of the tract ripened into title
and that Defendants are barred from any claim to the premises by reason of both the 20-year statute of limitations and the 7-year statute of limitations. The Defendants claim to be owners of an undivided 1/7th of the tract and are not barred by the statute of limitations because there has been no actual ouster. The trial court found the Defendants to be barred by the statute of limitations. The Defendants appealed.
Are the Defendants’ claims barred by the statute of limitations?
The rule is well settled that the mere possession by one tenant in common who receives all the rents and profits and pays the taxes assessed against the property, no matter how long a period, cannot be set up as a bar against the cotenants. The possession of one cotenant is considered by law to be possession by all the cotenants.
In order for the possession by one cotenant to become adverse to another cotenant, there must be a disseizen or ouster by some outward act of ownership of an unequivocal character, overt and notorious, and of such nature to impart notice to the cotenant that an adverse possession and disseizen is asserted by the tenant in possession.
The deed to Fred Mercer and wife was ineffective to convey the Defendants’, then minors, interests in the land. Thus, such deed did not constitute color of title and the seven-year statute of limitations (tax title) was inapplicable.
The Plaintiffs, although in possession for thirty-four years, never made any overt act, which would serve as notice to the cotenants that they were claiming adversely to them. The Plaintiffs have failed to meet their burden of proof.
This case illustrates the need for adequate legal representation in the preparation of deeds. Consider that the father of the Defendants intended to convey the minors’ interest in the land and there was evidence of that intent. However, because the father did not perform the quitclaim in a legally sufficient fashion, the minors retained an interest. Would the father have quitclaimed his own interest, but intended that his minor sons retain an interest?