
    Sumner Maring et al. Appellants, vs. Charles M. Meeker et al. Appellees.
    
      Opinion filed April 23, 1914.
    
    1. Limitations-—when adverse possession is bar. The actual, open, exclusive and continuous possession of land for over thirty years under claim of right is a bar, under the Statute of Limitations, against the legal title, provided the possession is hostile in its inception.
    2. Same—life tenant cannot hold adversely to remainder-man and reversioner. A life tenant cannot' hold .adversely to those holding in reversion or in remainder, nor can he create, by conveyance purporting to convey the absolute title to a third party, a greater or different estate than he possesses, and as a reversioner or remainder-man has no right of entry during the life estate, he is not deemed guilty of laches in failing to assert his rights while the life estate continues.
    3. Same—when a deed is sufficient evidence of intent. A deed which is regular on its face and which purports to convey the legal title held by the grantor is sufficient evidence of a hostile intent upon which to base adverse possession.
    4. Same-—when conveyance from widow is color of title. The conveyance by a widow of a tract of land in which she had noth-
    ing but an unassigned dower interest will be treated as a deed from
    a volunteer and as good color of title, and in the absence of evidence to the contrary will be presumed to have been acquired in good faith.
    5. Pleading—when the cross-bill need not allege that possession was hostile in its inception. Premise's may be recovered on the ground of adverse possession notwithstanding the failure of the cross-bill to expressly allege that the possession was hostile in its inception, where the facts alleged and proven are sufficient to warrant a decree and the cross-bill contains a prayer for general relief.
    6. DowER—unassigned dower interest is not an estate. Until dower has been assigned it is no estate in the land but is a personal right that lies only in action and not in grant and does not carry with it a right of entry, and the widow can only release her right to use and occupy the premises to the owner of the fee.
    7. Same—when the right to possession pending assignment of .dower is lost. The right of a .widow to retain possession of land until dower has been assigned is lost by abandoning the premises
    
      and leaving the State, and when once the premises have been so abandoned the widow has no right to demand re-possession.
    8. Deeds—when heir of grantor is estopped as to his interest. A land owner or an heir who actively encourages and induces the purchasing of his land is estopped from afterwards claiming adversely to the purchaser, although the land owner or the heir might have been ignorant, at the time, of his true rights, as a purchaser may rely on the representations of the owner without further inquiry and may act upon the assumption that he is cognizant of his rights and knows the condition of his title.
    9. Stipulations—when deeds may he treated as in evidence. Under a stipulation of facts that the record shows certain deeds the deeds mentioned may be regarded as in evidence, but not as conceded to be competent or as constituting valid links in a connected chain of record title.
    Appear from the Circuit Court of Clark county; the Hon. W. B. SchoreiErd, Judge, presiding.
    Everett Connerry, for appellants.
    W. T. Horrenbeck, for appellees.
   Mr. Justice Carter

delivered the opinion of the court:

This was a bill filed by appellants in the circuit court of Clark county for the partition of one hundred acres of land in that county and to quiet title thereof, against appellees. The appellees filed an answer denying the allegations of the bill and alleging that they were the owners of the property in question, and also filed a cross-bill asking that the title be quieted in them to the respective tracts of which they had deeds and that the claims of appellants to any interest in the land be declared null and void. After a hearing the bill was dismissed for want of equity and a decree entered on the cross-bill quieting title in appellees tO’ their respective tracts. Appellants thereupon, by appeal, brought the case to this court.

The land in question consists of an eighty-acre tract in section 23 of a certain township in the said county and a twenty-acre tract in section 20 of the same township, the two tracts being about two and a half miles apart. Most of the facts concerning the matters of record were introduced in the form of a stipulation of facts signed by both parties. It appears that in 1865 both tracts were owned by William Maring, and that he died in January of that year, intestate, while a soldier in the Union army, leaving him surviving his widow, Caroline, and his three children, Anna, (now Anna Banks,) Sumner and Chester, as his. only heirs-at-law ; that said Maring and his family usually dwelt on the east half of the north-west quarter of said section 23 next before his death, and that the family were living there at that time as their home, said tract being improved by a dwelling house and out-houses, etc.; that the widow, together with her children, continued to reside on said eighty-acre tract after the death of the said Maring, and that she received all the rents, income and profits from both tracts and paid the taxes (except those for 1866) until some time in 1875, when she removed to another State, the children apparently being left behind; that in 1875 one Nathan W. Nettleton was appointed guardian of said children and proceeded to rent the premises and pay taxes until August or September, 1880-, when said widow returned to this State and insisted on said premises being turned over to- her, threatening to cause the guardian trouble for taking charge of them; that thereupon the latter consulted the county judge of said county and was advised by him to. surrender possession and control of said premises to her, which was done. It further appears that in August or September, 1880, she negotiated with Robert O. Fix to convey to him by warranty deed the said premises, the deed being dated October 16, 1880, and recorded December 1 of that year, the consideration mentioned being $1000, and that thereupon Fix entered into possession of said premises. She had in the meantime married Daniel W. Working. It further appears that in 1859 Preston & Bros, recovered a judgment for $197.63 against William Maring in the circuit court of Clark- county; that an execution was issued thereon June 30, 1868; that the sheriff of the county proceeded to sell the eighty-acre tract, and on December 7, 1869,. executed a deed under said sale to Catlin Preston for the eighty acres in said section.23, said deed being recorded the same day; that the record does not show that said judgment was revived; that said Preston did not enter into possession of said premises under said deed; that in 1870 he executed to said widow, Caroline Maring, a quit-claim deed to the said eighty-acre tract. It further appears that in 1867 both the eiglffy-acre and twenty-acre tracts were sold for the taxes of 1866 to one James C. Phillips; that Phillips assigned his certificate to William H. Coons, and that a sheriff’s tax deed was issued to said Coons December 20, 1869, and duly recorded; that no affidavit or record thereof or proof of service can be found as to compliance with the statute then in force as to obtaining tax deeds. The stipulation of facts also states: “It is further agreed that the complainants do not admit nor agree that the deed from the sheriff to Catlin Preston aforesaid, nor the sheriff’s tax deed.to William H. Coons aforesaid, are competent evidence, but it is only agreed relative thereto that the records show the above state of facts.'” The stipulation further shows that William H. Coons, the owner of said tax deed, never entered into possession of said premises under and by virtue of said deed; that he gave a quit-claim deed of said eighty-acre tract, dated November 6, 1880, recorded November 22, 1880, to Robert O. Fix; that Anna Maring (Banks) became of age May 5, 1879, Sumner Maring became of age August 5, 1880, and Chester Maring became of age May 5, 1884; that Caroline Maring (Working) departed this life intestate, December 5, 1912. It further appears that Fix entered into- possession of said land,—both the eighty-acre and the twenty-acre tracts,-—under the deed from Caroline Working in 1880; that said Fix'has conveyed the title in due course to' bona fide purchasers, so that appellee Baker now has a deed to the south half of the eighty-acre tract, appellee Meeker a deed to the north half of said tract, and appellee McDaniel a deed to the twenty-acre tract; that Fix and his respective grantees, and those claiming under them, have been in possession of said property and receiving all the rents, income" and profits therefrom down to the time of the commencement of this suit and have paid all taxes legally assessed against said land. Coons also' quit-claimed the twenty-acre tract to Fix at the same time he deeded the larger tract, but the deed was lost without having been recorded.

The principal question presented for our consideration is whether the Statute of Limitations as to this land has run against appellants. There can be no question from this record that Robert O. Fix and his grantees have had actual, open, exclusive and continuous possession of this land for over thirty years. There is also no doubt that it was held by all these people under a claim of right, and; SO' far as they could show by their acts and words, it has been hostile since Fix entered into possession of the property, in 1880. If it was hostile in its inception, as it would have to be, under the decisions "in this State, (Reuter v. Stuckart, 181 Ill. 529; Downing v. Mayes, 153 id. 330; Lambert v. Hemler, 244 id. 254; 1 Cyc. 1027;) in order to effect a bar of the legal title, then the five essential elements necessary to constitute an effective adverse possession existed. (1 Am. & Eng. Ency. of Law,—2d ed.—795.) The general rule is, that one entering as.a tenant for life cannot hold adversely to those holding in reversion or in remainder. Neither can the life tenant, by conveying to a third person by a deed purporting to convey the absolute title, create a greater or different estate than he himself possesses. The Statute of Limitations does not run against a reversioner or remainder-man during the prior estate, because during that time he has no right of entry. Having no right of entry he is not deemed guilty of laches in failing to assert his rights, during the life estate. (Higgins v. Crosby, 40 Ill. 260; Mettler v. Miller, 129 id. 630; Cassem v. Prindle, 258 id. 11; Lewis v. Barnhart, 145 U. S. 56.) After the death of the original life tenant the continued possession of his vendee becomes adverse as to remainder-men or reversioners.

When did the Statute of Limitations begin to run against appellants ? Counsel for appellees insists that it began to run from the time the mother took possession after returning to this State, in 1880. If so, then it necessarily follows that it continued to run when the possession was transferred by deed to Robert O. Fix and from him to his grantees. The widow, Caroline Maring, was entitled, at her husband’s death, to dower in his real estate, and until the assignment of dower she was entitled, under the statute then in force, to “retain the full possession of the dwelling house in which her husband most usually dwelt next before his death, together with the out-houses and plantation thereto belonging, free from molestation and rent.” (Rev. Stat. 1845, chap. 34, sec. 27, p. 202.) Dower was not assigned before she left this State, in 1875. She remained away for five years. Her right to retain this possession did not differ, in principle, from any other right which the law cast upon her with respect to. the property of her deceased husband. Like other rights it could be defeated by her own acts. (Doane v. Walker, 101 Ill. 628; Mettler v. Miller, supra.) The right to retain this possession under that law was an additional remedy to enforce her assigmnent of dower. By leaving the State and remaining away for five years, during which time her children, under their guardian, were in possession of the property, she undoubtedly lost by abandonment her right to this additional remedy, and under that law was not justified, on her return, in demanding re-possession of the premises, or any part thereof, until dower was assigned. The stipulation of facts states that she asserted her rights, and the guardian, after consulting with the county judge, surrendered possession and control of the premises to hér; but the statement of facts is silent as to whether she based the assertion of her rights on her claim of dowrer or because of the deed that she then held to the eighty-acre tract, upon which the dwelling house was located. The claim of appellants that she demanded possession in order to enforce her dower right is without force, because she asked to have turned over not only the eighty acres of land upon which the dwelling was located, but also the twenty-acre tract two and a half miles away. Her right, as widow, to retain possession of th¿ dwelling house and plantation connected therewith did not give her the right also to retain, until the assignment of dower, this twenty-acre tract. (Hoots v. Graham, 23 Ill. 79; 10 Am. &' Eng. Ency. of Law,—2d ed.—149, and cases cited.) Furthermore, until dower is assigned, although she may release to the owner of the fee her right to use and occupy the premises, a widow can'make no other disposition of her dower interest until it is set off or admeasured to her. She has no right of entry before it is set off -to her. Until assigned it is no estate in the land and cannot be aliened. It is a personal right that lies only in action, and not in grant, before it is assigned. (Hoots v. Graham, supra; Blain v. Harrison, 11 Ill. 384; Best v. Jenks, 123 id. 447; Heisen v. Heisen, 145 id. 658, and cases cited; 10 Am. & Eng. Ency. of Law,—2d ed.—146; 14 Cyc. 960.) After it is assigned it becomes an estate which can be entered upon or conveyed by deed. (Best v. Jenks, supra.) This being the law then and now, on this record it is not reasonable to conclude that the widow, having abandoned her right to have possession until dower was assigned, was demanding her right to> control and possession under the statute in question. She, however, at that time did have a deed from Gatlin Preston to the eighty-acre tract. Under this deed she was the apparent owner of the title thereto'. In discussing a somewhat similar situation in Lewis v. Pleasants, 143 Ill. 271, this court said (p. 287) : “There can be no doubt, we think, that said tax deed constituted color of title, in favor, at least, of her grantees.” Under the rule as applied in that case, it must be said here that this deed constituted color of title, at least to Mrs. Maring’s grantees.

But counsel for appellants insists that neither this deed nor the tax deed was admitted in evidence on the trial below. If they were admitted they came in under the stipulation of facts. That stipulation did not say that they were not admitted in evidence, but that appellants did not admit or agree that those deeds were competent evidence but only agreed that the record showed such deeds. From the provision just referred to, and certain other statements in the stipulation, we think that these deeds were understood to be in evidence but were not conceded to be competent or to constitute valid links in a connected chain of record title. So far as shown from the record they were regular on their face, and therefore the Preston deed, as well as the tax deed, would be sufficient evidence of hostile intent upon which to base adverse possession. Wells v. Wells, 246 Ill. 469; Peabody v. Burri, 255 id. 592; Milliken v. Marlin, 66 id. 13 ; Huls v. Buntin, 47 id. 396; Taylor v. Hamilton, 173 id. 392; Thomas v. Eckard, 88 id. 593. See, also, Noyes v. Heffernan, 153 Ill. 339; 1 Am. & Eng. Ency. of Law, (2d ed.) 847, and cases cited in note, 861, 862, 867; 1 Cyc. 1084.

The Preston deed being in evidence for what it is worth, the trial court was justified in holding, from the stipulation of facts, that the eighty-acre tract was taken possession of by Caroline Maring Working in 1880 under her claim of ownership under said deed from Catlin Preston. This conclusion is strongly supported—at least against Sumner Maring—by the oral testimony taken before the chancellor on the hearing. Robert O. Fix testified that in August or September, 1880, Caroline Maring and said Sumner came together to see him with reference to selling him the one hundred acres of land in question; that Sumner then told him that his mother had.come back with a sheriff’s deed from Catlin Preston; that the mother said that the children did not have any ownership in the property and that she had it under the sheriff’s deed from Preston. Sumner testified,' in rebuttal, that he never told Fix, at that.or any other time, that his mother claimed title to this land by virtue of the Preston deed. He does not, however, deny that he was present with his mother during negotiations for the sale of the one hundred-acre tract to Fix. Neither does he deny that his mother, in his presence, told Fix that she claimed title under the Preston deed. The chancellor heard both these witnesses and was amply justified in holding that Sumner Haring was estopped from claiming any interest in this land against Fix or his grantees. Conceding that Sumner was silent during this talk, under the circumstances sworn to by Fix as to his negotiations with the mother in Sumner’s presence the doctrine of estoppel would apply. It is sometimes said, and is argued here, that a person is not estopped by his silence and omission to give 'notice of existing' rights, but that rule does not apply in case where a land owner has actively encouraged and induced the injured party to act. “In the latter case, the party making the declaration acted on will be estopped although he may have been ignorant of his true rights. The other party may rely on his representations without further inquiry and act upon the assumption that he is cognizant of his rights and knows the condition of his own title.” Robbins v. Moore, 129 Ill. 30; Cross v. Weare Commission Co. 153 id. 499. See, also, Loughran v. Gorman, 256 id. 46.

As already stated, Caroline Maring had no right to retain possession of the said twenty-acre tract two - and .a half miles away from the farm, and evidently uncultivated, under her rights, as widow, under the Quarantine law. Neither did she have the right to enter and take possession of that tract under thát claim or her claim for dower. Until the dower was assigned she could not sell or convey her dower right to a stranger. The deed from Catliti Preston to her did not cover this twenty-acre tract, therefore her deed of this tract to Robert O. Fix in 1880 conveyed no right or interest of any kind. She was a mere volunteer. A deed from a mere volunteer, however, is good color of title, and the presumption, in the absence of evidence to the contrary, is that it was acquired in good faith. Lake Shore and Michigan Southern Railway Co. v. Pittsburg, Ft. Wayne and Chicago Railway Co. 71 Ill. 38, and cases there cited.

Anna (Haring) Banks and Sumner Haring were of age at the time the mother made the sale of the one hundred acre tract to Robert O. Fix, and Chester Haring became of age in 1884. In that year Chester, with his brother, Sumner, visited Robert O. Fix and negotiated a sale, of their interest in a tract of land left them by their grandmother, adjoining the eighty-acre tract here in question. Fix testified that he told them he did not know that he wanted to-buy it then, and they told him he had better buy it as it joined the eighty-acre tract, and it appears from the conversation that Chester then admitted, in substance, by what he said, that Fix was the owner of said eighty-acre tract. Chester himself testified that he made no such statements to Fix, but it is- apparent from the entire conversation that they had the talk at the time and place mentioned, about buying the interest in the property inherited from the grandmother and that they urged upon him its purchase because of its proximity to the eighty-acre tract. The circumstances all tend to support the truth of Fix’s testimony as to- what took place at this conversation. Sumner and Chester Haring both testified on the trial that they knew nothing about their interest in these two tracts, as claimed in their bill, until the year 1913, shortly before this litigation was instituted.

- Obviously, from all the testimony in this record, Robert O. Fix and all of the Harings who- were of age considered that the mother owned both of these tracts at the time she deeded them to Fix, in 1880. Fix, at the time he was negotiating with her for her title or interest, also negotiated for the purchase from Coons of his interest under the tax deeds covering both tracts, and apparently thought that he was purchasing by these various deeds all the interests of everyone in the property and obtaining good title thereto. In the stipulation of facts it is conceded that he entered into possession under the deed 'from Caroline Maring Working. Had he entered into possession under the deeds from Coons, based on the tax deeds, there could have been no question about such possession being hostile to the appellees in its inception and not based in any way upon Caroline Maring Working’s dower right. Under the reasoning in the cases of Lewis v. Pleasants, supra, Dugan v. Follett, 100 Ill. 581, Lewis v. Barnhart, supra, and other cases heretofore cited, we can reach no other conclusion than that Fix took possession of both tracts under a deed which gave him color of title, and that therefore he and his grantees, and those claiming under them, have held adverse possession for the requisite length of time, (twenty years,) so that the Statute of Limitations bars a recovery by appellants. Indeed, the evidence would justify a decree based on adverse possession under color of title and seven years’ payment of taxes.

Counsel for appellants further argues that there could bé no recovery on the ground of adverse possession because no allegation as to the possession being hostile in its inception was made in the cross-bill filed by appellees, and that the allegations, proof and decree must correspond. If it be conceded that the cross-bill was faulty in this regard, it also contained a prayer for general relief, and it is well settled that where a bill in chancery contains a prayer for general relief it will be sufficient to’ sustain any decree warranted by the facts alleged in the bill. (Shields v. Bush, 189 Ill. 534, and cases cited. See, also, Keppel v. Dreier, 187 Ill. 298, and Casstevens v. Casstevens, 227 id. 547.) The facts alleged in this bill and proved on the hearing warranted the findings in this decree.

The decree of the circuit court will be affirmed.

Decree affirmed.  