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so. But the legislature did not undertake juries of which there is no visible mark on to, divest complainants' title. We do not body, nor accident, nor death or disability retherefore regard this act as having any par- sulting wholly or partly, directly or indirectly, ticular bearing on the rights of the parties. from any of the following causes, or while so It appears, however, from an examination engaged or affected,

* voluntary of the decree that the court decreed the sale exposure to unnecessary danger.' Sarah Alof the property, without appointing commis- lison, the woman from whose room deceased sioners to divide it as required by the stat. attempted to get away at the time he was ute, and it is claimed that this action of the killed, testified that he came to her room court was not erroneous, because this was a about half-past 5 in the evening; that a few proceeding in chancery, and not a petition minutes afterwards policemen came to her for partition under the statute. Section 1, room, hammered at the door with their clubs, c. 106, Rev. St., entitled “Partition,” pro- and demanded admittance, which she revides that when land, tenements, or heredit- fused. That deceased went into the hallway aments are held in joint tenancy, tenancy in twice to get down by the stairs, then recommon, or co-parcenary, any one or more turned and prepared to go out of the front of the persons interested therein may compel window; that he took a piece of selvage that à partition thereof by bill in chancery, as was lying on the floor, torn from bed-ticking heretofore, or by petition in the circuit court cloth, which was about six inches wide. Ho of the proper county. Section 16 declares tried the strength of it over his knee, with that the court, when it sball order a parti- both hands, and then under his foot, and then tion of any premises to be made under the said he knew it would hold him. He then provisions of this act, shall appoint three tied it to the leg of a sewing machine sitting commissioners not connected with any of the near the window, and, holding to the strip, parties to make partition of the premises. started out of the window to let himself Section 17 provides for an oath, and section down to the brick sidewalk about fifteen feet 18 defines the duties, and section 19 provides below. Parties out in the street state that for a report. As before observed, section 1 they saw deceased come out of the window, of the statute provides that the proceeding and let himself down a foot or two, when the may be by bill in chancery, or by petition un- strip of bed-ticking broke, and he fell, strikder the statute. It would therefore seem ing his feet against an iron circle that prothat either mode which might be resorted to jected from the store door beneath him, which would fall within the provisions of the stat-turned him over so that he struck the walk ute, and, if so, section 16, in plain terms, re- upon his head, and received such injury as quires the appointment of commissioners. caused his death. The bare statement of the We are therefore inclined to hold that, manner that deceased came to his death whether the proceeding may be by bill or pe- brings it, we think, clearly within the clause tition, in either event the statute requires the of the policy of .voluniary exposure to uncourt to appoint commissioners. As the necessary danger,' and fully justified the court failed to observe this requirement of trial court in taking the case from the jury, the law, the decree will be reversed, and the and directing them to find for appellee.” cause remanded.

George R. Tilton and W. R. Lawrence, for appellant. F. Bookwalter and J. B. Mann,

for appellee. SHAFFER 0. TRAVELERS' INS. Co. (Supreme Court of Illinois. Oct. 31, 1889.) PER CURIAM. We are entirely satisfied ACCIDENT INSURANCE-VOLUNTARY EXPOSURE. with the judgment of the appellate court.

In an action upon an accident policy, which The evidence clearly proves that the deceased does not cover “death or disability resulting from came to his death by his own voluntary exvoluntary exposure to unnecessary danger,"

where lice officers at the door of the room where he was, no evidence tending to prove otherwise. The it appears that the insured, in order to escape po- posure to unnecessary danger, and there is lowered himself from the window by a strip of case is too plain for argument. Had a verbed ticking, which broke and let him fall, causing dict been rendered for the plaintiff, it would his death, it is proper to instruct the jury to find have been the unquestioned duty of the court for the defendant.

to have set it aside; and it was therefore Appeal from appellate court, third dis- proper to instruct the jury, as was done, to trict.

find for the defendant. The judgment is afAssumpsit in the circuit court of Vermil- firmed. ion county by Saloma Shaffer against the Travelers' Insurance Company. Judgment

(130 Ill. 448) for defendant, affirmed by the appellate court.

SHAW et al. 0. SCHOONOVER. Plaintiff appeals. The opinion of the appellate court, delivered by CONGER, J., was as ADVERSE POSSESSION — SPECIFIC PERFORMANCE

(Supreme Court of Illinois. Oct. 31, 1889.) follows: "This was an action brought to re

WITNESS. cover upon a policy of insurance upon the 1. A daughter whose possession of her father's life of Charles Shaffer, in favor of his mother, land was taken with his consent cannot gain title the appellant. The policy contained, among thereby, through the statute of limitations, as others, the following clause: This insur: against the other heirs of the father.

2. A parol contract by a father to convey land ance does not cover disappearances, nor in-1 to his daughter upon consideration of her living upon and improving the land will not be specific ience; and averring that in March, 1868, the ally enforced after the father's death, where the deceased agreed verbally with appellee that evidence as to the making of the contract is conflicting, and it appears that the daughter, after she should occupy the tract and make such her father's death, offered to buy the land from improvements as she liked for her own comthe other heirs.

fort, in consideration that she would pay the . bands and wives to testify for or against each other taxes as rent for the land; that no time was " as other parties,” a husband is not a competent fixed for the occupancy to continue; that she witness for his wife in a suit where she herself went into possession, and has ever since been cannot testify, under chapter 51, $ 2, because the in possession, under said arrangement, and adverse party'defends as heir of a decedent. Fol-has enjoyed the rents and profits, and paid lowing Way v. Harriman, 18 N. E. Rep. 206.

the taxes; that she thereby became a tenant Appeal from circuit court, Fulton county; at will, or from year to year, of the deceased, JOHN C. BAGBY, Judge.

etc.; and that she and defendants are tenRev. St. Ill. c. 51, § 2, renders a party in-ants in common, as heirs, etc. The circuit competent as a witness “when any adverse court found the issues in favor of appellee, party sues or defends as * * * executor, and rendered a decree in accordance with the administrator, heir, legatee, or devisee of any prayer of the cross-bill. deceased person;" and section 5 provides that

Adverse possession, sufficient to defeat the in certain cases “husband and wife may tes- legal title, must be hostile in its character tify for or against each other in the same and in its inception, and so continue unintermanner as other parties."

ruptedly for 20 years. Turney v. ChamberD. Abbott and H. W. Masters, for appel- lain, 15. III. 271; Bolden v. Sherman, 101 Ill. lants. W. 8. Edwards and Gray & Wag- 483. Twenty years' adverse possession of goner, for appellee.

land under a continuous assertion of owner

ship, hostile to all others, will constitute a MAGRUDER, J. Robert Shaw died intes- bar to a right of entry. Kerr v. Hitt, 75 Ill, tate in Fulton county on February 8, 1888, 51. If the owner permits the occupation of seised in fee of about 360 acres of land in his land for a period of 20 years by a party asthat county, and leaving as his heirs at law serting ownership, he is barred by the statute. eleven children,--six sons and five daughters. Weber v. Anderson, 73 Ill. 439. The posThis is a bill filed on July 3, 1888, in the cir- session must be of such a character as to cnit court of Fulton county, for the parti- clearly show that the occupant claims the tion of said lands, by five of the children, of land as his own exclusively. Ambrose v. whom the appellant Henry Shaw is one, Raley, 58 Ill. 506. A perniissive possession against the widow of the deceased and six of is not sufficient. The possession must have the children, of whom the appellee, Mary Ann been originally taken, or subsequently held, Schoonover, is one, and also against Jacob with an intention to claim the premises as Schoonover, the husband of appellee. De- owner. So long as the possessor declares fault was taken against all of the defendants that he holds in subordination to the better except appellee, and her husband and John title, the possession will be regarded as held W. Shaw, who answered. In her answer by consent. Ang. Lim. (6th Ed.) 8 384. to the bill appellee sets up that as to a cer- Was the possession by appellee hostile in tain 80-acre tract, part of the premises sought its character, and under an exclusive claim to be partitioned, she had been in possession of ownership? We think not. Cyrus Bishop of it for more than 20 years under claim of testifies: “Mrs. Schoonover has claimed to ownership, and she pleaded the 20-years stat- be owning this place during the time she ute of limitations against the prayer of the has lived there. William Swearengen tesbill for a partition of said 80 acres. She also tities: “She treated it, I suppose, as her filed a cross-bill, setting up that in 1867 her own. Always heard them say it was their deceased father made an agreement with her farm.” Elias Shaw says: “They treated it that if she would move upon the 80-acre as their own,-run it and managed it. tract, and live upon it, and make improve- *

She said he had given it to her. ments upon it, he would convey it to her, John Shaw says: “Since father's death she and that she agreed to do so, and did do so, has claimed this land. Never claimed it beand that she has been in possession of it ever fore that I know of.” Mrs. Morgan says: since, claiming to be owner; and further al- | “I think she claimed to be the owner of the leging that the deceased in his life-time, and land,-think she claimed her father had his heirs since his death, have failed to make given it to her.” John Cramblet testifies: her a deed. The cross-bill prays that a com- "She treated it as I would my own farm, so missioner be appointed to make a deed in ac- far as appearances are concerned.” Robert cordance with said agreement, etc. The ten La Master says: “Never heard her make any other children answered the cross-bill, admit-claim. Have treated it as their own, so far ting appellee's occupancy since 1868; but de- as I could see.” The foregoing, with the exnying that any such agreement was ever ception of the evidence of Jacob Schoonover, made, or that her possession has been adverse, which will be referred to hereafter, is all the or that she has occupied the 80 acres under testimony going to show an assertion of claim of ownership, or that she has made ownership by appellee. If it stood alone, it any other improvements than such as were might be sufficient, when taken in connecnecessary for her own benefit and convention with the admitted fact that she was in

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the occupancy of the 80 acres for 20 years be- / it her father's farm, and that she heard apfore the filing of this bill, to make the bar pellee say “they were keeping up the taxes of the statute complete. But there is testi- for the use of it.” Eight witnesses swear mony of a clear and conclusive character that that they heard appellee say, at different she occupied the land by permission of her times, that she and her husband were alfather, and in subordination to his title. lowed the use of the farm in consideration of Peter Shaw, John Barker, and Rebecca Bar- their paying the taxes and keeping up the ker swear that appellee went to her father's improvements. Several of them swear they house in Missouri in 1884 to see him about heard her say so a great many times. Sevthis farm, and that while she was there they eral of the other heirs occupied lands of their were present at a conversation between her deceased father upon the same terms upon and her father, in which she asked him to which the 80 acres in question were occupied deed her the 80 acres, and he refused, saying by appellee. One of them testifies as fol“ he hadn't an 80 apiece for them,” and “it lows: “She [appellee] told me, if I would would be more than her share;" that she hold the farm I was living on, that her (she] then asked him to deed her one 40, and she and Mr. Schoonover would swear that daddy would give him $2,000 for the other 40; but gave it to me." he told her that she and her husband should As to the verbal agreement set up in the buy a farm with their money, and let the cross-bill, the evidence does not satisfy us rest of the children have a show. Rebecca that any such agreement was ever made. Shaw swears that in 1886 she was at appel- The only witness who testifies to it is Jacob lee's house, and appellee told her that they Schoonover, one of the defendants below, and could only live on the land during her fath-husband of the complainant below. Objecer's life-time, and that she would have tion was made to his testimony. The objecbought the farm of her father in 1884, but he tion was overruled, and exception was taken. asked $60 an acre for it, which was more He was not a competent witness. His wife than it was worth. Abram Weaver, Dan was not suing, as heir, for her inheritance. Harris, Alexander Shaw, and IIenry Shaw She was claiming to be the owner of the 80 testify that there was a meeting of the heirs acres by another title than that acquired unat Henry Shaw's house on April 17, 1888, at der the statute of descents. The real dewhich appellee and her husband were pres- fendants in the suit were her brothers and ent; that appellee and her husband made no sisters, who were adverse parties, defending claim to own the farm, but made offers for as the heirs of their deceased father, Robert its purchase, and, no purchase being agreed Shaw. She being herself incompetent as a upon, said they would pay what rent was witness, her husband was also incompetent, right; that her husband offered $4,000, which under the rule laid down in Treleaven v. was not considered enough; that, when he Dixon, 119 111. 548, 9 N. E. Rep. 189, and Way spoke about “paying cash rent,” she said: v. Harriman, 126 Ill. 132, 18 N. E. Rep. 206. “By God, pay grain rent, Jake.” One or One witness testified that he once heard the more of these witnesses say that it was three intestate say he had told appellee she should weeks after this meeting before appellee set have the land if she would move upon it. up her claim of ownership. John Taylor Three others say that, some eight or ten years swears that he met appellee and her husband before the time of giving their evidence, they after the meeting of April 17, 1888, and they heard the intestate say he intended or expected told him they had offered $4,000 for the land, or was going to give the farm to appellee. The and that the heirs wanted them to pay rent, testimony of the four last-named witnesses is and that they asked witness whether he all the proof there is of the alleged agreement. thought rent could be collected of them. This testimony, besides being overborne by John Berry swears that about May 1, 1888, the evidence which has already been referred he saw appellee and her husband, and some- to, and by much more in the record that thing was said about said meeting, and her might be referred to, is of the kind that was husband said he would give $55 per acre for condemned by this court in Bailey v. Edthe land. Bessie Ford swears that in 1884 munds, 64 Ill. 125, and Clark v. Clark, 122 she heard appellee say that she wished she Ill. 388, 13 N. E. Rep. 553. The cross-bill had a piece of land to build a house upon; in this case is a bill to enforce the specific "heard her say she was living on her father's performance of a parol contract for the conland." Henry Shaw says: “I have fre- veyance of real estate. Specific performance quently heard her say it was daddy's land.” is not a matter of right, but of sound judicial Mr. Barclay swears that in March, 1888, he discretion. A verbal contract respecting heard appellee say she was willing to take land will not be enforced unless it is estabthe land at $4,000, and that she never claimed lished by clear and conclusive proof. Woods the land belonged to her.

to her. One witness v. Evans, 113 Ill. 186; Wallace v. Rappleye, swears that he heard appellee once say that, 103 Ill. 229; Clark v. Clark, supra. Such if her father would furnish the tile, they proof is wanting here. Moreover, the conwould tile the place. George Morgan testi-tract sought to be enforced in this case is not fies that the land was called the old man's only a parol contract for the conveyance of land after Schoonover went there. Elizabeth real estate, but it makes a different distribuMorgan swears that appellee told her “she tion of the property of a deceased person was living on her father's farm,” and called from that provided by law. “The evidence relied upon to establish such a contract is spondents further show that before the filing looked upon with jealousy, and should be of the bill in this cause, to-wit, on the 1st weighed in the most scrupulous manner.” day of October, A. D. 1888, Ellen Fitzgerald, Woods v. Evans, supra. The decree of the the widow of the said Maurice Fitzgerald, circuit court is reversed, and the cause is re- deceased, prosecuted and perfected an appeal manded to the circuit court, with directions from the said judgment of the county court to dismiss the cross-bill, and to proceed un-in said cause (i. e., probating said will) to der the original bill in accordance with the the circuit court of said county and state, views herein expressed.

which said appeal is still pending; and your

respondents aver that, said appeal being (130 Ill. 437)

pending as aforesaid, this honorable court FIELDING et al. v. FITZGERALD et al.

has no power or jurisdiction to hear and de

termine the allegations in said bill contained." (Supreme Court of Illinois. Oct. 31, 1889.)

It does not appear that this was accompanied AMENDMENT OF PLEADING.

by any affidavit or other evidence showing Where, in answer to a bill in equity to con- its truthfulness. The court overruled the test a will, defendants admit that the will was du

motion. ly probated, and then, after a verdict has been

There is no bill of exceptions or rendered against the validity of the will, and a certificate of evidence, properly signed, in motion for a new trial overruled, ask leave to the record; and the only question, therefore, amend their answer so as to show that an appeal that we can consider is, did the court err in from the order admitting the will to probate is still pending, it is proper to refuse to allow such refusing to allow the proposed amendment to amendment when the truth of its allegations is be made to the answer? not supported by affidavit, and no evidence of mis.

Waiving all question of the effect of the take is shown.

amendment if it had been allowed, we think Error to circuit court, Sangamon county; the court ruled properly in not allowing the JAMES A. CREIGHTON, Judge.

amendment to be made, for the reason that James M. Graham and T. S. Casey, for the motion was not accompanied by an affidaplaintiffs in error. Patton & Hamilton and vit, or any other evidence, proving the truth Palmers & Shutt, for defendants in error. of the matters of the proposed amendment.

The answer filed admitted the truth of the SCHOLFIELD, J. This was a bill by Elien allegation that the will had been duly proFitzgerald, widow, and certain other per- bated. It would, to say the least, be but sons, as heirs at law of Maurice Fitzgerald, trifling with the court to allow a party, as deceased, to contest an instrument purport- here, after proceeding to the trial of the issue ing to be the last will and testament of said presented by his answer, and being defeated Maurice Fitzgerald, deceased. The bill was thereon, upon his mere request, unsupported filed under the section 7, c. 148, Rev. St. by any evidence of mistake in his former 1874, entitled “Wills;” and it is, among answer, to take back the admission, and preother things, therein alleged that the said sent a new issue,—that of whether the will Maurice made his will, and died testate, and has been probated, within the meaning of ihat after his death, and "on the 14th day of that word as used in the section of the statSeptember, 1888, the will was duly probated ute under which the bill was filed. Such a in the county court of Sangamon county by practice would lead to oppression, and it is William Fielding, the executor therein clearly beyond any discretion vested in the named; that the said Fielding entered into court. Maher v. Buil, 39 Ill. 531; Higgins bond, and took upon himself the duties of v. Curtiss, 82 Iil. 28. Finding no error in such executor." Fielding and certain heirs the record, the decree is affirmed. at law of the deceased are made defendants. Fielding filed an answer, wherein he “ad

(130 Ill. 442) mits that Maurice Fitzgerald died at the

HOLDERMAN et al. v. GRAY. time stated he made his will; that the will was duly probated, and that he was named

(Supreme Court of Illinois. Oct. 31, 1889.) and appointed executor, etc.; that he gave

SPECIFIC PERFORMANCE-EVIDENCE. bond as required,” etc. On the 7th of De

1. Where, in a suit to compel the conveyance cember, 1888, being one of the days of the the land to defendant's ancestor; that the latter

of land, it appears that complainant's wife deeded November term of the court, upon motion of never exercised any acts of ownership over it, the proponents of the will, the cause was dis- and admitted that he held it in trust for complainmissed as to Ellen Fitzgerald and Charles ant; and there is no proof that he paid any consid

eration for his deed,-a decree ordering conveyWarner; and thereafter, on the same day, ance will be affirmed. the issue presented by the bill and answer 2. Evidence that complainant, while the land was tried by a jury, who returned a verdict was held by defendant's ancestor, had told the that “the writing produced is not the last that he had no property, is not of controlling im

sheriff, in answer to a demand under execution, will and testament of Maurice Fitzgerald, portance, in the absence of allegations in the andeceased;" and thereupon the proponents, by swer that the conveyance was made with intent to

defraud creditors. their counsel, entered a motion for a new trial, which was overruled by the court. At Appeal from circuit court, Ford county; the January term, 1889, of the court, pro- ALFRED SAMPLE, Judge. ponents asked leave to amend their answers J. B. Mann, for appellants. Thomas F. by adding thereto the following: “Your re- Tipton, for appellee.

CRAIG, J. This was a bill in equity, the making of the deed, paid the taxes, as he brought by Edward C. Gray against L. S. had done from the time he made the purHolderman and George H. Edwards and oth- chase, in 1867. Wyman exercised no acts ers, heirs at law of Charles H. Wyman, alias of ownership over the property, and, when Edwards, deceased, to enforce a conveyance spoken to in regard to it, referred parties to of lots 1, 2, 3, and 4, block 60, in Mix's addi- the complainant. Wyman at one time owned tion to Paxton. It appears from the testi- certain lots in the same locality where these mony heard on the trial that the lots origi- lots are situated; and after he had sold them, nally belonged to James Mix, who sold them and while he held the deed to the property in by contract for deed to J. R. Francis. Fran- controversy, he declared that he had “got cis transferred the contract to Shepardson, clear of the last piece of property he owned and, in 1867, Shepardson sold the contract to in Paxton.” Indeed, Wyman never at any Edward C. Gray, the complainant. Gray at time after the conveyance to him, during a once took possession of the lots, and subse- period of nearly 12 years before his death, quently paid the balance of the purchase treated the property as a person wouid who money; and on March 2, 1871, James Mix owned it; and, while there may be some doubt conveyed the property to Frankie V. Gray, in reference to the true motive of the contract wife of complainant. On the 10th day of between Wyman and the complainant when December, 1875, Frankie V. Gray and com- the deed was made, we think it is apparent plainant conveyed the lots to Charles H. Wy- that Wyman paid nothing for the property, man. At the time this conveyance was and did not secure the deed as a purchaser. made, complainant and his wife had no chil- If, then, there was no consideration for the dren. The wife was in poor health, and it is deed, the next question to be determined is contended by the complainant that the deed whether Wyman held the property in trust was executed in pursuance of an agreement for complainant. The contract for the lots entered into between himself, his wife, and was purchased, in the first instance, by comWyman that Wyman was to hold the title to plainant in 1867. This is shown by Shepthe lots in bis name, and in the event that ardson, who testified that he sold the contract Frankie V. Gray recovered her health the to E. C. Gray, and he paid for the same. deed was to be returned, but, if she died, Shepardson assigned the contract to complainthen Wyman was to convey to the complain- ant. It is true that Gray subsequently asant, or such other person as he might direct. signed the contract to Frankie V. Norton, The answer of defendants admitted the con- whom he subsequently married; but there is veyance of premises by Mix to Frankie v. no evidence that she paid anything for the Gray; denied that any agreement of any kind assignment, and we do not regard the assignwas made by and between said complainant ment to her of any special importance. Aftand said Charles H. Wyman, alias Austin L. er a due consideration of all the evidence, we Edwards, as charged in bili of complaint; de- think it fair to conclude that complainant nied that said conveyance was made to Wy- prrchased the property, and owned it when man upon the trusts in bill mentioned, or up- the conveyance was made to Wyman. on any trust or confidence whatever; averred The complainant testified that Wyman paid that if any such agreement as mentioned in nothing for the property, and that he held it said bill was made, or any such trust arose be- in trust to be conveyed to him, or to such tween complainant and the said Wyman, the person as he might direct. He also testified same was not manisested by any writing that he received two letters from Wyman, signed by said Wyman, and the same was after the deed was executed, in which Wyvoid under and by virtue of the ninth sec-man wrote over his own signature that, in tion, c. 59, Rev. St. Ill., and the respondents case complainant's wife recovered, he was to rely upon the defense of such statute as fully convey the property back to her, but, if she as if specially pleaded. The complainant filed died, then he was to convey to complainant, a replication to the answer, and on the hear- or to any other person complainant might diing on the pleadings and evidence the court rect. If this evidence was competent, it rendered a decree in favor of the complainant might, in connection with the other facts as prayed for in the bill, to reverse which the proven, authorize the court to render the dedefendants appealed.

cree; but it is said that the defendants inThe deed from Frankie V. Gray and com- terposed their defense as heirs of Charles H. plainant to Charles H. Wyman recites a con- Wyman, deceased, and under the statute the sideration of $1,000 as paid for the lots; but evidence of complainant is inadmissible. it is not shown by the evidence that any con- Under the terms of our statute, we do not sideration was in fact paid by Wyman for the think that the evidence of complainant was deed, and we think it is apparent from an admissible. But, excluding complainant's examination of all the evidence that no con- evidence, he established substantially the sideration ever passed from Wyman for the same facts by the witness Earl. Earl, as he property. Wyman never went into the pos- testified, had two conversations with Wysession of the property, but the possession re-man, in which he stated how he held the title mained in complainant after the deed was to the lots; and he testified that he saw and executed, as it did before. Wyman paid no read the two letters which complainant testi

taxes on the property after the deed was made fied were written by Wyman. It is said this • to him; but the complainant, each year after witness is not to be believed; but he was not

v.22N.E.no.18-38

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