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Isham v. Cudlip

JANUARY 9, 1962.

MAE ISHAM, PLAINTIFF-APPELLEE,

v.

MARY CUDLIP AND MARION RUBLAITUS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of LaSalle County; the Hon. WALTER DIXON, Judge, presiding. Affirmed.

CROW, J.

This is an appeal by the defendants-appellants Mary Cudlip and Marion Rublaitus from a judgment in favor of the plaintiff-appellee Mae Isham in a suit for replevin of a five room frame dwelling located in an area known as Piety Hill, R.R. #1, Oglesby, Illinois. The judgment was that the plaintiff have and retain the property replevined, and for costs. The cause was heard by the court without a jury.

The amended complaint alleged that the plaintiff had been in possession and occupancy of the dwelling from 1917 until the present and that the dwelling is owned by the plaintiff; the land thereunder is owned by Bridget O'Keefe; the plaintiff has paid land rent to Bridget O'Keefe during that period of time; the plaintiff has been assessed as owner of the frame dwelling for personal property taxes and has in fact paid the personal property taxes on that personal property for the foregoing years; on March 20, 1960 the defendants wrongfully took possession of and detained the dwelling house and presently wrongfully detain such personal property from the plaintiff; the property was of a certain value; the plaintiff is lawfully entitled to possession thereof; the plaintiff has been damaged thus far a certain sum; and if the property is not returned the plaintiff will be damaged a certain amount for its value and a certain amount for the wrongful detention and use. The prayer of the complaint is for the return of the property, or its value, and damages for its wrongful taking and detention.

The defendants by their answer denied the allegations of the amended complaint to the effect that they had wrongfully taken possession of and detained the dwelling and presently wrongfully detain it, that the plaintiff is lawfully entitled to possession, that the plaintiff has been damaged, and that if the property is not returned the plaintiff will be damaged for the value thereof or for its detention and use; as to the remaining allegations of the amended complaint the answer says the defendants do not have sufficient knowledge to deny or admit and demands strict proof.

The defendants-appellants' theory is that the judgment granting possession of the property to the plaintiff is against the manifest weight of the evidence both as to the plaintiff's theory of right to possession by gift and right to title by adverse possession; the plaintiff was a tenant at will; the defendants had a superior right to the property; and replevin is not the proper remedy to establish any equitable rights which the plaintiff asserts.

The plaintiff-appellee's theory is that the judgment is not against the manifest weight of the evidence; her right to possession or ownership is based upon sufficient evidence of gift and of title by adverse possession; replevin is the proper remedy, and, in any event, the defendants cannot urge any alleged error arising from an alleged incorrect theory of the case because they consented thereto and acquiesced therein and made no objection thereto in the trial court.

The evidence for the plaintiff was the testimony of the plaintiff herself, the County Clerk, an acquaintance of the plaintiff and William Cudlip, deceased, the Pastor of a Church who was well acquainted with the plaintiff, and several exhibits, consisting of various tax receipts, two endorsements to an insurance policy, various land rent receipts, a letter from the defendants' attorney to the plaintiff, a land lease of December 1, 1923 from the apparent owner of the ground to Herbert Isham, deceased, the plaintiff's husband, a bill of sale to the plaintiff from parties to whom the plaintiff had once sold the dwelling, a death certificate as to Mrs. William Cudlip, a death certificate as to William Cudlip, a bill of sale to the plaintiff from her son, his spouse, and her daughter, and the inventory in the estate of William Cudlip, deceased.

The evidence for the defendants was the testimony of the defendant Mary Cudlip herself, and one exhibit, being an agreement of April 28, 1917 between William Cudlip, deceased, the then apparent owner of the dwelling, and Herbert Isham, deceased, the plaintiff's husband, for the sale of the dwelling to Herbert Isham for a certain amount payable in installments.

There were no objections to any evidence by the plaintiff or defendants.

So far as material, it appears that the plaintiff moved into this home on Piety Hill in 1901. It was then owned by William Cudlip, since deceased. She was not related to him but had lived with him since she was 10 or 11 years old. She lived in this same house from 1901 to 1960 except for a few years. She and Herbert Isham were married in 1908. They lived elsewhere for a few years. They moved back to the dwelling here concerned in 1917 and lived there continuously from 1917 to 1960. In 1917 Mr. and Mrs. William Cudlip moved out and the plaintiff and her husband, Herbert Isham, entered into an agreement with William Cudlip to buy the dwelling, and they made payments for two or three years. She identified several receipts signed by William Cudlip, which were admitted into evidence, but which, for some reason, are not in the record here. She said that after making payments for two years William Cudlip told her and her husband that the dwelling belonged to them. He did not ask for any further payments. They made no further payments. Mrs. William Cudlip died in 1936. William Cudlip died in 1938. The inventory in his estate, by Herbert Cudlip, his son and administrator, filed in and approved by the Probate Court in 1939, does not list this dwelling as a part of his estate. An acquaintance of the plaintiff and William Cudlip said that, at the wake in 1936 following the decease of Mrs. William Cudlip, William Cudlip told her he wanted the plaintiff and her husband to have the "little house", meaning this dwelling. William Cudlip had one child, Herbert Cudlip, who died in 1954. The defendant Mary Cudlip is the wife and the defendant Marion Rublaitus is the daughter of Herbert Cudlip. The plaintiff said that after William Cudlip "gave" them the house she and her husband paid the taxes thereon to the present time. After 1917 the name on the tax records was changed to Herbert Isham. The County Clerk confirmed the payment of taxes by Herbert Isham on the dwelling for 1949 and 1953, most of the time as personal property, and a couple of years as improvements on real estate. Receipted tax bills in the name of Herbert Isham for 1953-1958, the bills for 1953 being for real estate taxes on improvements, and the others for personal property taxes, are in the record. The plaintiff and her husband insured the house over all those years. Two endorsements on a policy for 1932-1935 in his name on the dwelling etc. are in the record. She and her husband paid the land rent (for the land only) to the owners of the land after they got the house from William Cudlip, in 1917, to the present time. She and her husband entered into a land lease agreement in 1923 with the owner of the land. Various receipts for land rent payments by the plaintiff or her husband to the landowner extending from 1920 to 1960 are in evidence. Over the years the plaintiff and her husband made improvements on the house consisting of three new roofs, a chimney to the kitchen, paint, a kitchen porch, sheet rock inside, new windows, doors, screens, and screen doors, garage, electricity, gas, water and sink in the kitchen, and paint inside. Prior to March, 1960, no one ever asserted to the plaintiff any claim of ownership to the dwelling. No one except she and her husband paid any rent thereon, or land rents, or taxes, or insurance premiums, or made any improvements thereto. Her husband, Herbert Isham, died in 1959 and their son, his wife, and their daughter executed thereafter a bill of sale to the plaintiff for this dwelling. She had sold the dwelling to someone else in January, 1960, and had left, though she had left some furniture there. That sale was shortly thereafter cancelled and the purchase price returned. She had locked the house when she left at the time of that sale. The defendants entered it with their own keys, but not with her permission, and their attorney's letter to the plaintiff of March 14, 1960 indicated one of them claimed to be the owner and had "immediate plans for the use of the residence."

The ground lease of December 1, 1923 between Patrick J. O'Keefe, lessor, the apparent then owner of the ground, and Herbert Isham, lessee, the plaintiff's husband, leases the ground for 10 years from December 1, 1923, for a certain rent, and, among other things, provides ". . . and it is further agreed that at the termination of this lease, the said party of the second part (Herbert Isham) may remove all the improvements made by him, . . . leaving the ground in as good condition as when first occupied by him and those from whom he purchased. . . ."

The agreement of April 28, 1917 between William Cudlip, the defendants' predecessor, and Herbert Isham, the plaintiff's husband, provides:

"The said William Cudlip hereby agrees to sell, and the said Herbert Isham hereby agrees to buy the following described goods and chattels to-wit: A one story frame dwelling house and its additions the same being located land leased from Patrick O'Keefe and known as Lot One of the East 30 acres of N. 1/4 and of the N.W. 1/4 of Sec 26, ...


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