APPEAL from the Circuit Court of Williamson County; the Hon.
BROCTON LOCKWOOD, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
This case concerns the title to two parcels of land in Williamson County. The trial court held that the plaintiffs, Frank and Betty McCree, owned the land in fee simple by virtue of adverse possession. The defendants have appealed to this court, where they argue that the requirements for adverse possession have not been met, and that the trial court should have partitioned the property in recognition of their interest in it.
The property in question has been in the McCree family since the early years of this century. Tract I consists of 20 acres of farmland, 14 acres of which were owned solely by Katie McCree, and six acres of which were owned by Katie and her husband, John, during her lifetime. Tract II is largely a strip pit, as it was mined during the 1930's, but several of the 25 acres in this land are tillable. It was owned by John McCree in his lifetime.
Katie McCree died intestate on May 16, 1926, leaving as her survivors her husband, John, and their three children, Mary Jones, Viola McCree, and Sam McCree. As the parties stipulated, this left John with a one-third interest in 14 acres of Tract I and a two-thirds interest in the remaining six acres. Mary, Viola, and Sam each owned a two-ninths interest in the 14 acres and a one-ninth interest in the six acres.
On March 31, 1932, Mary Jones and her husband, Fred Jones, conveyed by quitclaim deed all interest in the two tracts in favor of Viola McCree. The parties dispute the legal effect of this document, but, as a quitclaim deed does not pass a future interest or after-acquired title (Ill. Rev. Stat. 1979, ch. 30, par. 8; Bruce v. McCormick (1947), 396 Ill. 482, 72 N.E.2d 333), it could have conveyed only the interest which Mary owned in 1932, namely that portion of Tract I which she inherited from her mother, Katie McCree. Thus, after the execution of the quitclaim deed, John retained his one-third interest in the 14 acres and his two-thirds interest in the six acres. Viola owned four-ninths of the 14 acres, and two-ninths of the six acres, while Sam held two-ninths and one-ninth of those plots, respectively.
On April 2, 1939, John McCree died intestate and his interest in the property passed equally to his three children. After his death, Mary Jones owned one-ninth of the 14 acres, two-ninths of the six acres and one-third of the entire 25-acre parcel known as Tract II. Viola became the owner of five-ninths of the 14 acres, four-ninths of the six acres and one-third of Tract II. By coincidence of arithmetic, Sam retained one-third of each piece of land. This pattern of ownership was maintained for nearly 30 years.
During this period, Sam farmed all of Tract I and two acres of Tract II. According to tenant-farming custom, Sam kept two-thirds of the proceeds from his crops and gave one-third to Viola, but nothing to Mary. Sam and Viola paid the real estate taxes on the land. According to the evidence introduced at trial, there is nothing to show that Mary Jones objected to this arrangement, or requested part of the profits, even though she lived near Viola McCree in Carterville, Illinois.
On September 25, 1967, Viola quitclaimed all interest in both tracts in favor of Sam. Assuming that she had not previously been divested of it by adverse possession, Mary then held the legal title to one-ninth of the 14 acres, two-ninths of the six acres and one-third of Tract II, with Sam holding the remaining portions of the lots. Viola and Sam joined in a conveyance by warranty deed on February 14, 1968. This document purported to convey all of Tract I and Tract II to the plaintiffs, Frank and Betty McCree, who are the son and daughter-in-law of Sam McCree. Frank and Betty McCree paid $1,500 for the property, $1,000 to Viola and $500 to Sam. Mary Jones was not mentioned in this deed.
Following the 1968 transaction, Frank and Betty assumed Sam's position as the cultivator of the land, although they did not notify Mary Jones or her children of the change in circumstances. Frank and Betty retained all profits from the sale of their crops, and paid all real estate taxes on the land, as receipts from 1969 through 1977 show. Mary Jones did not express any interest in the land, according to Frank and Betty McCree.
Viola McCree died in 1970, leaving no husband or issue. Mary Jones died the following year, survived by her five children, who are the defendants in this lawsuit. The Jones heirs did not then claim ownership of the McCree land, and Frank McCree testified that even though he occasionally discussed farming with those of the heirs who lived in and around Williamson County, they did not ask him for a share of the profits from the sale of his crops.
In April 1979, Frank and Betty McCree filed a complaint against the children of Mary Jones to quiet title to the property in themselves. The defendants filed a counterclaim in which they sought partition of the tracts. Upon hearing testimony from the plaintiffs, from a woman whose land adjoined Tract II, and from one of the defendants, the trial court entered judgment for the plaintiffs. In its final judgment order, the court found:
"[t]hat the possession and claims of title to said real estate by Frank McCree and Betty McCree have been under color of title made in good faith and continued possession and payment of taxes for seven years in accordance with the provisions of Chapter 83, Section 6 of the Illinois Revised Statutes."
• 1 In this appeal, defendants argue that the plaintiffs did not notify or oust Mary Jones or her heirs, as is required before a tenant in common may set up a claim of adverse possession against a co-tenant. (Mercer v. Wayman (1956), 9 Ill.2d 441, 137 N.E.2d 815.) While the defendants state a correct rule of law, that rule does not apply to this case. As the court stated in Mercer, actual notice or ouster is not required if a co-tenant gives a deed of the entire property to a stranger in title. (9 Ill.2d 441, 447, 137 N.E.2d 815, 819.) This is because "[a]n entry by the grantee of one tenant in common under a conveyance which purports to convey the whole estate, not acknowledging the right of any other person in the land, amounts to an ouster of co-tenants and the possession of the land is adverse as to them." Waterman Hall v. Waterman (1906), 220 Ill. 569, 574, 77 N.E. 142, 143.
• 2 Nowhere has it been alleged that Frank and Betty McCree had any interest in the land before the execution of the 1968 warranty deed. Before they paid $1,500 and moved onto the land, Frank and Betty had at most an expectation of inheritance in the land, for nemo est haeres viventis. They were not co-tenants of Mary Jones, or of Sam and Viola McCree, but they were only strangers in title. Because Frank and Betty had no interest in the land before the 1968 deed, they are entitled to rely upon the statute of ...