Jehu R. Cover died 19 Jan 1902, at his home in Anna, of kidney trouble, aged 56 years, 1 month, 23 days, and was buried in Anna Cemetery. He was born in Jonesboro in 1845, the son of Daniel and Mary Cover. His father was from Maryland and his mother from North Carolina, both coming to Union County when quite young. They moved from Jonesboro to Anna when Jehu was a small boy. He worked in a saw mill at Mill Creek and later at Anna and once owned and operated a saw mill for box material where Bruchauser's flour mill stands. He was city Alderman.
He married on 19 Jan 1872, Melissa Huston.
** Melissa died February 24, 1880, she was 25 years old- their baby died February 16, 1880 living only 12 hours. They have death certificates..**
They had four children, three of whom were living;
Mrs. F.M. Culley of McClure, Alexander County,
Mrs. W.W. Stokes
Charles Cover of Anna.
His first wife died in February 1880.
Then he married Josephine Penrod. They had two children,
Ford Cover,14, and Bessie Cover,10. Four other children died young.
He also left two sisters and one brother, Mrs. Isabelle Brown of Murphysboro, Jackson County, and Mary Cover and Michael Cover of
Anna.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
BESSIE COVER v. CLARK JAMES et al. Opinion filed October 24, 1905.
Heard in Illinois Supreme Court 1906-
1. DEEDS—section p of the Conveyance act must be construed in connection with section JJ. Section 9 of the Conveyance act, providing that a deed substantially in the form therein prescribed shall be deemed to convey a fee simple estate, must be construed in connection with section 13 of the same act, under which, if a less estate is limited by express words or appears to have been granted by construction or operation of law, a fee simple estate does not pass. 2. SAME—what is not essential to creation of joint tenancy. It is not essential to the creation of a joint tenancy by deed that the deed use the express words of section 5 of the Conveyance act, declaring the estate to pass "not in tenancy in common but in joint tenancy." 3. SAME—deed construed as passing joint estate for life with remainder to the survivor. A deed to the grantor's two children, conveying and warranting to them certain described premises and providing that in case of the death of either of them "the other to havet the whole property without litigation," passes a joint tenancy for life to the grantees, with remainder in fee simple to the survivor. APPEAL from the Circuit Court of Union county; the Hon. WILLIAM N. BUTLER, Judge, presiding. Appellant ,Bessie Cover, a minor,by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the titlet to the land decreed to be in her. The bill, as amended, averred that Jehu R. Cover, father of appellant, in his life time was the owner in fee of certain lands therein described, and on October 29, 1901, he and his wife,by a warranty deed,conveyed said premises to their children, A. Ford Cover and the appellant, Bessie Cover, the material parts of which deed are as follows: "This indenture witnesseth: That the grantors, Jehu R. Cover and Josie Cover, his wife, of the city of Anna, in the county of Union and State of Illinois, for and in consideration of the sumof $2400 in hand paid, convey and warrant to A. Ford Cover and Bessie Cover, of the city of Anna, county of Union andS State of Illinois, the following described real estate, to-wit, * * * here by releasing and waiving all rights under and by virtue of the homestead exemption laws of this State. In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation." The bill further averred that the grantors meant and intended by said deed to make said grantees joint tenants, with the right of survivorship, and that the effect of said deed, in law and equity,was to make said grantees joint tenants and to convey a contingent remainder in them to the survivor; that on June 1, 1902, the grantees went into possession of the premises under said deed, and the said Bessie Cover is now in the actual possession thereof and has paid all taxes due there on; that the said Jehu R. Cover left surviving him, his widow, Josie Cover, and Charles Cover, Jessie Stokes, Dollie Culley, A. Ford Cover and Bessie Cover, his only heirs-at-law; that on July 1, 1904, A. Ford Cover died, leaving as his heirs-at-law Josie Cover, Bessie Cover, Jessie Stokes, Charles Cover and Dollie Culley; that on May 1, 1902, the said Clark James, one of the appellees, obtain a judgment against Dollie Culley, and caused execution to be levied by the sheriff of Union county upon her alleged interest in the said lands, which were sold on October 24, 1904, to Clark James and a certificate of purchase issued therefor; that the said Jennie Stokes, Charles Cover and Dollie Culley claim some interest in said lands as heirs of A. Ford Cover; that the certificate of purchase is a claim upon the title of Bessie Cover in said premises, and the claim of the other heirs tends to depreciate the value of said land. The prayerof the bill is that the certificate of purchase be set aside and declared void as against the said Bessie Cover and as a claim upon her title, and that the same be delivered up and canceled, and that the title of said land be decreed to be in the said Bessie Cover. The appellee Clark James filed his general (dspecialdemurrer ?) to said bill, and the other appellees, Charles Cover, Jessie Stokes and Dollie Culley, filed their cross-bill, alleging that the deed of conveyance to A. Ford Cover and Bessie Cover was not in joint tenancy, but as tenants in common, and that complainants in the cross-bill were the heirs of the said A. Ford Cover, and prayed partition of the premises. The demurrer to the original bill, as amended, was sustained, and appellant electing to stand by her bill the same was dismissed for want of equity. A motion was then made by appellant to strike the cross-bill from the files, which motion was over ruled, and an appeal has been prosecuted to this court.
Mr. JUSTICE WILKIN delivered the opinion of the court: The decision of the case depends upon the proper construction to be placed on the deed from Jehu R. Cover to A. Ford Cover and Bessie Cover. The contention of counsel for the appellant is, that the deed conveyed the property therein mentioned to the grantees as joint tenants for life, with the remainder to the survivor of them, or conveyed a contingent remainder to the survivor,and therefore all right, title and interest in the said A. Ford Cover ceased upon his death. He died before the levy and the sale underwhich theappelleeJames claims, andif appellant's position is correct he took nothing by the purchase, andhis certificateof saleshould havebeensetaside; also,if A. Ford Cover took but a life estate nothing descended to his heirs, and the motion of appellantto strike their cross-bill from the files should have been sustained. On the other hand, it is insisted on behalf of the appellees that saiddeedconveyedto thegrantees the estateinfee simple as tenants incommon,andtherefore the undividedone-half of the same, upon the death of A. Ford Cover, descended to his heirs, and the interest of Dollie Culley,oneof such heirs, was subject to levy and sale on the judgment of said Clark James. Section 13 of chapter 30 of Hurd's RevisedStatutes of 1903,page441, provides that "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritancebenotadded, shall bedeemed a fee simpleestate of inheritance,if a less estatebenotlimited byexpress words ordonot appearto havebeengranted,conveyedordevisedbyconstructionor operation of law." Here the deed does expressly state that in case of the deathof eitherof thegrantees thesurvivor shall havethewhole of the property, thus clearly limiting the estate granted to both jointly for life, with the right of survivorship. It is insisted, however,bycounselfor appellees that this last provision cannot be given effect becauseitdoes not appear in the granting clause of the deed,or, as is said, does appearinthe habendum, and reliance is placed upon the case of Palmer v. Cook, 159 I11. 300. In that case a deed somewhat similar to the one now before the court was construed as conveying the fee simple titleto the grantees, and it was heldthat the expression, "in case either of the grantees dies without an heir her interest to revert to the survivor," was an attempt to mounta fee upona fee, andwas thereforevoid. Thegranting clauseof that deedwas heldto convey the fee simple titleundertheprovisions of section9 of chapter 30, supra. If a fee simple titlewas infact granted,itis clearthat that estate could not be limited or qualified by the subsequent language. Merely becausethe deed was substantially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and provides that everydeed substantially inthat form shall bedeemed andheldto bea conveyance in fee simple to the grantee, etc.;but it must be construedinconnection with section 13, supra, under which, if a less estatebelimited byexpress words or appearto havebeengranted,conveyedordevisedby construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estateof inheritance,shall notbe deemed to convey a fee simple estate.
He married on 19 Jan 1872, Melissa Huston.
** Melissa died February 24, 1880, she was 25 years old- their baby died February 16, 1880 living only 12 hours. They have death certificates..**
They had four children, three of whom were living;
Mrs. F.M. Culley of McClure, Alexander County,
Mrs. W.W. Stokes
Charles Cover of Anna.
His first wife died in February 1880.
Then he married Josephine Penrod. They had two children,
Ford Cover,14, and Bessie Cover,10. Four other children died young.
He also left two sisters and one brother, Mrs. Isabelle Brown of Murphysboro, Jackson County, and Mary Cover and Michael Cover of
Anna.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
BESSIE COVER v. CLARK JAMES et al. Opinion filed October 24, 1905.
Heard in Illinois Supreme Court 1906-
1. DEEDS—section p of the Conveyance act must be construed in connection with section JJ. Section 9 of the Conveyance act, providing that a deed substantially in the form therein prescribed shall be deemed to convey a fee simple estate, must be construed in connection with section 13 of the same act, under which, if a less estate is limited by express words or appears to have been granted by construction or operation of law, a fee simple estate does not pass. 2. SAME—what is not essential to creation of joint tenancy. It is not essential to the creation of a joint tenancy by deed that the deed use the express words of section 5 of the Conveyance act, declaring the estate to pass "not in tenancy in common but in joint tenancy." 3. SAME—deed construed as passing joint estate for life with remainder to the survivor. A deed to the grantor's two children, conveying and warranting to them certain described premises and providing that in case of the death of either of them "the other to havet the whole property without litigation," passes a joint tenancy for life to the grantees, with remainder in fee simple to the survivor. APPEAL from the Circuit Court of Union county; the Hon. WILLIAM N. BUTLER, Judge, presiding. Appellant ,Bessie Cover, a minor,by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the titlet to the land decreed to be in her. The bill, as amended, averred that Jehu R. Cover, father of appellant, in his life time was the owner in fee of certain lands therein described, and on October 29, 1901, he and his wife,by a warranty deed,conveyed said premises to their children, A. Ford Cover and the appellant, Bessie Cover, the material parts of which deed are as follows: "This indenture witnesseth: That the grantors, Jehu R. Cover and Josie Cover, his wife, of the city of Anna, in the county of Union and State of Illinois, for and in consideration of the sumof $2400 in hand paid, convey and warrant to A. Ford Cover and Bessie Cover, of the city of Anna, county of Union andS State of Illinois, the following described real estate, to-wit, * * * here by releasing and waiving all rights under and by virtue of the homestead exemption laws of this State. In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation." The bill further averred that the grantors meant and intended by said deed to make said grantees joint tenants, with the right of survivorship, and that the effect of said deed, in law and equity,was to make said grantees joint tenants and to convey a contingent remainder in them to the survivor; that on June 1, 1902, the grantees went into possession of the premises under said deed, and the said Bessie Cover is now in the actual possession thereof and has paid all taxes due there on; that the said Jehu R. Cover left surviving him, his widow, Josie Cover, and Charles Cover, Jessie Stokes, Dollie Culley, A. Ford Cover and Bessie Cover, his only heirs-at-law; that on July 1, 1904, A. Ford Cover died, leaving as his heirs-at-law Josie Cover, Bessie Cover, Jessie Stokes, Charles Cover and Dollie Culley; that on May 1, 1902, the said Clark James, one of the appellees, obtain a judgment against Dollie Culley, and caused execution to be levied by the sheriff of Union county upon her alleged interest in the said lands, which were sold on October 24, 1904, to Clark James and a certificate of purchase issued therefor; that the said Jennie Stokes, Charles Cover and Dollie Culley claim some interest in said lands as heirs of A. Ford Cover; that the certificate of purchase is a claim upon the title of Bessie Cover in said premises, and the claim of the other heirs tends to depreciate the value of said land. The prayerof the bill is that the certificate of purchase be set aside and declared void as against the said Bessie Cover and as a claim upon her title, and that the same be delivered up and canceled, and that the title of said land be decreed to be in the said Bessie Cover. The appellee Clark James filed his general (dspecialdemurrer ?) to said bill, and the other appellees, Charles Cover, Jessie Stokes and Dollie Culley, filed their cross-bill, alleging that the deed of conveyance to A. Ford Cover and Bessie Cover was not in joint tenancy, but as tenants in common, and that complainants in the cross-bill were the heirs of the said A. Ford Cover, and prayed partition of the premises. The demurrer to the original bill, as amended, was sustained, and appellant electing to stand by her bill the same was dismissed for want of equity. A motion was then made by appellant to strike the cross-bill from the files, which motion was over ruled, and an appeal has been prosecuted to this court.
Mr. JUSTICE WILKIN delivered the opinion of the court: The decision of the case depends upon the proper construction to be placed on the deed from Jehu R. Cover to A. Ford Cover and Bessie Cover. The contention of counsel for the appellant is, that the deed conveyed the property therein mentioned to the grantees as joint tenants for life, with the remainder to the survivor of them, or conveyed a contingent remainder to the survivor,and therefore all right, title and interest in the said A. Ford Cover ceased upon his death. He died before the levy and the sale underwhich theappelleeJames claims, andif appellant's position is correct he took nothing by the purchase, andhis certificateof saleshould havebeensetaside; also,if A. Ford Cover took but a life estate nothing descended to his heirs, and the motion of appellantto strike their cross-bill from the files should have been sustained. On the other hand, it is insisted on behalf of the appellees that saiddeedconveyedto thegrantees the estateinfee simple as tenants incommon,andtherefore the undividedone-half of the same, upon the death of A. Ford Cover, descended to his heirs, and the interest of Dollie Culley,oneof such heirs, was subject to levy and sale on the judgment of said Clark James. Section 13 of chapter 30 of Hurd's RevisedStatutes of 1903,page441, provides that "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritancebenotadded, shall bedeemed a fee simpleestate of inheritance,if a less estatebenotlimited byexpress words ordonot appearto havebeengranted,conveyedordevisedbyconstructionor operation of law." Here the deed does expressly state that in case of the deathof eitherof thegrantees thesurvivor shall havethewhole of the property, thus clearly limiting the estate granted to both jointly for life, with the right of survivorship. It is insisted, however,bycounselfor appellees that this last provision cannot be given effect becauseitdoes not appear in the granting clause of the deed,or, as is said, does appearinthe habendum, and reliance is placed upon the case of Palmer v. Cook, 159 I11. 300. In that case a deed somewhat similar to the one now before the court was construed as conveying the fee simple titleto the grantees, and it was heldthat the expression, "in case either of the grantees dies without an heir her interest to revert to the survivor," was an attempt to mounta fee upona fee, andwas thereforevoid. Thegranting clauseof that deedwas heldto convey the fee simple titleundertheprovisions of section9 of chapter 30, supra. If a fee simple titlewas infact granted,itis clearthat that estate could not be limited or qualified by the subsequent language. Merely becausethe deed was substantially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and provides that everydeed substantially inthat form shall bedeemed andheldto bea conveyance in fee simple to the grantee, etc.;but it must be construedinconnection with section 13, supra, under which, if a less estatebelimited byexpress words or appearto havebeengranted,conveyedordevisedby construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estateof inheritance,shall notbe deemed to convey a fee simple estate.
Jehu R. Cover died 19 Jan 1902, at his home in Anna, of kidney trouble, aged 56 years, 1 month, 23 days, and was buried in Anna Cemetery. He was born in Jonesboro in 1845, the son of Daniel and Mary Cover. His father was from Maryland and his mother from North Carolina, both coming to Union County when quite young. They moved from Jonesboro to Anna when Jehu was a small boy. He worked in a saw mill at Mill Creek and later at Anna and once owned and operated a saw mill for box material where Bruchauser's flour mill stands. He was city Alderman.
He married on 19 Jan 1872, Melissa Huston.
** Melissa died February 24, 1880, she was 25 years old- their baby died February 16, 1880 living only 12 hours. They have death certificates..**
They had four children, three of whom were living;
Mrs. F.M. Culley of McClure, Alexander County,
Mrs. W.W. Stokes
Charles Cover of Anna.
His first wife died in February 1880.
Then he married Josephine Penrod. They had two children,
Ford Cover,14, and Bessie Cover,10. Four other children died young.
He also left two sisters and one brother, Mrs. Isabelle Brown of Murphysboro, Jackson County, and Mary Cover and Michael Cover of
Anna.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
BESSIE COVER v. CLARK JAMES et al. Opinion filed October 24, 1905.
Heard in Illinois Supreme Court 1906-
1. DEEDS—section p of the Conveyance act must be construed in connection with section JJ. Section 9 of the Conveyance act, providing that a deed substantially in the form therein prescribed shall be deemed to convey a fee simple estate, must be construed in connection with section 13 of the same act, under which, if a less estate is limited by express words or appears to have been granted by construction or operation of law, a fee simple estate does not pass. 2. SAME—what is not essential to creation of joint tenancy. It is not essential to the creation of a joint tenancy by deed that the deed use the express words of section 5 of the Conveyance act, declaring the estate to pass "not in tenancy in common but in joint tenancy." 3. SAME—deed construed as passing joint estate for life with remainder to the survivor. A deed to the grantor's two children, conveying and warranting to them certain described premises and providing that in case of the death of either of them "the other to havet the whole property without litigation," passes a joint tenancy for life to the grantees, with remainder in fee simple to the survivor. APPEAL from the Circuit Court of Union county; the Hon. WILLIAM N. BUTLER, Judge, presiding. Appellant ,Bessie Cover, a minor,by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the titlet to the land decreed to be in her. The bill, as amended, averred that Jehu R. Cover, father of appellant, in his life time was the owner in fee of certain lands therein described, and on October 29, 1901, he and his wife,by a warranty deed,conveyed said premises to their children, A. Ford Cover and the appellant, Bessie Cover, the material parts of which deed are as follows: "This indenture witnesseth: That the grantors, Jehu R. Cover and Josie Cover, his wife, of the city of Anna, in the county of Union and State of Illinois, for and in consideration of the sumof $2400 in hand paid, convey and warrant to A. Ford Cover and Bessie Cover, of the city of Anna, county of Union andS State of Illinois, the following described real estate, to-wit, * * * here by releasing and waiving all rights under and by virtue of the homestead exemption laws of this State. In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation." The bill further averred that the grantors meant and intended by said deed to make said grantees joint tenants, with the right of survivorship, and that the effect of said deed, in law and equity,was to make said grantees joint tenants and to convey a contingent remainder in them to the survivor; that on June 1, 1902, the grantees went into possession of the premises under said deed, and the said Bessie Cover is now in the actual possession thereof and has paid all taxes due there on; that the said Jehu R. Cover left surviving him, his widow, Josie Cover, and Charles Cover, Jessie Stokes, Dollie Culley, A. Ford Cover and Bessie Cover, his only heirs-at-law; that on July 1, 1904, A. Ford Cover died, leaving as his heirs-at-law Josie Cover, Bessie Cover, Jessie Stokes, Charles Cover and Dollie Culley; that on May 1, 1902, the said Clark James, one of the appellees, obtain a judgment against Dollie Culley, and caused execution to be levied by the sheriff of Union county upon her alleged interest in the said lands, which were sold on October 24, 1904, to Clark James and a certificate of purchase issued therefor; that the said Jennie Stokes, Charles Cover and Dollie Culley claim some interest in said lands as heirs of A. Ford Cover; that the certificate of purchase is a claim upon the title of Bessie Cover in said premises, and the claim of the other heirs tends to depreciate the value of said land. The prayerof the bill is that the certificate of purchase be set aside and declared void as against the said Bessie Cover and as a claim upon her title, and that the same be delivered up and canceled, and that the title of said land be decreed to be in the said Bessie Cover. The appellee Clark James filed his general (dspecialdemurrer ?) to said bill, and the other appellees, Charles Cover, Jessie Stokes and Dollie Culley, filed their cross-bill, alleging that the deed of conveyance to A. Ford Cover and Bessie Cover was not in joint tenancy, but as tenants in common, and that complainants in the cross-bill were the heirs of the said A. Ford Cover, and prayed partition of the premises. The demurrer to the original bill, as amended, was sustained, and appellant electing to stand by her bill the same was dismissed for want of equity. A motion was then made by appellant to strike the cross-bill from the files, which motion was over ruled, and an appeal has been prosecuted to this court.
Mr. JUSTICE WILKIN delivered the opinion of the court: The decision of the case depends upon the proper construction to be placed on the deed from Jehu R. Cover to A. Ford Cover and Bessie Cover. The contention of counsel for the appellant is, that the deed conveyed the property therein mentioned to the grantees as joint tenants for life, with the remainder to the survivor of them, or conveyed a contingent remainder to the survivor,and therefore all right, title and interest in the said A. Ford Cover ceased upon his death. He died before the levy and the sale underwhich theappelleeJames claims, andif appellant's position is correct he took nothing by the purchase, andhis certificateof saleshould havebeensetaside; also,if A. Ford Cover took but a life estate nothing descended to his heirs, and the motion of appellantto strike their cross-bill from the files should have been sustained. On the other hand, it is insisted on behalf of the appellees that saiddeedconveyedto thegrantees the estateinfee simple as tenants incommon,andtherefore the undividedone-half of the same, upon the death of A. Ford Cover, descended to his heirs, and the interest of Dollie Culley,oneof such heirs, was subject to levy and sale on the judgment of said Clark James. Section 13 of chapter 30 of Hurd's RevisedStatutes of 1903,page441, provides that "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritancebenotadded, shall bedeemed a fee simpleestate of inheritance,if a less estatebenotlimited byexpress words ordonot appearto havebeengranted,conveyedordevisedbyconstructionor operation of law." Here the deed does expressly state that in case of the deathof eitherof thegrantees thesurvivor shall havethewhole of the property, thus clearly limiting the estate granted to both jointly for life, with the right of survivorship. It is insisted, however,bycounselfor appellees that this last provision cannot be given effect becauseitdoes not appear in the granting clause of the deed,or, as is said, does appearinthe habendum, and reliance is placed upon the case of Palmer v. Cook, 159 I11. 300. In that case a deed somewhat similar to the one now before the court was construed as conveying the fee simple titleto the grantees, and it was heldthat the expression, "in case either of the grantees dies without an heir her interest to revert to the survivor," was an attempt to mounta fee upona fee, andwas thereforevoid. Thegranting clauseof that deedwas heldto convey the fee simple titleundertheprovisions of section9 of chapter 30, supra. If a fee simple titlewas infact granted,itis clearthat that estate could not be limited or qualified by the subsequent language. Merely becausethe deed was substantially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and provides that everydeed substantially inthat form shall bedeemed andheldto bea conveyance in fee simple to the grantee, etc.;but it must be construedinconnection with section 13, supra, under which, if a less estatebelimited byexpress words or appearto havebeengranted,conveyedordevisedby construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estateof inheritance,shall notbe deemed to convey a fee simple estate.
He married on 19 Jan 1872, Melissa Huston.
** Melissa died February 24, 1880, she was 25 years old- their baby died February 16, 1880 living only 12 hours. They have death certificates..**
They had four children, three of whom were living;
Mrs. F.M. Culley of McClure, Alexander County,
Mrs. W.W. Stokes
Charles Cover of Anna.
His first wife died in February 1880.
Then he married Josephine Penrod. They had two children,
Ford Cover,14, and Bessie Cover,10. Four other children died young.
He also left two sisters and one brother, Mrs. Isabelle Brown of Murphysboro, Jackson County, and Mary Cover and Michael Cover of
Anna.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
BESSIE COVER v. CLARK JAMES et al. Opinion filed October 24, 1905.
Heard in Illinois Supreme Court 1906-
1. DEEDS—section p of the Conveyance act must be construed in connection with section JJ. Section 9 of the Conveyance act, providing that a deed substantially in the form therein prescribed shall be deemed to convey a fee simple estate, must be construed in connection with section 13 of the same act, under which, if a less estate is limited by express words or appears to have been granted by construction or operation of law, a fee simple estate does not pass. 2. SAME—what is not essential to creation of joint tenancy. It is not essential to the creation of a joint tenancy by deed that the deed use the express words of section 5 of the Conveyance act, declaring the estate to pass "not in tenancy in common but in joint tenancy." 3. SAME—deed construed as passing joint estate for life with remainder to the survivor. A deed to the grantor's two children, conveying and warranting to them certain described premises and providing that in case of the death of either of them "the other to havet the whole property without litigation," passes a joint tenancy for life to the grantees, with remainder in fee simple to the survivor. APPEAL from the Circuit Court of Union county; the Hon. WILLIAM N. BUTLER, Judge, presiding. Appellant ,Bessie Cover, a minor,by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the titlet to the land decreed to be in her. The bill, as amended, averred that Jehu R. Cover, father of appellant, in his life time was the owner in fee of certain lands therein described, and on October 29, 1901, he and his wife,by a warranty deed,conveyed said premises to their children, A. Ford Cover and the appellant, Bessie Cover, the material parts of which deed are as follows: "This indenture witnesseth: That the grantors, Jehu R. Cover and Josie Cover, his wife, of the city of Anna, in the county of Union and State of Illinois, for and in consideration of the sumof $2400 in hand paid, convey and warrant to A. Ford Cover and Bessie Cover, of the city of Anna, county of Union andS State of Illinois, the following described real estate, to-wit, * * * here by releasing and waiving all rights under and by virtue of the homestead exemption laws of this State. In case of the death of either A. Ford Cover or Bessie Cover, the other to have the whole of said property without litigation." The bill further averred that the grantors meant and intended by said deed to make said grantees joint tenants, with the right of survivorship, and that the effect of said deed, in law and equity,was to make said grantees joint tenants and to convey a contingent remainder in them to the survivor; that on June 1, 1902, the grantees went into possession of the premises under said deed, and the said Bessie Cover is now in the actual possession thereof and has paid all taxes due there on; that the said Jehu R. Cover left surviving him, his widow, Josie Cover, and Charles Cover, Jessie Stokes, Dollie Culley, A. Ford Cover and Bessie Cover, his only heirs-at-law; that on July 1, 1904, A. Ford Cover died, leaving as his heirs-at-law Josie Cover, Bessie Cover, Jessie Stokes, Charles Cover and Dollie Culley; that on May 1, 1902, the said Clark James, one of the appellees, obtain a judgment against Dollie Culley, and caused execution to be levied by the sheriff of Union county upon her alleged interest in the said lands, which were sold on October 24, 1904, to Clark James and a certificate of purchase issued therefor; that the said Jennie Stokes, Charles Cover and Dollie Culley claim some interest in said lands as heirs of A. Ford Cover; that the certificate of purchase is a claim upon the title of Bessie Cover in said premises, and the claim of the other heirs tends to depreciate the value of said land. The prayerof the bill is that the certificate of purchase be set aside and declared void as against the said Bessie Cover and as a claim upon her title, and that the same be delivered up and canceled, and that the title of said land be decreed to be in the said Bessie Cover. The appellee Clark James filed his general (dspecialdemurrer ?) to said bill, and the other appellees, Charles Cover, Jessie Stokes and Dollie Culley, filed their cross-bill, alleging that the deed of conveyance to A. Ford Cover and Bessie Cover was not in joint tenancy, but as tenants in common, and that complainants in the cross-bill were the heirs of the said A. Ford Cover, and prayed partition of the premises. The demurrer to the original bill, as amended, was sustained, and appellant electing to stand by her bill the same was dismissed for want of equity. A motion was then made by appellant to strike the cross-bill from the files, which motion was over ruled, and an appeal has been prosecuted to this court.
Mr. JUSTICE WILKIN delivered the opinion of the court: The decision of the case depends upon the proper construction to be placed on the deed from Jehu R. Cover to A. Ford Cover and Bessie Cover. The contention of counsel for the appellant is, that the deed conveyed the property therein mentioned to the grantees as joint tenants for life, with the remainder to the survivor of them, or conveyed a contingent remainder to the survivor,and therefore all right, title and interest in the said A. Ford Cover ceased upon his death. He died before the levy and the sale underwhich theappelleeJames claims, andif appellant's position is correct he took nothing by the purchase, andhis certificateof saleshould havebeensetaside; also,if A. Ford Cover took but a life estate nothing descended to his heirs, and the motion of appellantto strike their cross-bill from the files should have been sustained. On the other hand, it is insisted on behalf of the appellees that saiddeedconveyedto thegrantees the estateinfee simple as tenants incommon,andtherefore the undividedone-half of the same, upon the death of A. Ford Cover, descended to his heirs, and the interest of Dollie Culley,oneof such heirs, was subject to levy and sale on the judgment of said Clark James. Section 13 of chapter 30 of Hurd's RevisedStatutes of 1903,page441, provides that "every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritancebenotadded, shall bedeemed a fee simpleestate of inheritance,if a less estatebenotlimited byexpress words ordonot appearto havebeengranted,conveyedordevisedbyconstructionor operation of law." Here the deed does expressly state that in case of the deathof eitherof thegrantees thesurvivor shall havethewhole of the property, thus clearly limiting the estate granted to both jointly for life, with the right of survivorship. It is insisted, however,bycounselfor appellees that this last provision cannot be given effect becauseitdoes not appear in the granting clause of the deed,or, as is said, does appearinthe habendum, and reliance is placed upon the case of Palmer v. Cook, 159 I11. 300. In that case a deed somewhat similar to the one now before the court was construed as conveying the fee simple titleto the grantees, and it was heldthat the expression, "in case either of the grantees dies without an heir her interest to revert to the survivor," was an attempt to mounta fee upona fee, andwas thereforevoid. Thegranting clauseof that deedwas heldto convey the fee simple titleundertheprovisions of section9 of chapter 30, supra. If a fee simple titlewas infact granted,itis clearthat that estate could not be limited or qualified by the subsequent language. Merely becausethe deed was substantially in the form prescribed by section 9, however, a fee simple title was not necessarily conveyed. That section prescribes the form of the deed, and provides that everydeed substantially inthat form shall bedeemed andheldto bea conveyance in fee simple to the grantee, etc.;but it must be construedinconnection with section 13, supra, under which, if a less estatebelimited byexpress words or appearto havebeengranted,conveyedordevisedby construction or operation of law, the conveyance, not using words heretofore necessary to transfer an estateof inheritance,shall notbe deemed to convey a fee simple estate.
Family Members
Sponsored by Ancestry
Advertisement
Records on Ancestry
Advertisement
