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It is conceded appellants have title of record to the premises. Appellee's claim of title is based upon twenty years' adverse possession. It was conclusively proven that he had been in the actual possession of the premises continuously since some time in 1882. The suit was commenced in 1910. Appellee testified that before he took possession of the premises they were occupied by a man named Cartwright, who lived in a two-room house thereon, and the house had the appearance of having been built several years before. The premises were situated near Cahokia creek and were subject to frequent overflows. Appellee testified he did Cartwright some favors, the nature of which he could not remember, except that he loaned him some money and gave him chickens; that Cartwright became disgusted with the place on account of high waters and let appellee have it in consideration of the favors he had done him. Appellee moved into the house and resided therein until the house. was destroyed, in 1896. The fence Cartwright had built enclosing the premises had washed away at the time he turned their possession over to appellee and appellee refenced them. By the fence he then built he took in about an acre more than Cartwright had fenced, but in the spring of 1883 he moved the fence back to the place it had originally occupied. Appellee has maintained his fences around. the premises as located in 1883 down to the present time and has occupied the premises as his home. In addition to the dwelling house he has placed and maintained on the premises a hog house and chicken house. In 1896 a cyclone destroyed his house and fences. He re-built the fences and built a three-room frame dwelling, in which he has resided since its completion. While re-building the improvements he lived on the premises in a tent.
Appellants contend that the possession of appellee was not hostile in its inception and that his possession was not adverse to the owners of the record title. There is no proof of any declaration made by appellee at the time he
took possession of the premises that he did so by virtue of any claim of right, but all the circumstances proven clearly justify the conclusion that he entered upon the premises by virtue of an agreement with Cartwright, and such entry was hostile to the owners of the record title. If his subsequent possession continued to be adverse to appellants then the bar of the statute was complete.
It appears from the testimony that at the time appellee took possession of the premises they were not very desirable on account of their being subject to frequent overflows from the waters of Cahokia creek. Appellee testified that no one else but Cartwright claimed them, and when he left appellee entered and has ever since remained in possession claiming to own them, and the proof shows he has used and controlled them in the same manner as would an owner. The nature of one's possession may be as well characterized by his acts as by oral declarations. "It is not essential, however, that there should be proof that the party in possession made oral declarations of claim of title, but it is sufficient if the proof shows that he has so acted as to clearly indicate that he did claim title. No mere words could more satisfactorily assert a claim of title than a continued exercise of acts of ownership over the property for a period of more than twenty years. Using and controlling property as cwner is the ordinary mode of asserting a claim of title, and it is, indeed, the only proof of which a claim of title to a very large proportion of property is susceptible." Illinois Central Railroad Co. v. Houghton, 126 Ill. 233. See, also, James v. Indianapolis and St. Louis Railroad Co. 91 Ill. 554, and Shaw v. Smithes, 167 id. 269.
Appellants contend that they proved appellee's possession was not adverse for twenty years. This claim is based upon the testimony of the lawyer who brought the suit for appellants and who withdrew from the case before the trial and testified as a witness. He testified that while he was preparing to begin the suit he had a talk with appellee
for the purpose of ascertaining whether it would be necessary to bring an ejectment suit against him, and that appellee said he did not claim to own the property until after he had been there twenty years. A real estate agent in East St. Louis who was the agent of appellants in the collection of the rent and payment of taxes upon appellants' property of which that in dispute forms a part, testified he was present at the conversation between the lawyer and appellee, and that appellee said he never claimed to own the property until after twenty years had elapsed. This was denied by appellee. If the testimony was competent it presented a question of fact to be determined by the court upon the greater weight of the evidence. A reviewing court will not reverse a finding of a trial court upon questions of disputed fact unless the finding is clearly contrary to the weight of the evidence. (Noyes v. Heffernan, 153 Ill. 339.) But the testimony of appellants' witnesses was of declarations made twenty-eight years after appellee entered into possession of the premises. The twenty years' period had been completed long before it is claimed he made any such declaration, and it would therefore not be sufficient to divest him of his title. This question was before this court in Carroll v. Rabberman, 240 Ill. 450. In that case the declarations of the party in possession were made before the expiration of twenty years of adverse possession and were held to be competent, but the court said if the statute had run in favor of the party in possession before the declarations were made, his title thus acquired could not be divested by such declarations. The same rule is announced in Illinois Central Railroad Co. v. Wakefield, 173 Ill. 564.
In our opinion appellee's proof complied with all the requirements necessary to establish title by twenty years' adverse possession, and we find nothing in the record that would justify a reversal of the judgment. It is therefore affirmed. Judgment affirmed.
THE COUNTY OF FRANKLIN, Appellant, vs. WILLIAM B. BLAKE et al. Appellees.
Opinion filed February 20, 1913.
APPEALS AND ERRORS-order sustaining demurrer is not a final order. An order sustaining a demurrer to an information but containing no words equivalent to a judgment that the petitioner take nothing by the writ or that the defendants go hence without day is not a final order and no appeal lies therefrom, as the statute limits the right of appeal to final judgments, only.
APPEAL from the Circuit Court of Franklin county; the Hon. JACOB R. CREIGHTON, Judge, presiding.
G. A. HICKMAN, State's Attorney, (SPILLER & MILLER, of counsel,) for appellant.
MOSES PULVERMAN, and HART & WILLIAMS, for appellees.
Mr. JUSTICE COOKE delivered the opinion of the court: The State's attorney filed an information in behalf of the county in the circuit court of Franklin county, in which he claimed that certain lands therein described had escheated to the county. The court sustained a demurrer to the information, but neither adjudged that the county. take nothing by the writ nor that the defendants go hence without day, and the order of the court contained no words of equivalent meaning. The recital in the record is as follows: "The court having heretofore heard the argument of counsel and being fully advised in the premises, the defendants' demurrer to the petition of plaintiff filed herein is by the court sustained; to the sustaining of which demurrer the petitioner then and there excepts and elects to stand by its petition. And now, to-wit, on the same day, comes the petitioner, by its said attorneys, and prays an appeal to the Supreme Court," etc. From this
order the State's attorney, on behalf of Franklin county, has perfected this appeal.
There was no disposition of the rights of the parties or of the suit. An order sustaining a demurrer is not a final judgment, and as the statute only authorizes appeals from final judgments this court has no jurisdiction of the cause and should dismiss the appeal of its own motion. Chicago Portrait Co. v. Crayon Co. 217 Ill. 200.
The appeal is dismissed.
JOSEPH VIAL, Plaintiff in Error, vs. THE NORWICH UNION FIRE INSURANCE SOCIETY, Defendant in Error.
Opinion filed February 20, 1913.
I. INSURANCE-re-insurance defined.
Re-insurance is the con
tract which one insurer makes with another to indemnify the first insurer against a risk it has already assumed, and where the contract is for re-insurance, only, it operates solely between the insurer and the re-insurer and creates no privity of contract whatever between the re-insurer and the persons insured.
2. SAME a policyholder cannot sue the re-insurer if the latter's contract is strictly for re-insurance. A policyholder in a company which has re-insured its risks with another company cannot maintain an action against the re-insuring company unless the contract between the two companies goes farther than mere re-insurance and the insuring company has thereby assumed the liabilities of the re-insured company and has agreed to pay them.
3. SAME contract construed as being strictly one of re-insurance. A contract whereby one insurance company agrees with another company "to re-insure from 12 o'clock M., standard time, on above date, at the place where the property insured is located, all unexpired fire and lightning risks located in the United States, for the amounts not heretofore re-insured, now covered by policies and contracts issued by the Indemnity, according to their terms and conditions and to pay all losses thereon occurring after the last mentioned hour, and to pay all adjusting and other expenses arising from such risks and all return premiums upon the cancellation of policies enumerated in the schedules," is strictly a contract of re-insurance.