text:
    John W. Thrifts v. Andrew J. Fritz.

      Filed at Mt. Vernon January 18, 1882.

      1. Appeaii—what matters embraced therein. On appeal by an alleged purchaser of mortgaged premises at a master’s" sale, who was also a party complainant to the bill to foreclose, he holding the senior mortgage, from a decree requiring him to pay the difference between the amount bid by him and the amount realized on a resale, the original record in the proceedings to foreclose can not be considered by this court as evidence of any facts, unless offered in evidence in the proceeding against the purchaser, and preserved in the record of that case by bill of exceptions or certificate of the judge. In such case the motion or petition to enforce the liability of the purchaser is a separate and independent proceeding.
    2. Judicial sale—proceeding against 'purchaser for not completing his bid. A proceeding against a purchaser of land at a master’s sale to subject him to the payment of the difference between his alleged bid and what the premises sold for at a resale on his neglect to pay the amount of his bid, is essentially a new proceeding from the one in which the sale was ordered, and whether it is against a party to the original suit or a stranger making the alleged bid, he must have notice, unless he voluntarily submits to the jurisdiction of the court, by answer or otherwise. It is a summary proceeding, and it seems it may be either by petition or motion.
    3. Same—steps necessary to charge purchaser for a loss in consequence of not completing pwrchase. It is essential, in order to charge a purchaser at a judicial sale with the difference between his alleged bid and the amount realized on a second sale, that the master should report the sale to him, and that he refuse to comply with his bid; and if, upon notice, he shows no cause against it, he should be ordered to complete his purchase within a certain time fixed by the court, and in default thereof the property should be resold at his risk and expense.
    4. Evidence—master’s report. In a proceeding to charge a purchaser of land sold under a decree of foreclosure with the difference between his bid and the sum bid on a resale, the master’s report will be prima facie evidence, under the statute, of what it is by law required to contain. But such reports must be introduced in evidence, and preserved in the record in the usual mode, to authorize a monetary decree against the alleged purchaser.
    5. Chancery practice—former adjudication—how presented as to defence set up in answer. If the matters set up in an answer as a defence have been previously adjudicated, it should be set up by plea or replication, upon which issue can be taken, so as to give the defendant an opportunity to present any evidence he may have on the subject. It can not be taken by exception to the answer.
    6. Amendment—of process after judgment or decree. No amendment is allowable to the service of process at a subsequent term of court to the one at which the decree or judgment was rendered, as a matter of course, without notice to the parties alleged to have been regularly served, or whose rights will be directly affected thereby. And this rule applies, though they are not parties to the suit being tried when the amendment is sought to be made.
    Appeal' from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court.of Pope county; the Hon. Daniel M. Browning, Judge, presiding.
    Messrs. Green & Gilbert, and Mr. J. C. Courtney, for the appellant:
    The amendment of the appointment in writing of the special deputy, without notice to the defendants in the foreclosure suit, after the term at which the final decree was entered, was error. Planing Mill Co. v. National Bank, 86 Ill. 590; O’Connor v. Wilson, 57 id. 226; Cook v. Wood, 24 id. 295 ; Walahan v. People, 40 id. 103; Bryant v. Vix, 83 id. 11; Lill v. Stockley, 72 id. 495; Chicago Mill Co. v. National Bank, 96 id. 587; Chicago Planing Mill Co. v. Merchants’ National Bank, 97 id. 244.

      A deputy sheriff, or other deputy, has no power to appoint a deputy. Bouvier’s Law Die. vol. 1, p. 409; Jacob’s Law Die. under title “D,” ed. of 1739; "Viner’s Abridg. title “Deputy;” Bacon’s Abridg. title “Sheriff,” p. 155; Bev. Stat. 1874, chap. 125, sec. 10; Illinois Land and Loan Co. v. McCormack, 61 Ill. 332.
    A purchaser at a judicial sale will not be compelled to complete the sale if the title be defective. Borer on Judicial Sales, p. 66, sec. 155; second ed. p. 70, sec. 150; Freeman on Executions, 503, sec. 302; Williamson v. Field, 2 Sandf. Ch. 533; McGowan v. Wilkins, 1 Paige, 120; Jackson v. Edwards, 22 Wend. 498; Morris v. Mowalt, 2 Paige, 580; Matter of Cavanaugh, 37 Barb. 22; Conner v. Smith, 10 Watts, 392; Boggs v. Hargrove, 16 Cal. 559.
    It is only a final decree that is res judicata, and it must be specially pleaded, and proven. The only issue appellant was allowed to make was upon his averment that the special deputy, Weaver, was not appointed by the sheriff. He had no opportunity of giving evidence as to the other matters of defence, and there was no finding on this particular issue.
    The sale to McCoy was a master’s sale, made under a decree of court, and the law is well settled that such sales are never complete until the master makes a report of the sale, and the sale is confirmed by the court. Until then the transaction is a mere contract of sale, binding upon no one, and depending upon the approval of the court for its validity. Garrett v. Moss et al. 20 Ill. 594; Dill v. Jasper, 33 id. 262; Borer on Judicial Sales, pp. 1, 2.
    Mr. W. P. Sloan, and Mr. B. A. D. Wilbanks, for the appellee,
    referred to the opinion of Mr. Justice Baker, in Thrifts v. Fritz, 7 Bradw. 55, as presenting fully and logically the facts of the case.
    A deputy is by statute authorized to perform any and all the duties of the sheriff, and his act is made that of the sheriff. . Bev. Stat. 1874, chap. 125, sec. 12.

      It frequently happens that the sheriff is sick or absent, leaving a deputy, and it becomes important in some urgent case to have a special deputy appointed. Admitting that the amendment was made without notice to the defendants in the foreclosure suit, the question arises, was notice essential to the validity of the appointment ? If not, we insist no notice was necessary, and the jurisdiction of the court, as to the persons of defendants, was complete.
   Mr. Justice Scott

delivered the opinion of the Court:

Much confusion exists in this record on account of the introduction of irrelevant matter in no way connected with the present appeal. It is to be regretted the abstracts- are not so prepared as readily to present a clear understanding of the case. It will simplify the investigation to ascertain what the litigation in this court concerns.

On looking into the transcript filed in the cause,- it is seen an appeal was taken by John W. Thrifts from a judgment rendered against him in the circuit court of Pope county, on the 22d day of October, 1879, in favor of Andrew J. Fritz, for the sum of $151.20 and costs of suit, and in case of default in payment of-the sum adjudged against him, within a time fixed by the order of. the court, it was ordered that execution issue therefor. That judgment was affirmed by the Appellate Court for the Fourth District, and now defendant brings the case to this court, a majority of the judges of the Appellate Court having certified they were of opinion the case involves questions of law of such importance, on account of the legal principles involved, that it should be passed upon by the Supreme Court,—which, under the statute, authorizes him to bring his appeal to this court.

That which is called a “bill of exceptions, ” made part of the record, by the judge of the circuit court in which the cause was tried, contains all the evidence that can be considered on this appeal. It contains the petition of Andrew J. Fritz, in which it is recited a petition was filed in the case of Andrew J. Fritz v. Cassandra Jenkins et al., in which it was set forth that said cause was pending on a hill to foreclose a mortgage, in the circuit court of Pope county, at the March term, 1878, when John W. Thrifts, a junior mortgagee, was, on his own petition, made a party; that a decree was rendered in favor of petitioner, Andrew J„ Fritz, for the sum of $138.08, and also in favor of defendant, John W. Thrifts, the junior mortgagee, for the sum of $65, and the mortgaged premises ordered to be sold, the proceeds to be applied to the payment of the costs of the proceedings, and to the payment of the claims of the respective mortgagees. It is further set forth in the petition, that the master in chancery, after giving the notice required by the decree, offered the mortgaged property for sale; that the same was struck off to defendant for $253.60, as to the highest bidder, and, although a certificate of purchase, in the usual form, was tendered to him, he refused to accept it and pay the amount of his bid. It is further represented, in and by the same petition, that at the March term, 1879, of the court, an order was entered requiring defendant, Thrifts, to pay the purchase money alleged to have been bid by him for the mortgaged property, within thirty days, and that in default thereof such real estate be resold by the master in chancery, at the risk and expense of defendant; and that, as defendant had not paid such purchase money, the master in chancery, after advertising the property, resold the same to Alonzo McCoy for $5, that being the highest bid made, and issued to him the usual certificate of purchase. Upon the facts alleged, petitioner asked that defendant, Thrifts, be required, by an order of court, to pay the difference between his alleged bid of $253.60 and the subsequent bid of $5, viz.: $248.60, together1 with the costs consequent upon this proceeding, as well as the costs of the proceeding against defendant at the March term, 1879, within a reasonable time, and in default thereof, that execution issue to the sheriff of Massac county to collect the same. To the petition and motion filed against him, defendant answered, that while the petition contained many facts that were true, and some that were untrue, yet upon the material matters which would fix liability on defendant the facts alleged are very inaccurate and greatly misrepresented, and then proceeds to relate what he alleges is a full history of his connection with the case. The substance of all that is material to the present consideration is : 1st. Defendant did not make any bid for the mortgaged premises at the master’s sale. 2d. The premises were not bought by him. 3d. No certificate of purchase was ever tendered to him. 4th. He did not authorize any one to make a bid for him at the master’s sale of the premises, and was greatly, surprised when he heard the premises had been struck off at such sale in his name. 5th. That Thomas H. Clark, who made the alleged bid for defendant at the master’s sale, was the acting solicitor for petitioner in the foreclosure suit. And 6th. The only notice defendant received of the resale of the property, was a notice from the master, on the 28th day of June, 1879, when in fact the resale did not take [place until the 19th day of July, 1879. Exceptions to the answer of defendant, filed by petitioner, are: 1st. The matters set up are not responsive to the motion. 2d. The material allegations of defendant’s answer were at issue, and adjudicated by the court, at its last term. And 3d. The answer is otherwise informal and insufficient. . It appears the court “sustain the exceptions” to the answer of defendant, and thereupon leave was given to defendant to file another answer, which he did, the substance of which is, the only service of process in the foreclosure suit on defendants, a part of whom ■ are minors, was by a person not authorized by the sheriff of the county to make service of such processthat the party making the service was appointed a special deputy for the sheriff of the county by an acting deputy, and not by the sheriff himself, and it is insisted the court never acquired jurisdiction of the persons of the defendants in the foreclosure suit, there having been no appearance by any adult defendant, and for that reason the decree of foreclosure, and the sale thereunder, were null and void. With his amended answer defendant filed the affidavit of the sheriff, in which he states the written appointment of a special deputy, on the back of the summons in the foreclosure suit, purporting to have been made by him, was not made by him, and was not signed by him. Exceptions filed by petitioner to the additional or amended answer of defendant, were by the court overruled, and thereupon he filed a general replication to the answer of defendant, such as is usual to an answer to a bill in chancery, stating that the matters therein set up are not true, and the allegations of the petition and motion are true, and for aught that appears in such answer the prayer of the petition and motion should be granted. Just before the hearing of the cause was commenced in the circuit court, and after a motion for continuance by defendant had been overruled, petitioner asked leave of the court to amend the appointment of the special deputy indorsed on the back of the summons, in the suit to foreclose the mortgage of petitioner, by adding below the name of the sheriff, which appears to be signed thereto, the words, “by Thomas H. Alexander, deputy, ” which motion, against the objection of defendant, was allowed, and the appointment of the special deputy was so amended. And thereupon the cause came on ' to be tried, when Thomas H. Alexander was introduced as a witness, and stated he was a deputy sheriff on the 20th day of October, 1877, when the summons in the foreclosure suit was given to him, and he appointed the deputy named, to serve the summons, and signed the sheriff’s name to the appointment, and that the sheriff had told him if he became pressed with business to appoint a special deputy in any case, but gave him no particular authority in this case. The judge who heard the cause on the circuit, certified “the foregoing was all the evidence introduced' on the trial of this cause. ” Upon that evidence the court found the principal allegations of the petition were true, and rendered a judgment or decree against defendant, in the sum of $151.20, to be paid within sixty days, and in default of payment execution to issue therefor to the sheriff of Massac county.

It is obvious, the appeal in this case only brings up the record of the judgment or decree rendered against him, as has been seen, on ¿the 22d day of October, 1879. The transcript of the original suit to foreclose petitioner’s mortgage, and of all previous proceedings filed in this, cause, constitute no part of the record of the case from which the appeal was taken, and can not be considered. Of what was previously decreed by the court, whether in favor of or against defendant, he does not now complain, and has assigned no errors calling in question any of such proceedings. The transcript of such proceedings finds no appropriate place with the record in this cause. Smith v. Brittenham, 88 Ill. 291; Smith v. Brittenham, 94 id: 624.

It is sought to subject defendant to the payment of the difference between his alleged bid for premises being sold under a decree of foreclosure in Fritz v. Jenkins et al., and what the mortgaged premises sold for at a second sale made by the master in chancery. This is, essentially, a new proceeding, and whether it is against a party to the original suit, or a stranger, making the alleged bid, he must have notice, unless he voluntarily submits to the jurisdiction of the court, by answer or otherwise. It is a summary proceeding, and it is said it may be either by petition or motion. By petition is'the mode adopted in this case. It is essential, to charge the alleged purchaser with the difference between his alleged bid and the amount realized on a second sale, the master should report the sale to him, and his refusal to comply with his bid, and if upon notice he shows no cause against it, he should he ordered to complete his purchase by a certain time fixed by the court, and in default thereof the property will be resold at his risk and expense. Hilly. Hill, 58 Ill. 239.

It may be the petition sets forth with sufficient certainty every material fact necessary to entitle him to a decree against defendant for the difference between the first bid and the amount of the second bid, and it seems the circuit court found, by its decree, the allegations of the petition in that regard were true, as stated; but the difficulty in the case is, the evidence preserved in the record does not warrant the findings of the court. The record contains a “bill of exceptions, ” which it is certified contains all the evidence introduced on the trial of the cause. It will be observed it contains no evidence defendant, or any one for him, ever bid off the mortgaged premises at any sum, and refused to complete his purchase. Had the master’s report been introduced in evidence, under the statute it would have been evidence of what it is required by law to contain. But that was not done, nor is there any evidence of resale, upon notice to the party to be charged with the deficit, to be found in the record. Here, again, the' master’s report, had it been introduced, would have been evidence, prima facie at least, of these essential facts. It may be true, and doubtless is, the transcript, filed .with this record contains what purports to be reports of the master in chancery as to his acts and doings under the decree of the court in the foreclosure suit, but this court can not search them out, and if found can not' take judicial notice they are official papers. They should have been introduced in evidence, and made a part of the record in the usual mode known to the practice, by bill of exceptions or certificate of evidence, before they can be used as evidence against defendant. Notwithstanding this is a summary proceeding against defendant, a case must be proved before a monetary decree can rightfully be pronounced against him, as in other cases in law or equity.

This view sufficiently disposes of the case so far as the present judgment is concerned; but a few questions that will necessarily arise on another hearing, and which are directly presented by the rulings of the circuit court, remain to be considered. One exception taken to defendant’s answer is, the material matters contained therein were at issue, and were adjudicated by the court at a former term. The objection taken should have been presented by plea or replication, upon .which issue could have been taken. Whether the matters alleged in defendant’s answer as a defence to the petition were at issue, and had been adjudicated by the court at a former term, is a matter of evidence concerning which defendant had a right to be heard. It was not proper practice to sustain an exception to the answer, for the reason stated.

The point made, the court erroneously permitted an amendment of the service of summons in the suit of petitioner to foreclose his mortgage, without notice to the defendants in that suit, needs only a few words of illustration. The practice in such cases has become settled by the previous decisions of this court. No amendment is allowable to the service of process at a subsequent term of court to the one when the decree or judgment was pronounced, as a matter of course, without notice to the parties alleged to have been regularly served, or whose rights would be directly affected. O’Conner v. Wilson, 57 Ill. 226; Planing Mill Co. v. National Bank, 86 id. 587. The rights of defendants in the original suit, out of which this litigation arises, would be directly affected, and it was plainly error in the court to permit any amendment of the return of service of process as to them, without notice in reasonable time to enable them to make a suitable' defence, if any they had. Whether the service of process on them was sufficient in the first instance to give the court jurisdiction in the foreclosure suit, is a question the determination of which does not come within the present discussion, and as to which no opinion will be expressed.

The judgment of the Appellate Court will be reversed, and the cause remanded to that court with directions to reverse the decree or judgment of the circuit court, and remand the cause for further proceedings.

Judgment reversed.

Mr. Justice Mulkey took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    William Rhode et al. v. Mattie McLean.

      Filed at Mt. Vernon January 18, 1882.

    1. Secondaby evidence—as to contents of lost instrument—of the diligence required. While it may be true that every one into whose hands a writing has been traced should be produced before admitting secondary evidence of its contents, yet where the evidence shows the instrument to have been destroyed, no further proof is required in order to admit such evidence.
    2. Same—sufficiency of proof of a copy. On the question of the admissibility of a copy of an appeal bond in evidence, in a case where the principal had obtained and destroyed the original, the clerk of the court testified that he looked at the bond when handed him, and saw it was in the sum required by the order of the court, and that it was signed by the defendants, before he approved the same; that he could not swear whether the copy shown him was a copy or not; that he did not read the original bond through; that he only read far enough to see that it was an appeal bond in the case, and that the amount conformed to the order of the court, and who the sureties were, and that they were good; that his recollection was that the bond handed him by the defendant was on a printed blank; that the copy shown him was on a blank such as he generally used in the office; and that the defendant got a blank from him to fill up, in the case in which the appeal was taken: Held, that the proof was sufficient that the copy exhibited was in substance a copy of the appeal bond.
    3. Evidence—admission of principal evidence against his surety. The admission of the principal in an appeal bond that the bond was destroyed, he having taken it from the clerk’s office and never hating returned it; is evidence of the fact of its destruction, not only as against himself, but against his co-obligors as well.
    4. Surety—signing on condition unknown to obligee. The fact that,a party signing an appeal bond as a surety, signed the same and left the bond in the hands of the principal upon condition others were also to execute the same before it should be delivered, and that it was used contrary to such condition, is no defence to the surety in a suit upon the bond, where the obligee is not chargeable with notice of the condition on which it was executed.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Richland county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Bell & Green, and Mr. J. P. Robinson, for the plaintiffs in error:
    The bond was shown to have gone into the hands of Henry Blatter, and he should have been called to account for it, before the admission of secondary evidence. 1 Greenleaf on Evidence, sec. 558; Parkins v. Cobbett, 11 Eng. C. L. 394; Chapin v. Taft, 18 Pick. 379.
    And what Blatter said to Morehouse about the bond being destroyed, was no evidence against the other defendants. Blatter was a competent witness for the plaintiff, and could have been compelled to produce the bond on the trial. Rev. Stat. chap. 51, secs. 6, 9.
    Where a written instrument is traced to the hands of a particular person, that person must be called and sworn to give an account of it. The King v. The Inhabitants, etc. 6 T. R. 236; Jackson v. Hasbrouck, 12 Johns. 192; Woods v. Garrett, 11 N. H. 442; Poignand v. Smith, 8 Pick. 278; The Governor v. Barkley, 4 Hawks, 20. See, also, as to the diligence required, Mariner v. Saunders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626; Cook v. Hunt, 24 id. 535; Williams v. Case, 79 id. 356 ; Wing v. Sherrer, 77 id. 200; Railway Company v. Ingersoll, 65 id. 399.

      The substance of a lost paper ought to be proven satisfactorily, and its contents should have been known to the witness, and understood by him, so as not to leave any doubt as to its material parts; and when the proof is made out by parol, the witness should have seen and read the paper, and be able to speak pointedly and clearly as to the tenor and contents. Rigg v. Taylor, 1 Pet. 591; United States v. Britton, 3 Mason, 464; Rankin v. Crow, 19 Ill. 626.
    The law is well settled, that where a surety signs a- note or obligation of any kind, on the express condition that it is to be signed by another person, as a co-surety, before it is delivered, and it is delivered without being so signed, the payee, or obligee, being chargeable with notice of such condition, such facts constitute a good defence to any action brought upon such instrument against the surety. Stricklin v. Cunningham, 58 Ill. 293; Allen v. Mamey, 65 Ind. 398.
    Mr. J. M. Longeneckeb, and Messrs. Wilson & Hutchinson, for the defendant in error:
    As to the last point made, that the plaintiffs in error never consented to the delivery of the bond until it was signed by other obligors, the law is settled against the plaintiffs in error. Smith v. Peoria Co. 59 Ill. 412; Comstock et al. v. Gage, 91 id. 335.
    The objection that the statement of Blatter that the bond was destroyed does not bind his co-defendants, is not sustained by authority. 1 Greenleaf on Evidence, pp. 252, 253 ; Wharton on Evidence, secs. 1091—2, sec. 143.
    “If a document is conceded by the party in whose hands it was last heard from, to have been lost or destroyed, then notice to him to produce it is unnecessary. He is estopped from setting up such possession of the paper as would make a notice to produce of use.” Wharton on Evidence, sec. 161.
    The loss is proved by the clerk’s certificate or oath, where the statute requires it to be filed. Abbott on Trial Evidence, sec. 14, p. 510.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action upon an appeal bond, given upon an appeal from a judgment of the circuit court of Richland county to the Appellate Court, brought against the sureties, wherein the plaintiff recovered, and the defendants bring the case here upon writ of error.

The questions made upon the record are the three following : First, that there was no sufficient foundation laid for the reception of secondary evidence, which was admitted, of the contents of the bond sued on; second, that the copy of the bond read in evidence was not shown to be a true copy of the original bond; and third, that the court below wrongly excluded the evidence offered by the defendants, that they signed the bond on condition that it was not to be used unless signed by other parties, who did not sign it, and that it was used contrary to such condition.

The appeal to the Appellate Court, upon which the appeal bond was given, was taken by Henry Blatter, who was the principal obligor in the bond. Mr. Knoph, the then clerk of the circuit court of Richland county, testified, that within the time limited for giving the appeal bond Blatter handed to him, in his office, an appeal bond, signed by Blatter and the defendants, and he approved the bond and filed it; that the next morning Blatter came into the office and asked witness for the bond, saying he would return it in a little while; that witness gave him the bond, and he took it away, and witness had not seen it since.

Mr. Morehouse, the deputy clerk, testified, that at the request of Mr. Knoph he went to Blatter and asked him for the appeal bond; that Blatter did not give it to him, but promised to return it in a few days; that he never did return it to the clerk’s office, where he got it; that witness after-wards, at the request of Mr. Tippit, the succeeding circuit clerk, went to Blatter and demanded the bond, and the latter said he did not have the bond, and that it was destroyed. Mr. Tippit, the present circuit clerk, testified that in addition to sending his deputy clerk, Mr. Morehouse, for the bond, he himself demanded the bond of Blatter, and the latter said he did not know anything about it. There was proof that after diligent search in the clerk’s office the bond could not be found there.

The objection is taken, that as the bond was traced to the hands of Blatter, he should have been produced as a witness to account for it, referring to Mariner v. Saunders, 5 Gilm. 113, Rankin v. Crow, 19 Ill. 626, Cook v. Hunt, 24 id. 535, among other authorities, as so holding. Such may be the general rule where the destruction of the instrument has not been shown, but where the evidence shows the instrument • „ 0 to have been destroyed, no further proof is required in order to admit secondary evidence of its contents. Blatter’s (the principal obligor’s) admission that the bond was destroyed, was, we think, evidence of the fact, not only as against himself but against his co-obligors as well. Mr. Greenleaf lays down the rule: “In the absence of fraud, if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one, is, in general, evidence against all. They stand to each other, in this respect, in a relation similar to that of existing co-partners. * * * And where two were bound in a single bill, the admission of one was held good against both defendants. ” 1 Greenleaf on Evidence,' sec. 174.

As to the admission in evidence of the copy, the clerk testified, as the order of court itself in evidence showed, that the appeal was granted on Blatter’s giving bond in the sum of $3000, to be approved by the clerk of the court, and filed within thirty, days; that he looked at the bond when handed to him by Blatter, saw it was in the sum of $3000, and that it was signed by Blatter and the defendants; that he could not swear whether the copy in question shown him was a copy or not; that he did not read the bond handed him by Blatter, through; that he only read far enough to see that it was an appeal bond in that ease, that the amount conformed to the order of the court, and who the sureties were, and that they were good; that his recollection was that the bond handed to him by Blatter was on a printed blank; that the copy shown him was on a blank such as he generally used in his office, and that Blatter got a blank bond from.him to fill up in the case. The proof was sufficient that the copy exhibited in evidence was in substance a copy of the appeal bond, especially in view of the liberal presumption in favor of the proof which the law would indulge in such a case, in odiwm spoliatoris.

It is not pretended, and could not be claimed under the o decisions of this court, that the facts offered to be shown by the rejected testimony would form any defence, unless the obligee in the bond was chargeable with notice of the condition upon which the sureties signed it. It is sought by the defendants to raise the question that the obligee is chargeable with such notice, from the fact that in the copy of the bond read in evidence by the plaintiff, as it appears by the bill of exceptions, the name of a party who did not sign the bond, to-wit, Ferdinand Schmadel, is inserted in the bond with the names of the parties who did sign it; that this was a suspicious circumstance appearing on the face of the bond, indicating that it should have been signed by other parties before being filed in the clerk’s office, and that this should have put the obligee or clerk on inquiry, which would have led to a knowledge of the condition offered to be proved by the defendants; - that whatever is sufficient to put a reason-, able man on inquiry, amounts to notice, and referring to Allen v. Marney, 65 Ind. 398, as sustaining the proposition, and citing the authorities which do so.

We do not think the evidence shows that the bond did contain the name of Ferdinand Schmadel, and hence there is no basis of fact for raising the question of notice of the condition which defendants would make. The so-called copy read in evidence, and which contains in the body the name of Ferdinand Schmadel, was the copy attached to the declaration as a copy of the bond sued on. The suit, as appears, was brought under the misapprehension that Schmadel was one of the signers to the bond, as it was brought and the declaration filed against him as a party, together with the present defendants, hence his name appearing in the copy of the bond attached to the declaration. In the progress of the cause, and before the time of trial, on motion of the plaintiff the suit was dismissed as to Ferdinand Schmadel, and leave was given by the court to plaintiff to amend the declaration, and the copy of the bond filed with the declaration, by striking out the name of Ferdinand Schmadel. As that name does not now appear as signed to the copy of the bond contained in the bill of exceptions, plaintiff, evidently, in pursuance of the leave of the court, amended the copy filed with the declaration by striking out the name of Schmadel as a signer to the bond, and omitted, through inadvertence, no doubt, to strike out that name also in the body of the copy. There was no evidence that the copy was a true copy of the bond, and, under all the circumstances, Schmadel’s name appearing, as it now does, in the body of the copy of the bond shown in the hill of exceptions, is of no significance as showing that that name appeared in the body of the appeal bond itself.

Finding no error in the respects claimed, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    Henry Plummer v. Robert F. White.

      Filed at Mt. Vernon January 18, 1882.

    1. Former adjudication—as to homestead right. Where in a suit in which the heirs and devisees of a deceased owner of land, occupied by him as a homestead, are parties, the premises are set off to the widow of the deceased as her homestead, this is an adjudication that up to that time she had not lost her homestead by abandonment.
    2.. Homestead—not abandoned by a sale. The alienation of the homestead by a widow after it has been set off to her, does not constitute an abandonment of it, but her grantee may hold the same against the heir.
    Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. M. Scheffer, for the appellant.
    Mr. Henry C. Goodnow, for the appellee,
    on the question of abandonment of the homestead, cited Walters v. The People, 21 Ill. 178; Vanzant v. Vanzant, 23 id. 536; Cipperly v. Rhodes, 53 id. 346; Potts et al. v. Davenport et al. 79 id. 455; Stevens v. Hollingsworth, 74 id. 202.
   Mr. Justice Dickey

delivered the opinion of the Court:

This ease was before this court at the May term, 1880, and an opinion was delivered in .October, 1880. The leading facts of the case, as presented here now, do not differ essentially from those heretofore considered. For their statement we refer to the report of the case. White v. Plummer, 96 Ills. 394.

By the agreed statement, this land was set off to the widow, as her homestead, at the February term, 1879, and in August, 1879, she conveyed the same to White, the appellee. If, upon a hearing, at the February term,' 1879, in a proceeding wherein the heirs and devisees of her husband were parties, this land was set apart as her homestead, that of itself was a necessary adjudication that up to that time she had not lost her homestead right by abandonment. The case now presented contains no evidence tending to prove an abandonment, on her part, of the premises, after the decree, and before her conveyance to White.

Adhering to the view heretofore expressed, that alienation does not constitute abandonment, we find no ground for reversing the present judgment, and the same is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    The City of Cairo v. Fredoline Bross.

      Filed at Mt. Vernon January 18, 1882.

    1. Municipal corporations—power to require the taking out of license for certain occupations and kinds of business— construction of the general Incorporation act. Where the legislature, by the general Incorporation act, declares that the corporate authorities of cities and villages organized and acting under its provisions shall have power to license certain occupations and kinds of business, specifically enumerating them, such declaration, by a familiar rule of construction, must be construed precisely as if the law, in express terms, inhibited the licensing of all trades and occupations not contained in the enumeration.
    2. Same—uniformity of organization is the purpose of the general law. The object of the general Incorporation law is to place all cities, towns and villages organized under it, and of the same grade, upon a uniform and common footing with respéct to their corporate powers and the manner of exercising them.
    3. Same—reorganization under general law—effect upon prior powers and ordinances under special charters. It was not intended that a change of organization by a city, from its special charter to the general Incorporation law, should at all affect its corporate existence or liabilities, nor that its existing powers or government should be changed or otherwise affected, except so far as the provisions of the general law differed from those of the old charters. So far as their provisions are substantially the same, or not inconsistent with each other, they, together with all ordinances based thereon, are to be continued in force.
    4. But after such reorganization by a city or village, any laws in its special charter, or otherwise, in conflict with the general law, no longer apply to It under its new organization.
    5. The provision in the general Incorporation law of cities and villages, that “all ordinances, resolutions and by-laws in force in any city or town where it shall organize under this act, shall continue in full"force and effect until repealed or amended, notwithstanding such change of organization, ” was intended to continue in force only such ordinances, etc., adopted under a special charter, which might lawfully be passed under the general law.
    6. Same—as to power to require merchants to take out license. Under the general Incorporation law, a city organized under its • provisions has no power to require merchants to take out a license, and an ordinance so requiring a license, adopted under its special charter before its reorganization under the general law, will cease to have any binding force.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the plaintiff in error:
    The special charter of the city of Cairo, in force at the date of the reorganization under the general Incorporation law, gave the city express power to license, tax and regulate merchants. While it is true the general law grants no such express power, it is equally true that it is silent, and does not in any manner prohibit the exercise of such power. On the contrary, the general act (art. 5, sec. 1, item 4,) expressly gives the council power “to fix the amount, terms and manner of issuing and revoking licenses, ” generally.
    The power to license merchants is not inconsistent with the powers granted by the general law, and the ordinance on that subject is therefore preserved, under sec. 6, art. 1, of that law. A general law does not operate to repeal a special law on the same subject, although passed at the' same session. 78 Ill. 549.
    In the case of two affirmative statutes, one does not repeal the other, if both may consist together. 77 Ill. 271.
    Messrs. Lineuar & Lansden, for the defendant in error:
    The general law repealed the power to tax and license merchants. Law et al. v. People, 87 Ill. 387; People v. Cooper, 83 id. 585; Culver v. Third National Bank, 64 id. 528; Andrews v. People, 75 id. 605; Devine v. Comrs. of Cook Co. 84 id. 590.
    Counties and cities are alike subject to the control of the legislature; and has not the legislature, in effect, completely revised and recast the charter of the city of Cairo, by its passage of the general act allowing it to change its organization from the old to the new act ?
    Again, what was the object of the constitution in providing that no city should be organized, or have its charter changed or amended, except by a general law passed for that purpose ? The Supreme Court has said that the object was to bring about a uniformity of organization .on the part of cities. There is a like provision relative to counties. Devine v. Commissioners, etc. supra, and Guild v. City of Chicago, 82 Ill. 472.
    In case of two statutes relating to the same subject, and not in terms repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule' which should govern in the case, this will be construed as repealing the original act. Sacramento v. Bird, 15 Cal. 294; State v. Conkling, 19 id. 501; Swan v. Buck, 40 Miss. 268; School District. v. Whitehead, 13 N. J. 290; Plank Road v. Allen, 15 Barb. 15.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action originally instituted by plaintiff in error before a police magistrate, to recover from defendant in error a penalty of $10, imposed by an alleged ordinance of the city of Cairo for carrying on the business of a merchant within the corporate limits of the city without having first procured a license for that purpose, as required by the provisions of u the ordinance. There was a judgment for the defendant before the magistrate, and the city appealed to the circuit court, where a similar conclusion was reached. The city thereupon prosecuted an appeal to the Appellate Court for the Fourth District, where the judgment of the circuit court . was affirmed, and the case now comes here on error from the Appellate Court.

It appears that the city of Cairo, in 1867, was organized under a special act of the legislature, by the provisions of which it was authorized to license a number of trades and occupations, including that of merchants. In the exercise of this power, the city council passed an ordinance requiring all merchants doing business within the corporate limits of the city to procure licénses for the carrying on of such business, and imposing a penalty of $10 for every breach of such ordinance. In January, 1873, plaintiff in error, in pursuance of a vote of the qualified voters of the city, was reorganized under the general Incorporation law relating to cities and villages, and from thence until the present time has been acting under the same.

While the general Incorporation law authorizes the corporate authorities of the city to license certain trades and occupations, yet it does not, like the special charter of 1867, authorize the licensing of merchants, and in this respect we \ regard the two acts as in conflict. When the legislature, by the general Incorporation act, declares that the corporate authorities of cities and villages organized and acting under its provisions shall have power to license certain occupations and kinds of business, specifically enumerating them, such declaration must, by a familiar canon of construction, be construed precisely as if the act in express terms inhibited the licensing of all trades and occupations not contained in the enumeration. In discussing this principle, the Supreme Court of the United States, in Thomas v. West Jersey Railroad Co. 101 U. S. 82, says: “Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of those powers implies the exclusion of all others.”

Applying the principle to the several provisions of the general and special charters, with respect to the question under consideration, they are clearly inconsistent with each other; for the special charter, as we have already seen, in express terms confers the power to license merchants, while the general charter, by necessary implication, denies it. By section 6, art. 1, of the latter act, it is expressly provided that after such reorganization under the general law, all laws in conflict with its provisions shall no longer be applicable to the municipality under its new organization. The two acts being inconsistent in the respect mentioned, it follows that the provision in the special charter authorizing the licensing of merchants ceased to have any application to the city upon the change in its organization. The practical effect of this was to leave the ordinance under which the defendant in error was prosecuted, without any power or authority to support it.

. It is urged, however, that notwithstanding the provision in the special charter authorizing the taxing of merchants ceased to be applicable to plaintiff in error upon the change in its organization, still, by an express provision in the general law, the ordinance itself is continued in force, and fully authorized a conviction. The provision relied on as sustaining this view is found in section 11, art. 1, of the general Incorporation act, and is as follows: “All ordinances, resolutions and by-laws in force in any city or town when it shall "organize under this act, shall continue in full force and effect until repealed or amended, notwithstanding such change of organization.” While this view, at first Mush, may seem plausible, yet we are of opinion that a fair construction of the language used, when taken in connection with section 6 of same article, which we have just been considering, does not sustain it. Doubtless, all that was intended by this provision was to continue in force all ordinances, resolutions, etc., adopted under a special charter, which could lawfully be passed under the general Incorporation law. The construction contended for would lead in this case, as in many others that might be suggested, to the illogical and absurd result -that the legislature would intentionally repeal or abrogate a law authorizing the passage of an ordinance, and 'by another provision in the same act continue in force the ordinance itself, and also to the further result that a city or village reorganized under the general Incorporation law might have ordinances in force which the corporate authorities might repeal, or not, at their own pleasure, and yet if once repealed would have no authority to reenact them. . We can not believe the legislature ever intended, by the provision in question, to bring about such a state of things.

It is said by Mr. Dillon, in his work on Municipal Corporations, sec. 20 (1st ed.): “General incorporation acts, rather than special charters, would seem, clearly, to be the best method of creating and organizing municipal corporations: 1. It tends to prevent favoritism and abuse in procuring extraordinary grants of special powers. 2. It secures uniformity of rule and construction. 3. All being created and endowed alike, real wants are the sooner felt and provided for, and real grievances the sooner redressed. ” Now, since the construction contended for would evidently defeat some-of the objects the legislature may reasonably be presumed to have had in view in adopting the general Incorporation law, as shown by this distinguished author, it affords the most satisfactory evidence that such construction is not the true one. If, as claimed, the legislature intended to continue in force, after reorganization under the general law, all ordinances passed under special charters, without regard to whether any power is contained in the general law to support them, then the reorganization under the general law, so far from tending to “uniformity of rule and construction, ” would lead to the very reverse,—indeed, it would lead to great confusion and the most embarrassing complications. Under such a state of things, in every case where the question in controversy depended upon whether a particular ordinance passed under the old charter was in force or not, before one would be safe in arriving at a conclusion upon the subject he would necessarily have to examine both charters, and alt* ordinances passed under them subsequent to the original ordinance. This would not only involve the loss of much time and labor, but the conclusion reached, from the very nature of the case, would sometimes, if not often, be attended with more or less doubt and uncertainty. The construction we have given the act will obviate most, if not all, the inconveniences and evils that would inevitably result from the contrary view. In short, we are of opinion that it was the object of the legislature, in adopting the general Incorporation law, to place all cities, towns and villages organized under it, and of the same grade, upon a uniform and common footing with respect to their corporate powers and the manner of exercising them.

It was known to the legislature, at the time of the adoption of this act, that all the cities, and many of the towns, in the State, were incorporated under special charters, widely differing, in many cases, in their "provisions. While some of the powers conferred by these charters were common to all of them, yet many of them were not. Upon adopting' a general law on the subject, the legislature, as might have been expected, incorporated into it most of the powers to be found in the then existing special charters; but many of them, as in the case at bar, were omitted. The legislature did not see proper to directly repeal all special charters, but incorporated a provision in the general law by which existing corporations might abandon their special charters, and reorganize under the general Incorporation act. It was not intended that this change should at all affect the corporate existence or liabilities of the municipalities availing themselves of its benefits, nor was it intended that their existing powers or governments should be changed or otherwise affected, except in so far as the provisions of the general law differed with those of the old charters. So far as their provisions were substantially the same, or in other words not inconsistent with each other, they, together with all ordinances based thereon, were, by virtue of Ihe 6th and 11th sections of art. 1, above men-4 tioned, continued in force, in the same manner as if no change in the organization had taken place.

But it is objected that this would have been the result, under the circumstances supposed, without any special provisions in the general act to that effect, and that such a construction simply renders the provisions of sections 6 and 11, above cited, superfluous. Without stopping to determine whether this is so or not, it is sufficient to say that even admitting that the same result would, on general principles, have been reached without these sections, it does not at all follow that the object of the legislature in adopting them was different from that we have stated; for the legislature often, by way of giving a construction to a statute, declares, by a specific provision, that certain effects or consequences shall result from it, which, under a proper construction, would clearly flow from the act without the aid of such specific provision. Special provisions of this character are inserted to obviate all doubt as to the real objects of the legislature in adopting the act.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Lafayette Bolden et al. v. James D. Sherman.

      Filed at Ottawa January 18, 1882.

    1. Limitation—possession to defeat legal title. Adverse possession sufficient to defeat the legal title must be hostile in its character, and continue uninterruptedly for twenty years.
    2. Same—under the act of 1835. To make seven years possession by actual residence a bar to the recovery of land, under the Limitation act of 1835, the party must show that during such possession he had a connected title, in law or equity, deducible of record from this State or the United States.
    3. Same—under act of 1839—payment of taxes. Where the record shows that both parties in an action of ejectment have paid the taxes on the land in suit for seven years prior to the suit, without showing which paid first, a defence is not made out under the Limitation law of 1839. The burden of proof is upon the defendant setting up the statute, to show that he paid such taxes before the plaintiff. The party paying first in any year is the one who has paid the taxes of that year.
    Appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. Charles H. Wood, for the appellants:
    A constructive adverse possession will extend over the whole of the tract included in the color of title, though only part be actually occupied. Hinchman v. Whetstone, 25 Ill. 185; Jackson v. Camp, 1 Cow. 605; Munro v. Merchant, 28 N. Y. 9.
    When owners of adjoining lands build a fence between them upon the assumed boundary line, and each holds and occupies up to it on his side, claiming it as the true line, their possession is adverse, and will ripen into á valid title. Burrell v. Burrell, 11 Mass. 297; Stuyvesant v. Tompkins, 9 Johns. 62; Jones v. Smith, 64 N. Y. 180.
    Again, I claim that the appellant Stevens has shown a connected title in law, deducible of record, to the premises in controversy, with actual possession for 19 years, and this is a sufficient bar to the plaintiff’s action under the law of 1835, which is still in force. Bev. Stat. chap. 83, sec. 4; Lender v. Kidder, 23 Ill. 49; Jandon v. McDowell, 56 id. 53.
    It is not necessary that he should reside upon every part and parcel of the land. Williams v. Ballance, 23 Ill. 193; Wharton v. Banting, 73 id. 16.
    And such residence may be by a tenant. Martin v. Judd, 81 Ill. 480.
    It is no objection that the title has come down through executors. Collins v. Smith, 18 Ill. 160.
    Nor does it make any difference that there was a mistake in the boundary .line of occupation. Bauer v. Gottmanhausen, 65 Ill. 499.
    Again, I claim we established a good color of title, with possession and payment of taxes for more than seven years, on the whole of lot 11, and that is a bar to plaintiff.
    Messrs. Bosenthal & Pence, for the appellee:
    Neither the twenty -years’ Statute of Limitations, nor the statute of 1835 or 1839, has been pleaded, hence no defence can be made under those statutes. Borders v. Murphy, 78 Ill. 81.
    The nature of that adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it, or by one against whom the adverse occupant brings ejectment, must be actual, visible, notorious, distinct and hostile possession. Tyler on Ejectment, 900; 2 Smith’s Leading Cases, *561; Calhoun v. Cook, 9 Pa. 226; Turney v. Chamberlain, 15 Ill. 271.
    The Limitation law of 1835 does not apply, because the Stevens deed does not cover the six feet in question, and if it did, it does not show a connected title, deducible of record. As to the statute of 1839, the facts do not constitute a defence thereunder, because the deed to Stevens does not embrace this strip, and the evidence fails to show that Stevens paid all taxes legally assessed thereon for seven years.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, brought by Sherman against Stevens and his tenant, Borden, for the recovery of six feet of land fronting west on State street, and lying between Thirteenth and Fourteenth streets, in the city of Chicago, being 170 feet deep. On trial before the court without a jury, there were a finding and judgment for the plaintiff, and the defendants appealed.

Sherman and Stevens are coterminous proprietors, Sherman on the south and Stevens on the north, and the controversy respects the boundary line running east and west between their lands. The six feet in question lies in the north-west fractional quarter of section twenty-two, running from State street east to Lake Michigan, and from Twelfth street south to Sixteenth street, the fractional quarter section containing about 107 acres.

Augustus Garrett was the common source of title to the premises in controversy. He, through mesne conveyances from the patentee from the United States, became vested with the south 33 acres of the north 1176.12 feet of the fractional quarter section. The south boundary line of this 33 acres was definite, the same being 1176.12 feet south from the north line of the quarter section, and there was no uncertainty as to this north line. Garrett owning this 33 acres, commenced to sell and convey the same in separate tracts, and he commenced conveying and measuring from the south line northward. He first conveyed a tract of 49.1 feet fronting on State street, and running thTough to the lake, to Hogan, the south line of this strip being the south line of the Garrett tract of 33 acres, and being 1176.12 feet south from the north line of the quarter section. The deed was filed for record September 15, 1846. Garrett ■ next conveyed to Merritt 90 feet north, and adjoining the Hogan tract, running through from State street to the lake, the deed being filed for record August 14, 1847. Garrett next conveyed to Sherman, the plaintiff, 110 feet, lying north, and adjoining the Merritt tract, running through from State street to the lake, • the deed being filed for record November 2, 1847. These three tracts together are 249.1 feet front on State street, and it is the north six feet of this Sherman tract about which this controversy arises.

Garrett, still owning the remainder of the south half of this 33 acres,—the north half having been conveyed to one Seaman, September 23, 1844,—died in 1849, having devised this tract so remaining in him to his wife, Eliza Garrett, and the latter died in 1856, devising the same to Grant Goodrich and other trustees, who conveyed to defendant Stevens, by deed dated April 5, 1860, a certain portion of such tract. The deed was filed for record April 23, 1860. Stevens claims under this deed, and to be in possession of this six feet thereunder.

It must be admitted that plaintiff holds the paramount title to this six feet by his prior deed from Garrett, for there can be measured off with certainty 249.1 feet north on State street, from a point 1176.12 feet south from the north-west corner of the quarter section 22, so as to leave no room for mistake. Indeed, there does not appear to be any dispute that plaintiff owns the paramount title from the United States of this six feet now occupied by defendants. But defendants’ defence is under the statutes of limitation: first, the twenty years’ Statute of Limitation; second, the seven years’ statute of 1835; and third, the seven years’ statute of 1839. The suit was commenced October 26, 1880.

Adverse possession sufficient to defeat the legal title must be hostile in its character, and continue uninterruptedly for twenty years. Turney v. Chamberlain, 15 Ill. 271; Ambrose v. Raley, 58 id. 506. It is not claimed for defendants that either of them was in possession of this six feet for more than nineteen years. Bauer v. Gottmanhausen, 65 Ill. 500, is referred to as an authority in favor of the defendants, where it was recognized to he the doctrine that when parties agree upon a boundary line between them, and enter into possession according to that line, they are thereby concluded from afterwards disputing that it is the true line, even when the Statute of Limitations has not run. But there is here nothing" of any agreement in regard to a boundary line, or of any entering into possession according to any such line, to bring the present case within the rule of the case cited.

The statute of 1835, relied upon, is, that actions brought for the recovery of any lands of which any person may be possessed by actual residence thereon for seven successive years, having a connected title in law or equity, deducible of record from this State or the United States, etc., shall be brought within seven years next after possession taken. Bev. Stat. 1874, p. 74. The record does not show title in Stevens to this six feet. The description in the deed to Stevens is as follows: “That part of fractional section 22, in township 39, north of range 14, east of the 3d P. M., commencing at a point on State street, 216 feet south of the north-west corner of the land belonging to the estate of the said Eliza Garrett, deceased, which adjoins the land formerly owned by Mrs. Ann Seaman, of New York; running thence south 51 feet, thence east 170 feet, thence north 51 feet, thence west 170 feet to point of commencing, known in a certain plat or subdivision of said property now in possession of the parties of the first part, as lots 10 and 11, in block number one. ”

As before observed, Garrett had conveyed to Seaman the north half of the 33 acres which he originally owned, which explains the reference to “Mrs. Ann Seaman” in the description in Stevens’ deed. The interest of Mrs. Seaman came to Susannah Drake, and the boundary line between her and Garrett, on his north, was fixed by- agreement in deeds of conveyance they made to each other in 1846. They attached to their respective deeds a map of the whole 1176.12 feet, dividing it off, and showing the tract by measurement intended to be conveyed to and owned by each. This map showed Garrett’s land to be the south 516.58 feet, on State street, of the tract. Garrett having conveyed 249.1 feet thereof, as stated, to Hogan, Merritt and Sherman, he had left of the 516.58 feet, therefore, 267.48 feet. Of this latter piece the trustees of Eliza Garrett conveyed to Stevens 51 feet, commencing 216 feet south from the north-west corner thereof, and running south 51 feet. Adding 51 to 216 makes 267 feet, which lacks just .48, or nearly one-half of a foot, of reaching the north line of Sherman’s land, and hence covers, by the description, no part of the six feet in controversy, which is the north six feet of the south 249.1 feet.

Stress is laid by appellant on the concluding part of the description, that the property is known in a certain plat or subdivision, now in possession of the- parties of the first part, as lots 10 and 11, in block number one. If this be taken as referring to the plat of a subdivision made in 1856 of the remaining part of the land which was left in the Garrett estate, that plat shows nothing different from the preceding portion of the description, but shows just the same.. The plat purports to be a map of the subdivision of the “Garrett tract,” to be “Garrett subdivision of land N. W. frac. 22, 39, 14, ” and in no other respect locates the land platted. The plat shows eleven lots fronting on State street, numbering from north to south, the first nine of the width of 24 feet, and lots 10 and 11 of the width, respectively, of 24 and 27 feet, the sum of them all being 267 feet. So that, according to the plat referred to, equally as by the preceding portion of the description, the land conveyed to Stevens was the south 51 feet of the 267 feet which was remaining in the Garrett estate after the prior conveyances to Hogan, Merritt and Sherman, and which, as we have seen, did not include any part of the six feet in controversy. Going outside of the record, we think the proof shows that this Garrett subdivision, as actually surveyed and laid out, in fact did include this six feet in lot 11. But the record of itself does not show this, so that there, does not appear by the record to be title in Stevens to the six feet, and he does not show a title thereto deducible of record from this State or the United States. .To deprive a man of his land by statute, the exact statutory condition to warrant it must be shown to exist. We think there is failure here in the exhibition of a title of record. This renders it unnecessary to consider the other question under the statute, whether there was actual residence on this land, as both facts, of title of record and actual residence, must concur to constitute the defence.

The last defence claimed by defendants, is under the statute of 1839—color of title, and possession and payment of taxes for seven consecutive years. It is admitted of record that plaintiff has paid all the taxes upon these six feet, according to the description in his deed. There is nothing appearing in the evidence as to which party paid the taxes first. If in any single year plaintiff paid the taxes, and afterward Stevens paid the amount of the taxes on the same land, he would not have paid the. taxes for that year—they would have been paid by plaintiff. Each party appearing as having paid the taxes, the burden was upon Stevens to show that he paid them before the same were paid by plaintiff. Failing in this, he does not make out a defence under this statute.

Finding the defence set up not to be sustained by the evidence, the judgment must be affirmed.

Judgment affirmed.

Mr. Chief Justice Craig, and Mr. Justice Dickey, dissent.