author: Mr. Justice Cbaig

text:
    W. H. Kratz v. Eli Buck.
    Filed at Springfield, September 27, 1884.
    1. Pcacini~n DETAINEE-by purchaser at judicial sale-against whom the action will lie. The remedy of forcible detainer given by statute in favor of a purchaser at a jndicial sale after the time of redemption has expired, is not restricted to the nominal party against whoth the judgment is obtained, but may be employed against any one who, either before or after the time of redemption has expired, obtains possession from the defendant in the jndgment or decree.
    2. SAME-by purchaser at judicial sale-evidence necessary to a recovery, Wbilv it is $rl4e that the question of title can not arise on the trial of an action of forcible detainer, nevertheless a purchaser at a judicial sale of land can not recover against the judgment debtor, or one succeeding to his rights and possession, unless he offers in evidence a valid judgment, execution and sheriff’s deed. These are indispensable requisites to a recovery, for the reason that a sale of the land under a judgment, and a failure to redeem, must be shown. In such case the judgment, execution and sheriff’s deed are evidence that the land has been. sold and that there has been no redemption.
    3. Where land was sold under execution issued upon a judgment against A, and B, his wife, and G, after A had placed the title fraudulently in his wife, and D afterwards recovered a judgment against A alone, and under execution thereon redeemed from the prior sale and became the purchaser, and procured a decree finding the title to the land was in A and not B, it was held, that D, after taking a sheriff’s deed, might maintain forcible detainer for the land against any one succeeding to the possession under A and B, or either of them, after the first sale.
    4. Bedemption — by judgment creditor having a judgment against a party who has fraudulently conveyed. Where land has been sold under execution against a husband and wife, the legal title of which was in the wife by a fraudulent conveyance from her husband, a judgment creditor of the husband alone may redeem from the prior sale, and have the property sold as that of the husband, especially after procuring a decree establishing that the conveyance to the wife was fraudulent and void as to the husband’s creditors.
    5. Parties in chanceby- — bill to set aside conveyance as fraudulent— purchaser at judicial sale. On a creditor’s bill to have a conveyance from a judgment debtor to his wife declared fraudulent, and subject the land to sale, by the complainant, by redemption from a prior sale under a judgment against both the husband and wife, the purchasers under the prior sale, whose rights are conceded and not attacked, are not necessary parties.
    Writ ok Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Mr. Thomas J. Smith, Mr. J. L. Bay, and Mr. A. H. Bryan, for the plaintiff in error:
    Plaintiff in error was the judgment creditor of Patrick Bates, who was also the debtor of Busey Bros, under their judgment, under which the sale of the land was made; and Patrick Bates, as shown by the decree of the circuit court, was all the time the owner of the land.

      Bedemptions are looked upon with favor, to the end that the debtor’s property may pay as many of his debts as possible. Sweezy v. Chandler, 11 Ill. 445; Kearns v. Lloyd, 52 id. 113; Massey v. Westcott, 40 id. 160; Schuck v. Gerlach, 101 id. 338.
    A judgment, even after the sale of real estate, so that it becomes a lien on the real estate before the time of redemption expires, entitles the judgment creditor to redeem. (Van-Rensalear v. Sheriff of Albany, 1 Gow. 501; id. 443.) But by our statute it is not even necessary that the judgment of the redeeming judgment creditor should be a lien on the land redeemed, at the time of redemption. Sweezy v. Chandler, 11 Ill. 445.
    Busey Bros, were not necessary parties, as no rights they had were sought to be impaired. Neither was Edward H. Bates, as he bought Us pendens, and was bound by the-decree. People v. Ransom, 4 Denio, 145.
    The law abhors shifts and connivances for the purpose of changing possession of land. Jefferson County v. Ferguson, 13 Ill. 33.
    A party purchasing pendente Ute, takes subject to the decree, and is treated as a party to it. (Jackson v. Warren, 32 Ill. 331; Rice v. Brown, 11 id. 549.) Such a purchaser holds in subservience to the rights of the parties as finally determined. Atwood v. Mansfield, 59 Ill. 496; Walker v. Douglas, 89 id. 425; Bung v. Paxton, 99 id. 288.
    No title can be deduced through a judicial sale after it has been rendered inoperative by a redemption. Parkhurst v. Race, 100 Ill. 558.
    Where the plaintiff show's a valid judgment execution sale, and a deed thereunder, he shows a clear case, under the statute, to recover. Jackson v. Warren, 32 Ill. 331; Johnson v. Baker, 38 id. 93.
    The party holding the legal title must recover in detainer, and the question as to whether the sale, foreclosure as trustee’s sale, or redemption, was properly made, can not be heard, tried, or inquired into in this action. They must go to a court of equity and have our redemption set aside, but can not defend against our title and right of possession in this action. Rice v. Brown, 77 Ill. 549; Dawson v. Hayden, 67 id. 52; Graham v. Anderson, 42 id. 517; Rees v. Allen, 5 Gilm. 236.
    Mr. J. O. Cunningham, for the defendant in error:
    At the date of the sale under the Busey judgment the title to the land was in Bridget Bates, and the land was levied upon as her property, and the right of redemption was in her. After the year expired it was alone in her judgment creditors. As Patrick Bates had parted with his title, and could not redeem, neither could his creditors. Phillips v. Demoss, 14 Ill. 410.
    The judgment must be a lien on the land before a redemption can be had under it. Ex parte Wood, 4 Hill, 542 ; Ex parte Bank of Monroe, 7 id. 177; Phyfe v. Riley, 15 Wend. 248.
    Buck not being a party to the judgment, the action does not lie against him. The eases cited are not like the present.
   Mr. Justice Cbaig

delivered the opinion of the Court:

This was an action brought originally before a justice of the peace of Champaign county, by W. H. Kratz, against Eli Buck and James Lynch, to recover possession of certain lands, under the sixth clause of section 2, chapter 57, of the Revised Statutes of 1874, entitled “Forcible Entry and Detainer,” which reads as follows: “When land has been sold under the judgment or decree of any court in this State, or by virtue of any sale made under any power of sale in any mortgage or deed of trust contained, and the party to such judgment or decree, or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or gieglects to surrender possession thereof, after demand, in writing, by the person entitled thereto, or his agent. ” A recovery was had by the plaintiff before the justice, but on appeal to the county court of Champaign county the action was dismissed by plaintiff as to the defendant Lynch, and on a trial as to the other defendant, judgment was rendered against the plaintiff. This judgment was affirmed in the Appellate Court, and the plaintiff sued out this writ of error.

Two questions are presented by the record: First, under the facts can the action of forcible detainer be maintained; and second, was the land in question sold under a judgment and acquired by the plaintiff, within the meaning of the statute which authorizes a recovery against a party to such judgment in this form of action.

On the 25th day of January, 1878, Busey Bros, recovered a judgment in the circuit court of Champaign county, against Bridget Bates, Patrick Bates and Bernard Lynch, for the sum of $250. On the 18th day of January, 1882, an alias execution issued on this judgment, which was levied on the land in controversy, and the land was duly sold by the sheriff-to the plaintiffs in the execution, on the 20th day of February, 1882, and a certificate of purchase issued to them. It also appears that W. H. Kratz, the plaintiff in this action, on the 14th day of August, 1876, recovered a judgment in the county court of Champaign county, against Patrick Bates, for the sum of $276.90, and costs of suit. On the 26th day of August, 1876, an execution was issued on this judgment, and returned no property found. On the 15th day of May, 1883, a second execution issued upon this judgment, and was placed in the hands of the sheriff, and at the same time Kratz placed in the hands of the sheriff an amount of money necessary to redeem from the sale made on the judgment in favor of Busey Bros., February 20, 1882. The sheriff filed a certificate of redemption, levied the execution on the premises, advertised, and sold the1 same to Kratz, who bid the amount of redemption money, interest and costs, and as no other bid was made, a sheriff’s deed was made to the 'purchaser. The plaintiff also put in evidence a bill in equity filed in the Champaign circuit court by the plaintiff and others, against Patrick and Bridget Bates, and a decree rendered in said cause, March 28, 1883, from which it appears that the land in question was originally owned by Patrick Bates; that on January 13, 1874, he conveyed the land to Bernard Lynch, and on the same day Lynch conveyed to Bridget Bates. The decree finds this transaction fraudulent, and the deeds' are set aside, and the land decreed to be in Patrick Bates. The defendant read in evidence the certificate of purchase which was issued to Busey Bros., with an assignment on the back of the same to Edward H. Bates; also a sheriff’s deed, made on said certificate, to Bates, May 24, 1883. In connection with this evidence Bates testified that Buck, the defendant, was in possession of the premises in controversy, as his tenant, since March, 1883; that' he bought the Busey certificate of purchase January 25, 1883, and his mother, Bridget Bates, let him take possession under the certificate after he bought. He also testified that he was the son of Patrick and Bridget Bates.

Under these facts the county court refused to hold as law the following propositions:

First — That the redemption of the land in controversy in this suit by the plaintiff, Kratz, from the sale of the same, on Busey Bros, judgment on execution issued on their judgment, was a legal redemption from the sale of said land. ■
Second — That the deed issued by the sheriff to Edward H. Bates, the assignee of the certificate of purchase issued to Busey Bros., was and is void, and has no legal effect.
Third — That the plaintiff, Kratz, may maintain this action, to-wit, forcible detainer, against the defendant, Eli Buck, for so much of the land as the evidence shows he was in possession of at the time of the commencement of this suit.

It is contended that this action can not be maintained against Buck, who is in possession under Edward H. Bates, and the county court so held. As before observed, the stat-' ute provides that the action may be brought against the party to the judgment under which the lands were sold. Was the defendant, Buck, a party to the judgment, within the meaning of the statute ? The construction of this statute authorizing a purchaser under a judicial sale, after his purchase had ripened into a title, to sue for the possession of the land in an action of forcible detainer, first came before this court in Jackson v. Warren, 32 Ill. 331, and it was there held that the remedy was not restricted to the nominal party against whom a judgment or decree w’as rendered, but may be employed against any one who, even after the time of redemption from the sale, obtains possession from the defendant in the judgment or decree. It was also held that all parties bound by the decree might, to that extent, be said to be parties to the decree, within the meaning of the statute, although not named in the decree. The same rule was announced in Rice v. Brown, 77 Ill. 349. Here, at the time of the rendition of the judgment in favor of Busey Bros., Patrick and Bridget Bates, against whom the judgment was rendered, were in possession of the premises, and, so far as appears, they remained in possession until January 25, 1883, when, as appears from the evidence of Edward H. Bates, his mother, Bridget Bates, surrendered the possession to him, and he leased to Buck. It thus appears that Edward H. Bates and Buck stand in the shoes of Bridget Bates, who could not, a short time before the time of redemption expired, turn over the possession to them and defeat the remedy provided by the statute. Suppose a person against whom a judgment or decree has been rendered, after a sale of his land under the judgment or decree, and before redemption expires, conveys his interest in the land to another, who enters into possession under such deed, can such person successfully resist an action of forcible detainer brought by the purchaser under the judgment or decree after the time of redemption has expired and a deed has been made to such purchaser? We think not; and yet there is no difference, in principle, between the case supposed and the one under consideration. Had Patrick and Bridget Bates remained in possession until the plaintiff obtained his deed, there is no question in regard to the right of plaintiff to maintain the action against them, and in our judgment the defendant who went in under them, occupies no better position.

We now come to the other question. It is true that the question of title can not be determined in an action of this character, but at the same time a plaintiff can not recover, under the statute, unless he offers in evidence a valid judgment, execution and sheriff’s deed. These are indispensable requisites to a recovery, because a sale of the land under a judgment, and a failure to redeem, must be established, and the judgment, execution and sheriff’s, deed constitute the evidence that the land has been sold and not redeemed. (Kepley v. Luke, 106 Ill. 395.) As has been before observed, the plaintiff read in evidence a judgment, execution and sheriff’s deed, but the deed was obtained on a sale of the premises under a redemption made by the plaintiff as a judgment creditor, from a prior sale of the land on execution, and it is insisted that the redemption was illegal. The sale redeemed from was in satisfaction of a judgment in favor of Busey Bros., against Bridget Bates, Patrick Bates and Bernard Lynch, while plaintiff’s judgment, under which he redeemed, was against Patrick Bates alone, and it is claimed that the legal title do the land was in Bridget Bates when it was sold on the Busey judgment, and that it was sold as her property, and as plaintiff’s judgment was not against her, he could not be regarded as a judgment creditor, within the meaning of the statute, and had no right to redeem. The fact that the sheriff may have regarded the property sold as the property of Bridget Bates, if such is the fact, is a matter of no moment. As the judgment, as well as the execution upon which the property was sold, was against Bridget and Patrick Bates, whatever title, legal or equitable, either of them had in the land, was sold by -the sheriff, and if it turned out that the land sold was the property of Patrick Bates, the statute conferred the right of redemption on any of his judgment creditors. Before plaintiff redeemed as a judgment creditor, it was determined by a decree of the circuit court of Champaign county that Bridget Bates never acquired title to the land, but- on the other hand, the title was in Patrick Bates. It will not, therefore, be necessary to enter upon a discussion of the question whether plaintiff, as a judgment creditor of Patrick Bates, could redeem from a sale of lands belonging to Bridget Bates, on judgment and execution against the two.

But it is said that Busey Bros, were not parties to tin j decree, and their rights can not be affected by it. It was not necessary that they should be parties to the decree, for the reason that it was not attempted by the'bill to impair or in any manner abridge their rights. Whether the land belonged to Bridget Bates or Patrick Bates, in no manner concerned Busey Bros., as their judgment was against both of them, and the sale would pass the title whether it was held by the one or the other, or both. The decree did not attack the validity of the sale or call it in question, but by not making Busey Bros, parties, rather conceded that their sale was valid, and they or their assignee would be entitled to the redemption money wrhich remains in the hands of the sheriff,, subject to their order.

In conclusion, we are of opinion that the county court erred in the construction of the law applicable to the case.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Frank P. Zimm v. The People of the State of Illinois.

      Filed at Springfield September 27, 1884.

    1. Evidence — declarations of a third person in hearing of defendant. On the trial of a policeman for an assault and battery, it appeared that the defendant had arrested a boy, without warrant, for jumping upon a passing freight train of cars, and that the boy’s brother having heard of the arrest, with a third person came up at a rapid gait to the officer, when an altercation between the three ensued, the third person acting in concert with the older brother, during which the officer struck the latter with a “billy,” which was the battery complained of. A witness who was present at the time of the difficulty, was asked, “What, if anything, did such other person say to the older brother in the presence and hearing of the officer, at that time?” which the court refused to allow the witness to answer: Held, that the court erred in not allowing the witness to answer the question.
    2. Ebbor wide not always bevebse — as to excluding evidence, and in instructions. A refusal to allow a witness present at an assault and battery, to testify what a person acting in concert with the party assaulted said to the latter in the hearing of the defendant before the assault, although an error, is no ground for reversing a judgment of conviction, when it appears that the defendant was allowed to testify fully as to what was said and done by such person, and that his statements could not have changed the result. Nor is error in instructions a ground of reversal, if it appears that the result of the trial would have been the same if the instructions had been free from error.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of Greene county; the Hon. Geo. W. Herdman, Judge, presiding.
    Messrs. Patterson & Starkey, and Messrs. Withers & Henshaw, for the plaintiff in error:
    Zimm was clearly in the discharge of his duty, and lawfully had Thomas Hyndman in his custody for a violation of section 65, chapter 114, of the Revised Statutes.
    The court clearly erred in refusing to allow the language of Scott to Hyndman, at the moment the blow was struck, to go to the jury. All that was then said and done was a part of the res gestee, and should have been permitted. The court refused to allow, a specific question to the witness Barry, and if there was no other error in this case, we insist that this alone is sufficient to reverse the unjust judgment against Zimm. The language of Scott, under the circumstances, is so manifestly a part of the res gestee, that we do not deem it necessary to present any authorities upon that point.
    It was wholly irrelevant to any issue of the case that the defendant, three or four days after the transaction, said “he was not sorry, ” etc., and the court erred in calling attention to this part of the evidence in the eleventh instruction given for the People, Harris v. Miner, 28 Ill. 135; Coughlin v. The People, 18 id. 266.
    Substantially defective instructions of an important character are not cured by others that do state the correct rule of law. Railroad Co. v. Harwood, 80 Ill. 88; Camp Point Manf. Co. v. Ballou, 71 id. 417; Baldwin v. Killian, 63 id. 550.
    Where instructions cross one another upon a vital point, a good one will not cure an erroneous one. (Railroad Co. v. Larmon, 67 Ill. 69.) The jury should be aided and not misled by the instructions.
    Mr. D. F. King, for the People:
    Scott and Hyndman being then standing and talking, and neither advancing nor making any demonstrations towards Zimm, it was immaterial what Scott was saying to William Hyndman at the time Zimm struck the latter.
    If the whole record shows that substantial justice has been done and no prejudice.has resulted by reason of an erroneous instruction, and that the law of the case has been fully given, this court will not reverse. Kelley v. The People, 40 Ill. 488; Burling, Admx. v. Railroad Co. 85 id. 18; Taylor v. Railroad Co. 10 Bradw. 311 ; Warren v. Dickson, 27 Ill. 115 ; Howard Fire and Marine Ins. Co. v. Carnick, 24 id. 455.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This appeal brings before us for review a judgment of the Appellate Court for the Third District, affirming a conviction in the circuit court of Greene county, of Frank P. Zimm, for an alleged assault and battery upon William Hyndman. The cause was first tried before a justice of the peace, resulting in the defendant’s conviction, the magistrate fixing the fine at ten dollars. On appeal by the defendant to the circuit court, the cause was there tried de novo, resulting the same way, except that the jury fixed the fine at twenty dollars instead of ten dollars, and the circuit court rendered final judgment on the verdict for that amount, which, as already stated, was affirmed by the Appellate Court.

The facts are in substance these: On the 19th of May, 1883, the defendant, being a special policeman appointed by the mayor of the city of Eoodhouse, arrested, without warrant, Thomas Hyndman, a boy about seventeen years of age, (a brothel’ of the said William Hyndman,) for having jumped and rode for a short distance on a passing freight train belonging to the Chicago and Alton' Eailroad Company. His brother, William, hearing of the arrest, came up at rather a rapid gait, in company with one Scott, to where the officer was, when an altercation occurred between them, in which Scott participated. As to what actually did take place .the evidence is quite conflicting. The fact, however, is undisputed, that during the altercation the defendant first drew a revolver upon William, but afterwards put that up and drew from his pocket a “billy, ” with which he struck him on the head, inflicting a wound from which the blood, for the time being, flowed quite freely, though it turned out to be not very serious, — and it was for this assault with the “billy,” the defendant was convicted.

With respect to controverted questions of fact three courts have found adversely to the plaintiff in error, and we have no disposition, even if we had the power, to disturb the findings of those courts, for we think they are fully warranted by the evidence;

With respect to the errors of law relied on for a reversal, little need be said. The first point made in the brief of. the plaintiff in error relates to the ruling of the circuit court upon a question of evidence. Witness Barry, having testified to the circumstances attending the assault, which, as related by him, showed that Scott was acting in concert with Hyndman, was asked this question: “What, if anything, did Frank Scott say to Mr. Hyndman, in the presence and hearing of Zimm, at that time?” — which question the court, on objection by the People, held improper, and refused to permit the witness to answer it. Wé are of opinion the court erred in not allowing the witness to answer this question, yet we do not regard the error, under the circumstances of the case, of so serious a character as to require a reversal of the judgment. The defendant testified on his own behalf, and gave what purports to be a full account of the whole affair, setting forth particularly what Scott did and said, and we must assume the account which he gave of Scott’s connection with the transaction is fully as favorable to himself as the real facts would warrant, and we fail to discover anything in the statements attributed to Scott on the occasion, which, in our judgment, could possibly have changed the result, conceding them to have been made and established before the jury by any number of witnesses, — consequently the defendant could not have been prejudiced by the error in question.

Several objections of a technical character are made to the instructions on behalf of the People. Without stopping to discuss them, it may be said, in general terms, conceding all the objections to be well founded, we do not regard any of the errors pointed out, of so serious a character as to require a reversal. We have no doubt but that the result would have been the same had the instructions in question been entirely free from the objections urged against them. Being of this opinion, we certainly would not be warranted in reversing on the grounds suggested.

The judgment will be affirmed.

Judgment affirmed.


author: delivered the opinion of the Court:

text:
    Joseph J. Bentley et al. v. William O’Bryan et al.

      Filed at Springfield September 27, 1884.

    1. Evidence — judgment on distress for rent for defendant, to disprove tenancy. A judgment in favor of the defendant in a proceeding by distress, on a plea simply denying indebtedness for rent, but not putting in issue the fact of a demise, is not admissible in evidence in another suit to disprove there was any tenancy between the parties.
    2. Eobmeb adjudication — no bar as to matter not made an issue. To a distress warrant the defendant pleaded that he was not indebted in manner and form as alleged in said warrant, upon which issue was taken, but filed no plea denying the demise. A verdict and judgment were given for the defendant: Held, that the verdict and judgment did not estop the plaintiff in another suit from asserting that the defendant was his tenant.
    3. Mobtg-age — presumption that a deed is not a mortgage. Where a deed for land on its face appears to be an absolute and unconditional conveyance, and is acknowledged and delivered, the law will presume, in the absence of proof showing the contrary, that it is what it purports to be, — an absolute conveyance.
    4. Same — burden of proof on question whether a deed is or not a mortgage. Where a warranty deed for land, absolute on its face, is claimed to be a mortgage, only, the party alleging such to be the character of the instrument must sustain his claim by evidence sufficiently clear and satisfactory to overcome the presumption of law that it is an absolute conveyance. Loose, indefinite and unsatisfactory evidence will not suffice.
    5. Admissions — of grantor after conveying, as against grantee. The admissions and declarations of a grantor of land, made when the grantee is not present, can not be admitted in evidence to invalidate his deed or to affect his grantee.

      Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    This was a bill in chancery, brought by Joseph J. Bentley and Benjamin Bentley, on February 20,1883, against William O’Bryan and David Bice, to have their two certain deeds of conveyance of certain lands to William O’Bryan, dated December 7,1878, declared a mortgage, and for leave to redeem from the same. The bill alleges, complainants, before making such conveyances, farmed said lands as partners; that they, being largely in debt, and unable to meet their liabilities, made an arrangement with O’Bryan, who was their surety on many of the debts, whereby he was to pay off such debts, and complainants were to convey to him said lands to indemnify him as surety, and to secure him in moneys advanced and to be advanced by him for the complainants, or whatever sum they might be indebted to him, O’Bryan; that complainants should have five years in which to pay O’Bryan the principal owing him, with interest, and that under such arrangement said lands were conveyed to said O’Bryan by deeds absolute upon their face, but in reality they were mortgages to secure said O’Bryan in his advances then and thereafter to be made, and that O’Bryan did, in pursuance of said arrangement, pay off most of complainants’ said debts. The bill alleges various payments which were claimed to have been made by the complainants, and prayed that an account might be taken of what was due, and for leave to redeem from such conveyances. It also charged that O’Bryan, for the purpose of defrauding complainants, conveyed said lands to said Bice, on August 31, 1882, without the knowledge or consent of complainants, for $4200 in cash, and the assumption of a mortgage on the premises, of $2200. The bill also charged that O’Bryan claims to have leased the lands to complainant Joseph J. Bentley, and had commenced a proceeding by distress for rent claimed to be due, and had levied the same. The bill prayed that all proceedings at law be enjoined, etc. Bice and O’Bryan both answered the bill, the latter claiming that the conveyances to him were absolute, and not as a mortgage to secure the payment of money, and that complainant Joseph J. Bentley remained on the larfds as his tenant. Bice claimed as a purchaser for value, without notice that the deeds to O’Bryan were given to secure the latter, if such was the case, and claims that he informed the complainant Joseph J., of his intended purchase of such land from O’Bryan, and that Joseph J. said nothing about any claim to the property. The complainants afterwards filed their supplemental bill, which was amended so as to set up certain proceedings by O’Bryan to collect rent by distress, and a finding and judgment against the claim for rent as res judicata, upon the question of there being the relation of landlord and tenant between said Joseph J. and the said O’Bryan. The court sustained a demurrer to this amended supplemental bill. The cause was heard on the bill, answers, replication thereto, and proofs, and a decree entered dismissing the bill, and for costs against the complainants. From this decree the complainants bring the cáse to this court by appeal, and assign for error the sustaining of the demurrer to their amended supplemental bill, and the dismissal of such bill and the original bill.
    Messrs. Lothrop & Wolfe, for the appellants:
    Declarations and admissions, when deliberately made, are the most satisfactory character of evidence; but casual remarks or expressions, carelessly made, are unsatisfactory and inconclusive. Frizell v. Cole, 29 Ill. 465; Railway Co. v. Button, 68 id. 409; Straubher v. Mohler, 80 id. 21; Hartley v. Lybarger, 3 Bradw. 554.
    In a proceeding to redeem from a deed given as a mortgage, the statements and admissions of parties, favorable to their own interests, should be received with great caution, because they may be readily fabricated or distorted. Aborn v. Burnett,
      2 Blackf. 101; Cornell v. Erill, 4 id. 67; Miller v. Thomas, 14 Ill. 430.
    If the relation of debtor and creditor still remains, the conveyance must be regarded as a mortgage. 1 Jones on Mortgages, 264; Sutphen v. Cushman, 35 Ill. 187.
    In equity, the intention of the parties that the deed shall stand as a security stamps it infallibly as a mortgage. Tillson v. Moulton, 23 Ill. 648; Heath v. Williams, 30 Ind. 495; Adams’ Equity, 111. Willard’s Eq. Jur. 432.
    The intention of the parties must control. (Ewart v. Walling, 42 Ill. 453; 1 Jones on Mortgages, 258, 263, 265.) And circumstances, as much, if not more, than the declarations of the parties, show the intent. 1 Jones on Mortgages, 267; Enner v. Thompson, 46 Ill. 215; Sutphen v. Cushman, 35 id. 187; Lindauer v. Cummings, 57 id. 195.
    The retention of the evidences of indebtedness by the grantee, uncancelled and unsatisfied, will, in equity, create the deed a mortgage. 1 Jones on Mortgages, 267; Montgomery v. Chadwick, 7 Iowa, 114.
    In proceedings of this character it never escapes the eye of the court that the debt is not satisfied by the conveyance. Smith v. Cremer, 71 Ill. 185; Sutphen v. Cushman, 35 id. 186 ; 1 Jones on Mortgages, 167, 269; Coats v. Woodworth, 13 Ill. 656; Bartling v. Brasuhn, 102 id. 444; Miller v. Thomas, 14 id. 429; Hanford v. Blessing, 80 id. 190; Colwell v. Woods, 3 Watts, 188; Wharp v. Howell, 5 Birney, 503; 2 Leading Cases in Eq. (part 2,) 444; Robinson v. Crosby, 2 Edw. Eq. 138; Robinson v. Crosby, 1 Paige, 480; 1 Hal. Rep. (Sumner,) 350; 3 Am. Chy. Dig. 28; Preshbaker v. Feeman, 32 Ill. 484.
    When the intent is doubtful, the courts will construe deeds to be mortgages, and are not inclined to construe them as conditional or absolute sales. 1 Jones on Mortgages, 279; Bishop v. Williams, 15 Ill. 553; Miller v. Thomas, 14 id. 428; Pensoneau v. Pulliam, 47 id. 58; Bright v. Wagle, 3 Dana, 253; 3 Am. Chy. Dig. 22.

      Matters in bar of the defence, occurring subsequently to the filing of the original bill, are properly set up in a supplemental bill. Burke v. Smith, 15 Ill. 158; Mix v. Beach, 46 id. 311; Fahs v. Roberts, 54 id. 192.
    It is a familiar rule that a former adjudication is a bar as to all matters therein properly involved, and which might have been raised and determined in it. Rogers v. Higgins, 57 Ill. 244; Lathrop v. Hayes, 57 id. 279; Briscoe v. Lloyd, 64 id. 33; Town of Lyons v. Cooledge, 89 id. 529.
    Mr. J. L. Bay, and Mr. J. O. Cunningham, for the appellees:
    The judgment in the distress suit was not evidence on the question of tenancy, as that was not put in issue or involved. The only issue was, whether there was rent due. Wells on Replevin, 401; Taylor on Landlord and Tenant, 557; Bloomer v. Juble, 8 Wend. 448; Freeman on Judgments, 222.
    Deeds absolute in form, made, acknowledged and delivered, the law presumes to be what they purport to be, — absolute conveyances. Sharp v. Smitherman, 85 Ill. 153; Hancock v. Harper, 86 id. 445.
    Where deeds like these, absolute in form, are claimed to be mortgages only, the party alleging such a character must sustain his claim by evidence sufficiently preponderating to overcome this presumption of the law. Loose, indefinite and unsatisfactory evidence will never suffice. Wilson v. McDowell, 78 Ill. 517; Hancock v. Harper, 86 id. 446; Sharp v. Smitherman, 85 id. 153; Lindauer v. Cummings, 57 id. 195 ; Remington v. Campbell, 60 id. 516; Dwen v. Blake, 44 id. 135; Sutphen v. Cushman, 35 id. 186; Low v. Graff, 80 id. 360; Price v. Karnes, 59 id. 276; Magnusson v. Johnson, 73 id. 156; Knowles v. Knowles, 86 id. 1; Clark v. Finlon, 90 id. 245; Bartling v. Brasuhn, 102 id. 441; Shays v. Norton, 48 id. 100; Taintor v. Keys, 43 id. 332.
    Evidence of a parol agreement between parties, to the effect that a deed absolute in form was actually intended as a mortgage, is not sufficient to establish such a claim, unless facts and circumstances in evidence also concur in showing this fact, and in showing the actual relation of debtor and creditor to exist between the parties. Sutphen v. Cushman, 35 Ill. 187; Davis v. Hopkins, 15 id. 520; Bishop v. Williams, 18 id. 101; De Wolf v. Strader, 26 id. 225; Knowles v. Knowles, 86 id. 1; Taintor v. Keys, 43 id. 332.
    If the deeds were at first intended as mortgages, made to secure debts then due, and to secure future advancements, then we say that the acts of the parties, and Bentley’s oft repeated declarations, show an abandonment of that claim or character, and a cancelment of that secret agreement. This is especially true where, as here, the rights of third parties have intervened. Maxfield v. Patchen, 29 Ill. 42; Ferguson v. Tallmadge, 20 id. 599; Carpenter v. Carpenter, 70 id. 457; Clark v. Finlon, 90 id. 245; Wyhcoop v. Cowing, 21 id. 570.
    The evidence adduced by complainants in this case shows rather a contract to repurchase the lands. Especially is this true of the admissions by O’Bryan. Such being the fact, the decree dismissing the bill was proper. Pitts v. Cable, 44 Ill. 103; Hanford v. Blessing, 80 id. 188.
   Mr. Justice Dickey

delivered the opinion of the Court:

The complainants in this case contend that their conveyances of the lands to O’Bryan, though absolute in form, are only a security in the nature of a mortgage. It appears that the complainants, and part of the time another brother, David Bentley, were partners, and interested as such in the lands in dispute, though the title to one tract stood in Joseph J. Bentley, and the other in Benjamin Bentley; that the partnership business was conducted mainly by Joseph J., and that in conducting the business, (principally farming,) debts were contracted, and both tracts of the land were mortga'ged or conveyed by trust deed to one Harmon, to secure a loan of $2250, which was used to discharge such debts, and otherwise, in the partnership business; that further indebtedness was contracted in the business to divers persons, for which notes of the Bentleys were given, upon nearly all of which O’Bryan was security; that O’Bryan had paid one or more of these security debts, for which complainants, on December 7, 1878, were owing him, besides other unsettled accounts between them; that complainants, and O’Bryan with them, were being pressed by the creditors of the Bentleys, judgments were taken and others threatened, and that on December 7, 1878, complainants conveyed the lands to O’Bryan by warranty deeds, but no money or thing of value passed from O’Bryan to the complainants as a consideration for such conveyances. The only consideration for the conveyances was the agreement of O’Bryan with-complainants at the time, but what that agreement was is the subject of dispute in this cause. Shortly after making these conveyances the partnership of the Bentleys was dissolved, and Benjamin and David Bentley left the farm, Joseph J. Bentley remaining in the exclusive occupancy and apparent exclusive com trol of the farm up to the filing of this bill, and who paid and delivered to O’Bryan, from time to time thereafter, both money and grain. O’Bryan, after such conveyances, paid, or caused to be paid, a large part of the complainants’ indebtedness, taking receipts to himself, and retaining old notes and mortgages taken up by him.

The complainants contend that their deeds to O’Bryan were mortgages, made with the express agreement that they should be security to O’Bryan for what complainants then owed him, and for future advances to be thereafter made by O’Bryan in paying off complainants’ debts, and that Joseph was to remain upon the farm, pay a sum each year sufficient to pay interest and the annual taxes, and have five years in which to discharge the indebtedness and redeem the land from the mortgage lien. The defendants claim that the deeds are absolute conveyances, made in pursuance of an agreement to sell the land to O’Bryan at $30 per acre, to be paid by O’Bryan in taking up complainants’ indebtedness; that if .the debts were less than the price, the balance should be paid to Joseph J. Bentley by O’Bryan, and if more, Bentley was to repay such excess to O’Bryan, and that at the same time a separate agreement was made between O’Bryan and J oseph J. Bentley for the leasing of the land to the latter for one-third of the crops raised on the same, and that. Joseph J. has since occupied said land under such agreement for renting.

To estop the defendant O’Bryan from setting up and claiming the relation of landlord and tenant between him and J oseph J. Bentley, and that the latter was to pay rent for the land, complainants, by their amended supplemental bill, set up a judgment in favor of the defendant, in a proceeding by distress for rent, brought by O’Bryan, against said Joseph J. Bentley. The circuit court sustained a demurrer to this amended supplemental bill, and this is assigned for error. Upon the hearing the complainants offered in evidence the record in the distress proceeding as a bar to the defence set up, which the court refused to admit, and this is also urged as an error. We think there was no error in either ruling of the court. A proceeding by distress for rent may involve two issues, — that is, whether the relation of landlord and tenant exists, and whether any rent is due. The proceeding in this case was commenced on September 12, 1882, by O’Bryan, against Joseph J. Bentley, and was tried after the conveyance to Bice. It was brought to recover rent claimed to have accrued before the conveyance to Bice. To the distress warrant, as amended, the defendant therein pleaded that he was not indebted in manner and form as alleged in said warrant, upon which issue was taken. There was no plea denying the demise, and the verdict found that there was no rent due the plaintiff at the time of suing out the distress warrant. The judgment of the court was to the same effect. The verdict might have been the result of a finding that the rent had not matured, or had been paid, or that a deed of the lands to Bice before the rent was due, transferred O’Bryan’s rights to him. The verdict and judgment can not be regarded as an estoppel upon O’Bryan to claim that Bentley was his tenant before he conveyed to Bice. They were not even evidence in favor of Joseph J. Bentley upon the real issue involved in his bill. They could not afford any evidence that complainants’ deeds were given merely as securities for the payment of money.

As to the conveyance of Benjamin Bentley to O’Bryan, of his eighty-acre tract, there can he but little doubt that it was, and is, an absolute deed. He testifies as follows: “O’Bryan first wanted a mortgage, and then the mortgage matter fell through for some reason, and then he proposed taking a deed. O’Bryan made a statement to me that if my brother Joseph should stay on the farm and redeem, he would throw off $500. The arrangement was for him (O’Bryan) to see that the indebtedness was paid off, and release me. That was all the arrangement we had on the subject.” He afterwards states that he derived his knowledge of the arrangement from what his brother said. His deed to O’Bryan was made subject to the incumbrances, then on the land, and upon making the same he left the State, and has ever since made his home in Pennsylvania, and he has never claimed any right to redeem, or that he ever had any agreement with O’Bryan giving him a right to redeem. His subsequent conveyance to his brother Joseph, without any consideration, gives him no right of redemption. As to this- tract there was no error in dismissing the bill.

Where a deed for land on its face appears to be an absolute and unconditional conveyance, and is acknowledged and delivered, the law will presume, in the absence of proof showing the contrary, that it is what it purports to be, — an absolute conveyance. (Sharp v. Smitherman, 85 Ill. 153; Hancock v. Harper, 86 id. 445.) Where a warranty deed for land absolute in form is claimed to be a mortgage only, the party alleging such a character must sustain his claim by evidence sufficiently clear and satisfactory to overcome this presumption of the law. Loose, indefinite and unsatisfactory evidence will never suffice. Wilson v. McDowell, 78 Ill. 517; Lindauer v. Cummings, 57 id. 195; Remington v. Campbell, 60 id. 516; Dwen v. Blake, 44 id. 135; Sutphen v. Cushman, 35 id. 186; Low et al. v. Graff et al. 80 id. 360; Price v. Karnes, 59 id. 276; Magnusson v. Johnson et al. 73 id. 156; Knowles et al. v. Knowles, 86 id. 1; Clark v. Finlon, 90 id. 245; Bartling et al. v. Brasuhn et al. 102 id. 441; Shays et al. v. Norton, 48 id. 100; Taintor v. Keys et al. 43 id. 332.

It is not necessary to review the evidence on this branch of the case. It is sufficient to say that in our opinion it does not overcome the presumption of law that the deeds are absolute conveyances. It may be further observed that the declarations and admissions of O’Bryan, made after his conveyance of the premises to Bice, not in the presence of Bice, can not be received and considered as against Bice. The law is well settled that declarations of a grantor when the ■ grantee is not present, can not be admitted to invalidate his deed or to affect the grantee. Barrett v. French, 1 Conn. 354; Pettibone v. Phelps, 13 id. 450; Whiter. Wheaton, 16 id. 535.

Perceiving no error in the record, the decree of the circuit court is affirmed..

Decree affirmed.


author: Mr. Justice Sheldon

text:
    Rockwell King v. The City of Chicago.

      Filed at Springfield September 27, 1884.

      1. Municipal corporations — passage of annual appropriation ordinance. Although a city council is made to consist of a mayor and aldermen, the requirement, under the general law for the incorporation of cities and villages, that the city council shall, within the first quarter of the fiscal year, pass an ordinance to be termed the “annual appropriation bill,” does not mean that there shall be passed a complete ordinance, having the sanction both of the city council and mayor, within that time. City council and mayor are distinguished from each other in this respect.
    2. Same — of the mayor's veto of appropriation bill. The city council is given the last moment of the period named to pass the appropriation bill, after which the mayor has at least five days in which to give or withhold his approval, either in whole or in part.
    3. Same — what is a passage of appropriation ordinance within the first qua/rter. Upon the return by the mayor of an appropriation ordinance with a veto as to any item thereof, it is made the duty of the city council to reconsider the vote by which it passed, and if upon such reconsideration after the expiration of the first quarter of the fiscal year, vetoed items of an appropriation bill passed within such quarter be passed by the council over the veto, the appropriations are to be taken, within the meaning of the law, as having been passed within the first fiscal quarter.
    4. So where the mayor of a city returns an appropriation ordinance with his veto as to one item thereof, for the reason that it is too large, the same having been passed on the last day of the first quarter of the fiscal year, but returned at the next meeting of the council thereafter, and the city council then passes the same, at a reduced sum, over the veto, this will be regarded as an adherence to the appropriation first made, in part, and the same will be legal, as having been passed in proper time. The right to pass the whole over a veto includes the power to pass the same in part, and adhering in part to the item of appropriation is not a further appropriation.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shephard, Judge, presiding.

      Mr. Geo. Mills Rogers, for the appellant.
    Mr. F. S. Winston, Jr., Corporation Counsel, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The bill of complaint in this case, filed by a tax-payer of the city of Chicago, alleges that the city is organized under the general law for the incorporation of cities and villages; that its fiscal year runs from January 1 to January 1; that it is the duty of the city council to pass the annual appropriation bill within the first quarter of the fiscal year, and that no appropriations can legally be made after such time except by a sanction of a majority of the legal voters of the city, and that it is unlawful to add to the corporation expenditures in any year anything above the amount provided for in the annual appropriation bill,, except upon the happening of a casualty or accident; that there was duly passed on March 31, 1884, (the last day of the first quarter of the fiscal year 1884,) the annual appropriation bill for said fiscal year; that the next regular meeting of the city council occurred on April 7, 1884, at which meeting the mayor vetoed a number of items or appropriations contained in the bill, among which was the following: “For salary of three policemen for may- or’s and comptroller’s offices, at $1000 each, $3000.” The objection made by the mayor was, that two instead of three policemen were all that were needed for the service, and that a salary of $945 each, instead of $1000, was sufficient. The bill further alleges that upon receipt of the veto message the vote by which the appropriation bill was passed was duly reconsidered by the city council at the meeting of April 7, 1884, when it agreed, by a vote of twenty-nine yeas to two nays, to adhere to the item for policemen for mayor’s and comptroller’s offices, and pass the same to this extent, — that is to say, to appropriate for salary of two instead of three policemen for said purpose, and to fix said salaries at $945 instead of $1000 per annum, as recommended in the veto message, and the said item as passed by the council at the meeting of April 7, 1884, by said vote, was as follows: “For salary of two policemen for mayor’s and comptroller’s offices, at $945 each, $1890.” The bill avers that the said appropriation was duly approved by the mayor after being deposited in the office of the city clerk, and that due publication was had; that since the passage of said appropriation bill on March 31, 1884, there had been no petition by a majority of the legal voters of the city for any further appropriation, and no such proposition had been voted upon, and that since that time there had occurred no casualty or accident. The bill charges that this appropriation for two policemen, as passed April 7, 1884, was illegal, in that it was not made within the first quarter of the fiscal year, and an injunction was asked to prevent the city and its officers from incurring any expense or entering upon any contract based upon such appropriation. A demurrer to the bill was sustained, and the bill dismissed. On appeal to the Appellate Court for the First District the decree was affirmed, and the complainant appealed to this court, the proper certificate having been made.

The sole question which is presented for our decision upon the demurrer to the bill, is as to the legality of the appropriation in question, in the respect of its having been made, or not, by the city council within the first quarter of the fiscal year.

The provisions of the general law governing the passage of appropriation bills in chapter 24, of the Revised Statutes of 1874, are as follows: “The city council of cities, and board of trustees in villages, shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the ‘annual appropriation bill,’ in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriations shall be made at any other time within such fiscal year, unless the proposition to make each appropriation has been first sanctioned by a majority of the legal voters of such city or village, either by a petition signed by them, or at a general or special election duly called therefor. ” (Art. 7, see. 2.) “The city council shall consist of the ■mayor and aldermen. ” (Art. 3, sec. 1.) “All ordinances passed by the city council shall, before they take effect, be deposited in the office of the city clerk; and if the mayor approves thereof he shall sign the same, and such as he shall not approve he shall return to the council with his objections thereto, in writing, at the next regular meeting of the council occurring not less than five days after the passage thereof. Such veto may extend to one or more items or appropriations contained in any ordinance making an appropriation, or to the-entire ordinance; and in case the veto only extends to a part of such ordinance, the residue thereof shall take effect and be in force. ” (Art. 3, sec. IS.) “Upon the return of any ordinance by the mayor, the vote by which the same was passed shall be reconsidered by the council, and if,, after such reconsideration, two-thirds of all the members elected to the city council shall agree, by yeas and nays, to pass the same, it shall go into effect, notwithstanding the mayor may refuse to approve thereof. ” (Art. 3, sec. 19.)

Although the city council is made to consist of the mayor and aldermen, the requirement that the city council shall, within the first quarter of the fiscal year, pass an ordinance to be termed the “annual appropriation bill, ” does not mean that there shall be passed a completed ordinance, having the sanction of both city council and mayor, within that time. City council and mayor are distinguished from each other in this requirement. The council is given until the last moment of the period named to pass the appropriation bill, and then afterward is to come the action of the mayor upon it. The law expressly provides for the action of the mayor upon an ordinance after it shall have been passed by the city council, giving him at least five days’ additional time therefor, in requiring that all ordinances passed by the city council shall, before they take effect, be deposited in the office of the city clerk, for the mayor to approve or not approve, and that such as he shall not approve he shall return to the council with his objections thereto, in writing, at the next regular meeting of the council occurring not less than five days after the passage thereof. Upon the return of the ordinance by the mayor, it is made the duty of the council to reconsider the vote by which the same was passed. If upon such reconsideration after the expiration of the first quarter of the fiscal year, vetoed items of an appropriation bill passed within such first quarter be passed by the council over the veto, the appropriations are to be taken, within the meaning of this provision in question, as having been passed within the first fiscal quarter. This was so expressly decided by this court in Fairfield v. The People, 94 Ill. 245. There, under a former but similar charter to the law under which the city of Chicago is now acting, in that it required all appropriations to be passed within the first quarter of the fiscal year, the appropriation ordinance for the fiscal year commencing April 1, 1873, was passed by the city council Juné 30, 1873, which, as in this case, was the last day of the quarter. At the next regular meeting of the council, on July 7, 1873, (after the expiration of the first fiscal quarter,) a message was presented by the mayor vetoing certain items of the appropriation bill, and at that meeting the council passed most of the vetoed items over the veto. It was claimed that such items were illegal, in not having been passed within the first quarter of the fiscal year, but it was held that the appropriations were made during the first quarter of the fiscal year, within the meaning of the charter provision.

We think that decision must be held to govern the present case. It is true the cases differ in the respect that in the Fairfield case the council adhered to the items of appropriation as before passed, while in the present case the appropriation is not the same as originally passed, but changed by reducing it. We do not see that this makes any difference between the cases, in principle, It was considered, in the former case, that the subsequent action of the council after the first quarter of the fiscal year, amounted in law but to an adherence to appropriations previously made, — and for the sanie reason, we think, it' must be regarded, here, that the subsequent action of the council on June 7, 1884, reducing the appropriation in amount and repassing it as reduced, amounted to an adherence, pro tanto, to the appropriation which had been made on May 31, 1884, and is to be considered, within the meaning of the statute in this respect, as having been made within the first quarter of the fiscal year. The whole includes a part. The passage of the appropriation in its entirety within the time limited, included within it the passage of any part of the appropriation — the reduced portion — within that time. There was here no change of appropriation in object or increase in amount. The appropriation was the same, except that it was reduced in amount. Such reduced appropriation is not, we think, to be regarded as the further appropriation which the law forbids to be made after the expiration of the first quarter of the fiscal year, the language being: “No further appropriations shall be made at any other time within such fiscal year, unless, ” etc. The requirement that the annual appropriation bill shall be passed within the first quarter of the fiscal year, we regard as to some extent in the interest of the tax-payer, and that the reduction of an appropriation is rather for the tax-payer’s benefit, in its tendency to lessen the burden of taxation.

It is objected to the construction we adopt, that if it had been known at the time of the passage of the appropriation ordinance that this smaller amount only would be needed for the mayor’s and comptroller’s police, the amount in excess might have been granted to some other useful purpose. This is a consideration of minor importance, which dwindles before the power to be able to reduce excessive appropriations.

The further question is raised whether it is in the power of the mayor to veto a particular portion of an item containing several different things for which money is appropriated. The language of article 3, section 18, bearing upon this point, is: “Such veto may extend to any one or more items or appropriations 'contained in any ordinance making an appropriation, or to the entire ordinance,” etc. The item here was: “For salary of three policemen for mayor’s and comptroller’s offices, at $1000 each, $3000.” The mayor’s veto was not of a particular portion of this item, but of the entire item, so that the question raised is not one which properly arises upon this record, and we do not feel called upon to consider it.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Connor Carmody v. The Chicago and Alton Railroad Company et al.

      Filed at Springfield September 27, 1884.

    1. Limitation — of twenty years1 adverse possession. Where the party under whom a plaintiff in ejectment claimed land occupied by a railway company, made a conveyance of the same to a railway company, moved his fence, and gave it possession of the land more than twenty years before suit brought, and such company, together with the defendant corporation, as its successor, had occupied the same ever since under such release, it was held, that the plaintiff could not recover.
    2. Railroad — right to acquire more than one hundred feet. A charter giving a railroad company a right to acquire a strip of land not exceeding one hundred feet in width, has reference to right of way for a single or double track, and does not prohibit it from acquiring more land for depot grounds and side-tracks at stations.
    Appeal from the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.
    Mr. James E. Ward, for the appellant:
    Section 1 of the charter of the Jacksonville and Carrollton Eailroad Company only authorized the taking of a strip of land not exceeding one hundred feet in width. The release specifies its purpose to be “for depot ground and right of way, and for no other purpose.” Section 15 of the charter provides: “The width of said railroad is to be determined by the said corporation, within the limits prescribed by the first section of this act. ”
    Such grants to a corporation are to be strictly construed. Railroad Co. v. Dunbar, 20 Ill. 626; Webster v. People, 98 id. 347; Newhall v. Railroad Co. 14 id. 275.
    The limitation in the charter goes to its capacity to acquire more land than a strip one hundred feet wide. Catholic Congregation v. Germain, 104 Ill. 446; Penn v. Bornman, 102 id. 533; Fridley v. Bowen, 87 id. 151; United States Trust Co. v. Lee, 73 id. 143; Starkweather v. American Bible Society, 72 id. 50; Carroll v. East St. Louis, 67 id. 569.
    ' The paper from William E. Davis was not intended to pass any title. The right of way was personal to the company in gross, which could not be transferred or assigned to any other company or person. 2 Kent’s Com. 420; Koelle v. Knecht, 99 Ill. 401; Railroad Co. v. Koelle, 104 id. 460; Emerson v. Rudd, 19 id. 564.

      Messrs. Withers & Henshaw, for the appellees:
    Luella Y. Davis did not own the entire interest in this strip of land, and could not convey any greater estate than she had.
    Possession of land and a claim of right are sufficient to charge all persons of the occupant’s right, whether legal or equitable. Lumbard v. Abbey, 73 Ill. 177; Smith v. Heirs of Jackson, 76 id. 254; Doolittle v. Cook, 75 id. 354; Tunison v. Chamblin, 88 id. 388.
    A plaintiff in' ejectment must recover on the strength of his own title, and must have such an estate as to entitle him to the present possession of the land. Marshall v. Barr, 35 Ill. 106.
    An outstanding title in a third person, superior to that of the plaintiff, is sufficient to defeat a recovery in ejectment, although there be no connection of that title with defendant. Ballance v. Flood, 52 Ill. 49.
    The defendant may, though a trespasser, show title out of the plaintiff, in order to defeat the suit. Hulick v. Scovil, 4 Gilm. 159.
    A party need not have his land inclosed before he can be said to be in the actual possession thereof. Use of the land is sufficient, or actual occupancy of a part under a deed. The deed will enlarge the possession to all the land it includes, and possession for twenty years of a part constitutes title to the whole. Austin v. Rust, 73 Ill. 491; Fairman v. Beal, 14 id. 244.
    There is no limitation in the charter of the Jacksonville and Carrollton Bailroad Company as to donations to it for corporate purposes. There is nothing in the evidence to show that the whole of this ground is not absolutely necessary, either now or at some future time, for “depot and right of way purposes.”
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was commenced in ejectment by Connor Carmody, against the Chicago and Alton Bailroad Company and others, and as originally brought it was to recover a strip of land two hundred and fifty feet wide by twelve hundred and twenty-one feet, which the half section line running north and south through section 23 divided in equal parts, making a strip one hundred and twenty-five feet wide by twelve hundred and twenty-one feet long, on each side of the half’ section line. At the trial at the special December term, 1883, plaintiff dismissed his suit as to two of defendants, and by leave of court struck out of his declaration all that portion of the land lying west of the half section line, so the litigación now concerns that1 strip of land described in the declaration as lying east of such line. • Plaintiff, by his declaration, claimed the land in fee simple, and on the trial of the cause made oath that he claimed title through a common source with defendants, — that is, from William E. Davis, deceased. No question is made as to the ownership in Davis, in his lifetime, of the south-west quarter of the north-east quarter, and the north-west quarter of the south-east quarter, of section 23, in which the land in controversy is situated. Plaintiff claims the land by purchase from one of the heirs of .William B. Davis, and the defendant railroad company insists upon, as a defence, a deed of release from Davis to the Jacksonville and Carrollton Bailroad Company, made on the 7th day of January, 1857, and by actual possession for a period of more than twenty years.

The point made that plaintiff has shown no title in himself, seems to be well taken, and certainly not as to the extent of the title claimed. The title plaintiff insists upon, he acquired by deed from Luella V.- Davis, one of the heirs of William E. Davis, deceased, who was the original owner in fee of the land. At his death, which occurred on the 18th day of November, 1875, William E. Davis left only two heirs to his estate, namely, Eobert A. Davis and Luella Y. Davis, and as he died intestate, whatever estate he left, vested in his two surviving children. Eobert A. Davis afterwards married, but died without leaving any child or descendants of any child, and hence his interest in his father’s real estate went to his surviving widow, Annie Davis, and his sister, Luella Y. Davis. After the death of her husband, Annie Davis filed a petition for partition and dower in his estate which he had inherited from his deceased father. It will be seen the petition, among other lands, asked for dower in and partition of the south o part of the south-west quarter of the north-east quarter, containing 39T7g^. acres, and a part of the.north-west quarter of the south-east quarter, containing 38T4^0 acres, “being the whole of the last described tract, one ^^ acres conveyed to the railroad,” all in section 23. Evidently the word “except” was inadvertently omitted before the “one acres,” for in the decree which directs partition to be made it reads “except one and acres.” The Chicago and Alton Bail-road Company was then in the actual possession of the land now in dispute, but it was not made a party to the partition proceeding. It must have been omitted because the land it had in possession was not embraced in the petition for partition, and was not to be affected by the decree to be rendered. The decree expressly excludes all of that portion of the land in controversy situated in the north-west quarter of the southeast quarter, and it is quite evident that portion in the southwest quarter of the north-east quarter is also excluded, because when the commissioners made their report of the division of the estate, they say they have divided the 39T7^ acres situated in the south-west quarter of the north-east quarter. In that respect they followed the petition and decree. It is plain the “39t7-q9q- acres” was not all of the south-west quarter of the north-east quarter, and that portion divided was evidently all of the tract, except the part in the possession of the defendant railroad company which is now in dispute. It is apparent, then, the commissioners never intended to, and never did, in fact, assign the land comprised in the strip in dispute to Luella Y. Davis. A part of it was expressly excepted, and it is plain the remaining portion was not assigned. The fact plaintiff took a deed from Luella Y. Davis alone, makes it clear he expected only to get the portion of the estate of her father that had been assigned to her. Indeed, that is the only claim of title now insisted upon. But if his deed embraced the strip in dispute, it is equally clear it was not divided by the commissioners. Luella Y. Davis did not have the whole title to convey to plaintiff. Her brother’s widow’s interest still remained in it. There having been no division of that part of the estate between the heirs of the intestate, it would seem to follow that in no event could plaintiff recover all the land described in his declaration. But this point need not be further considered, as the decision may be placed on the broader ánd more substantial ground the deed of release made by William B. Davis in 1857, when he was in possession of the land, is 'a bar to any recovery by his heirs, or any one claiming under or through them. The proof is, Davis, at the time of making the deed of release, resided on the land, and after making the deed he moved his fence to make way for the railroad, and it has stood where he placed it ever since. The owner donated the land for depot ground and right of way, and gave possession to the railroad, which it and its successors have since retained, being a period of more than twenty years. Whether the railroad has permitted the lands to be used for “other purposes” than the same mentioned in the deed of release, is a question that plaintiff can not raise on this record.

There is nothing in the point made that section 1 of the charter of the railroad company confined its right to acquire land to a strip “not exceeding one hundred feet in width.” That section has reference to right of way for a single or double track, and certainly did not forbid the company to acquire more land for depot grounds and side-tracks at stations.

The instructions asked and given at the trial are quite numerous, and without considering them separately, it is sufficient to say no error has intervened in that respect to the prejudice of plaintiff. No other verdict than the one rendered would have been justified by the evidence, and it will not be necessary to inquire whether some slight error may not have occurred in the action of the court in giving and refusing instructions at the trial.

The judgment must be affirmed.

Judgment affirmed.


text:
    Simeon Stark v. Moses Ratcliff.

      Filed at Springfield September 27, 1884.

    1. Pleading and evidence — variance in description of land. In an action upon the covenants of warranty in a deed for land, the declaration described the land as “twelve hundred and eighty acres of land in Wichita, on the waters of Gilbert creek, and described as follows: beginning at a stake in the south-west corner of survey No. 1, made for the B. B. B. & C. B. B. Co., and 950 vers east from the north-west corner of a survey made in the name of L. Well's, ” etc., giving the metes and bounds. The deed gave the same description, except after the words “ Gilbert creek, ” are the following additional words: “Patented to W. W. Purinton on the 7th day of November, 1873 — Patent No. 404, volume No. 8:” Held, that these words afforded no ground for excluding the deed as for a variance.
    2. Pleading — particularity of description required. It is not required by the rules of good pleading that the pleader shall, in every case, when describing an instrument or object, specify all the means by which it may be properly identified. In such case it will suffice if the marks or means of identification specified distinguish such instrument or object with reasonable certainty.
    3. Same — covenant for breach of warranty — description of the land. In an action for the breach of the covenants in a warranty deed, it is a matter of no consequence whether the land to which the covenants relate is as fully described as it might be, or even as in the defendant’s deed, provided the declaration shows, with reasonable certainty, it is the same land to which the covenants relate.
    4. Jurisdiction — when defendant must plead — waiver. If a local action is brought against one in the wrong county, and the court in which the action is brought has a general jurisdiction in that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity in the court in which the action is brought, and failing to do so he can not question collaterally the validity of the judgment which may be rendered in that suit.
    5. The constitution of Texas expressly gives the District Court of that State jurisdiction in all suits for the trial of title to land, but there is a statute of that State requiring suits for the recovery of land to be brought in the county where the land lies. An action of ejectment for land in such State was brought in the District Court, but not in the county where'the land was situate, and no objection being made to the jurisdiction, that court rendered judgment for the plaintiff: Held, that as that court had a general jurisdiction over the subject matter, its judgment could not be treated as void in a collateral action in this State, and that such judgment was admissible in evidence to show an eviction of the defendant in ejectment.
    6. Foreign judgment — validity tested by laws of State where it is rendered. In determining the validity, force and effect of a judgment of a sister State, our courts' must look to the laws of such other State, and be governed by the construction its courts have given the laws of such State.
    Appeal from the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. James A. Eads, and Messrs. Sellar & Dole, for the appellant:
    In Texas the action of ejectment or trespass to try title is local. (Rev. Stat: of Texas, p. 193, art. 1198, par. 13.) The action is also local at common law. 1 Chitty’s Pleading, 268; 1 Tidd’s Practice, 427, 428.
    The circuit court of one county can not try title to land in another county. Railroad Co. v. Huff, 19 Ind. 444.

      The record must show the suit was commenced in the county where the land is situated. Minkhart v. Hanklin, 19 Ill. 47.
    The record shows that this suit was originally commenced in Cooke county, and that this was not the proper county for jurisdiction of a suit concerning land in Wichita county. The record of a judgment is only prima facie evidence of jurisdiction, and that presumption may be rebutted either by evidence within or outside of the record. 2 Am. Leading Cases, 796-809; 4 Wait’s Actions and Defences, 189-193; Kerr v. Kerr, 41 N. Y. 272.
    If the record shows want of jurisdiction of the subject matter, that is conclusive. Clark v. Thompson, 47 Ill. 27; Baker v. Champlin, 12 Iowa, 204; 4 Wait’s Actions and Defences, 195, 196.
    Consent may confer jurisdiction of the person, but can not-confer jurisdiction of the subject matter, nor can the parties waive the objection of want of jurisdiction of the subject matter. Freeman on Judgments, secs. 116-120; Lehigh v. Mason, 1 Scam. 249; Kimball v. Walker, 30 Ill. 497; Bond v. Thompson, 39 id. 567; 7 Wait’s Actions and Defences, 192, 193; Beach v. Nixon, 9 N. Y. 37.
    Even a judgment by confession is void if the court had no jurisdiction of the subject matter. Freeman on Judgments, sec. 547.
    A void judgment is a nullity. Neither the parties nor third persons are affected by it. No right flows from it, and it may be questioned in any court at any time. Campbell v. McCown, 41 Ill. 49; People v. Sturtevant, 9 N. Y. 266; Freeman on Judgments, secs. 116-120.
    When the objection is on account of a want of jurisdiction of the subject matter, it can be raised at any time. 1 Wait’s Actions and Defences, 51; 6 id. 394; 7 id. 181-183; Conger v. Railroad Co. 17 Wis. 477; Webb v. Goddard, 46 Maine, 505; Gould’s Pleading, chap. 5, secs. 22-25.

      Mr. W. S. Everhart, and Messrs. Golden & Wilkin, for the appellee:
    This is not a suit upon the record of a foreign judgment, but the transcript is introduced as evidence to show an eviction, and the only question is, w'hether the District Court had jurisdiction. Article 5, section 8, of the constitution of Texas, provides: “The District Court shall have original jurisdiction * * * of all suits for trial of title to land. ’’
    In a collateral proceeding, likewise, it is immaterial how the Texas court acquired jurisdiction, — however erroneously,— so it had the power and authority to hear and determine the matter submitted tó it.
    A plea to the jurisdiction of the court in an action of trespass to try title, on the ground that the land lies without the limits of the county, comes too late after a plea to the merits. Ryan v. Jackson, 11 Texas, 391; Morris v. Runnells, 12 id. 177. See, also, Stark et ux. v. Burr, 56 id. 130.
    It seems that in an action on a covenant of seizin, the burden of proof lies upon the defendant in the first instance to show paramount title in himself. Baker v. Hunt, 40 Ill. 264.
    There was no variance. The description given in the declaration was sufficient, and the other words in the deed may be rejected as surplusage.' The description given is of land in a perfect square.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 11th day of January, 1878, Simeon Stark, the ap-' pellant, for the expressed consideration of $5760, conveyed, by general warranty deed, to Moses Ratcliff, the appellee, twelve hundred acres of land in Wichita county, Texas. On the 15th of October, 1881, one E. A. Gerard brought an action in the District Court of Cooke county, Texas, against Ratcliff and others, for the recovery of .this land. Under the provisions of the local law of Texas, Stark was notified, as warrantor of the title, to appear and defend, and upon satisfactory proof of the service of such notice the court entered a formal order in the cause making him a party defendant to the suit. Stark, however, failed to appear, and such proceedings were had in the cause that Gerard recovered possession of the premises, and Ratcliff was evicted therefrom. The latter thereupon brought the present action against Stark to recover damages for an alleged breach of the covenants in his deed to Ratcliff. There was a trial of the cause upon the merits in the circuit "court of Edgar county, resulting in a judgment for plaintiff for $5940, which was subsequently reduced by a remittitur to $5555.88, and the judgment, thus reduced, was affirmed by the-Appellate Court for the Third District. By the present appeal we are asked to review the judgment of the Appellate Court.

It is claimed by appellant the circuit court made a number of erroneous rulings on the trial with respect to the admission of evidence, for which the Appellate Court should have reversed the judgment. Whether this claim is well founded or not presents the only question for determination.

The land in question is described in the declaration as follows: “Twelve hundred and eighty acres (3 280) of land in Wichita, on the waters of Gilbert creek, and described as follows: beginning at a stake in the south-west corner of survey No. 1, made for the B; B. B. & G. R. R. Co., and 950 vers east from the north-west corner of a survey made in the name of L. Wells, thence west 2688 varas to a rock marked X, thence north 2688 varas to a rock marked — , thence east 2688 varas to a rock marked X, thence south to the beginning, in the county of Wichita, and State of Texas. ” Upon offering appellant’s deed in evidence, it was objected the land described in the deed is not the same that is mentioned and set forth in the declaration, — or, in other words, that there is a variance between the allegations and proofs; but the court overruled the objection and admitted the deed in evidence, and this is assigned for‘error. Upon comparing the two descriptions of the land it will be.found the only ground for this objection is, that the description in the deed contains, immediately after the words “Gilbert creek,” the additional words': “Patented to W. W. Purinton on the 7th day of November, 187S — Patent No. 404, volume No. 8. ” These additional words clearly afforded no ground for excluding the deed. The question before the court was whether the deed offered in evidence tended to prove the issue. The declaration gives a good description of the land, and so far as it goes it is in exact accord with the description contained in the deed, and the evidence offered therefore clearly supported the declaration. - The additional descriptive words in the deed are not inconsistent, or incompatible with the description contained in the declaration, and we are aware of .no principle which requires a pleading, in every case when describing an instrument or object, to specify all the means by which it might properly be identified. In such case the requirements of good pleading will be fully met if the marks or means of identification specified distinguish such instrument or object with reasonable certainty. That was done here. The gist of the action in this case is the breach of the covenants in the deed. Whether the land to which the covenants relate is as fully described in the declaration as it might have been, or even was in appellant’s deed, is a matter of no consequence, provided the declaration shows, with reasonable certainty, it is the same land to which the covenants relate, — and, as just stated, we think it does this.

The point is also made that the court erred in admitting in evidence, over the objections of appellant, the record of the suit by Gerard, against Ratcliff, in the District Court of Texas, for the recovery of this land. This objection is also based in part upon an alleged variance between the descrip^ tion of the land in that proceeding and the one given of it in this. The supposed variance is of the'same character of the one we have just been considering, and what we have said with respect to that is equally applicable to this, so that further notice of this branch of the objection need not be taken.

The admission of the record, however, is resisted mainly on the ground the District Court had no jurisdiction of the subject matter of the suit, and hence it is claimed the whole proceeding is a nullity, and the record of it is consequently inadmissible as an instrument of evidence for the purpose offered. By an express provision of the constitution of Texas, the District Court is given original jurisdiction in all suits for the trial of title to land. (Art. 5, sec. 8.) The suit in question was one of that character, and it consequently follows the court did have a general jurisdiction over the subject matter of the suit, and the judgment rendered therein can not therefore be treated as absolutely void. It is true, while this general jurisdiction existed under the constitution, there was a statute requiring suits for the recovery-of land to be brought in the county where the land lay; yet this was matter of defence, merely. We understand the rule to be, that if a local action is brought against one in the wrong county, and the court in which the action is brought has a general jurisdiction in that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity, in the court where the action is brought. He will not be permitted, after having remained silent and permitted judgment to go against him, to call in question its validity for the first time in a mere collateral proceeding, as is sought to be done here. The rule as here stated we understand to be fully recognized by the courts of Texas, to whose laws we must look in determining the validity of this judgment. Ryan v. Jackson, 11 Texas, 391; Morris v. Runnells, 12 id. 177; Stark et ux. v. Burr et al. 56 id. 130.

Perceiving no substantial error of law in the record, and the facts having been settled conclusively against the appellant, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Soholfibld

text:
    Phillip Stumpf et al. v. Charles Osterhage

      Filed at Mt. Vernon September 27, 1884.

    1. Condition precedent — necessity of showing performance. A release of a person’s interest in land inherited, to a certain other person, to become effective upon a condition precedent to be performed by the releasee, without proof of the performance of the condition, is inadmissible in evidence to show a transfer of the releasor’s title, in an action of ejectment.
    2. Description of land in will or deed — of the particularity required. In ejectment, the will of a person not shown to have had any title to the land in dispute, devising all his real estate generally, without any description, to his sons, equally, is not admissible in evidence to show title, or for color of title, under the Limitation law of 1839. Neither are deeds from persons in whom no title is shown, which show- no intention to convey the land in dispute.
    3. Limitation — color of title. A deed made by an administratrix of an estate, though ineffectual to convey title for want of any in the intestate, which properly describes the land in dispute, and purports to convey the same, is admissible in evidence as color of title, under the Limitation law of 1839, and in the absence of evidence of bad faith it will be presumed it was made and accepted in good faith.
    4. Same — receipts as evidence of payment of taxes. In ejectment, to recover fifty acres in a survey of four hundred and thirty-two acres, in which the seven years’ Limitation law is set up as a defence, tax receipts for the taxes on a part of the survey, without showing what part, are not sufficient of themselves, unexplained, to prove the payment of taxes; but when coupled with the tax books, showing what land was assessed to the person so paying, and his testimony showing his payment of all the taxes, they are sufficient.
    5. Same — parol evidence as to payment of taxes. It is competent to prove by parol on what land taxes have been in fact paid, and thus supplement or contradict the evidence of the written receipts for taxes.
    6. Same — evidence to disprove payment of taxes. To rebut the proof of the payment of taxes for seven successive years upon a particular part of a tract of over four hundred acres, which is described, the court allowed the other party to prove payment of taxes about the same time on one hundred and twenty acres of the whole tract, and admitted in evidence, over objection, the record of a judgment for taxes against one hundred and twenty acres of land assessed as the property of another person: Held, that the court erred in admitting the evidence, as it did not show it was the same land.

      7. Evidence — parol partition — admissions of parties ininterest. Where a parol partition óf a tract of land is relied on as having been made many years ago, and the boundary between the several parts is brought into dispute, the declarations of one of the parties to the division, while still an owner of his part, as to the boundary line of his claim, being in disparagement of his title, is competent evidence. So is evidence of the family reputation as to deaths and residences of the members of such family.
    Writ of Error to the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    This was an action of ejectment, brought by Charles Osterhage, against John Stumpf. A trial was had at the September term, 1873, and a verdict returned for the defendant. A new trial was granted, and the cause again tried at the March term, 1874, resulting in a verdict for the plaintiff, and a new trial granted. At the September term, 1875, a trial was had, and a verdict found for the plaintiff, and a new trial granted. At the September term, 1876, another trial was had, resulting in a verdict for the plaintiff, on which judgment was rendered at the special December term, 1876. This judgment was reversed by this court, and the cause remanded. The death of the defendant was suggested, and his heirs made parties, and the declaration amended. At the March term, 1882, the cause was again tried, resulting in a verdict and judgment for the plaintiff, to reverse which this writ of error is brought.
    It was agreed that the land in suit is part of survey 410, claim 672, and that both parties claim title through Leonard Harness, who left the whole claim, undivided, to his three daughters, — Kate, Sally and Mary. The tract contained four hundred and thirty-two acres. On the trial, plaintiff proved, by Anna Clover, the marriage and death of Kate Harness, and other matters relating to the family, such as heirship, etc., and the division and subsequent occupancy of the land.
    The defendants offered in evidence a certified copy of a deed from Sally Harness, in the words following s

      “Know all men by these presents, that I, Sally Harness, one of the heirs of Leonard Harness, deceased, have, for and in* consideration of a bond for a deed this day made by Jacob Clover and William Clover, to me, of one hundred and thirty acres, of good, first-rate land, have relinquished all other claim to' the lands of the said deceased as an heir, and by these presents, if the said bond is complied with on the part of the signers, to-wit, Jacob Clover and William Clover, I will have no other demand on the land, as aforementioned.
    “In testimony whereof I have hereunto set my hand and seal this 8th day of February; 1810.
    Sally Harness. [Seal.] ”
    This"instrument was acknowledged before' a justice of the peace. On objection by the plaintiff, the court' refused to admit it in evidence.
    Defendant next offered in evidence a deed reading as follows :
    “Know all men by these presents, that-we, William Clover, in my own right, and as guardian of Joseph Harness and Polly Harness, do release and forever quitclaim to that tract and messuage of land in the county of St. Clair, Illinois territory, on which Jacob Clover now lives, to the said Jacob Clover, in consideration of $40Q to us in hand paid before the delivery of this deed, which said tract contains four hundred acres, more or less.
    “Signed, sealed and delivered this 28th day of December, 1811.
    H,'
    William x Clover, [Seal.]
    mark.
    his
    William x Clover, [Seal.]
    mark.
    Guardian of Polly and Joseph Harness.
    :This was also acknowledged before a justice of the peace. The, court, on objection being made, refused to receive the same.

      The defendant offered in evidence a copy of the will of Jacob Clover, containing this devise, only:
    “I do by these presents give, demise and bequeath unto my -wife, Catharine, all and singular my estate, real and personal, money, goods, chattels, rights and credits, of whatever nature or kind soever that unto me belongeth, for and during her lifetime, the same to be at her disposal and use, so long as she shall live. Then, after the decease of my wife, Catharine, it is my will that all the children of mine have my personal estate divided in equal portions among them. But it is my will that my real estate go and be divided to all my sons, only, in equal portions amongst them, for it is my will that my daughters have no share in my lands, but that it be divided, as above stated, in equal portions amongst them, all my sons, as they may attain the age of -twenty-one years of age. I mean, and I wish it fully understood, that it is my will and desire that my sons have my lands all divided in equal portions amongst them as they come to the age of twenty-one years, notwithstanding they may come to the . . . of twenty-one before the decease of my wife, Catharine, — she, my wife, still to have the use of the portions of land of my younger sons until they arrive at the age of twenty-one, aforesaid. o
    “I do now publish this my testament and last will, hereby revoking and amending all others. In testimony whereof I have hereunto set my hand and seal this sixth day of March, in the year of our Lord 1821.”
    The other material facts are stated in the opinion of the court.
    Messrs. Slate, Talbott & Michan, for the plaintiffs in error.
    Mr. Joseph W. Bickert, and Mr. Spencer Tompkins, for the defendant in error.
   Mr. Chief Justice Soholfibld

delivered the opinion of the Court:

This is ejectment for a certain tract of land, part of a larger tract, described as claim No. 572, survey No. 410, in Monroe county. Both parties concede that the claim belonged to Leonard Harness in his lifetime, and that upon his death it descended to his three daughters, — Kate, Sally and Mary. There is proof tending to show that in 1810 they made between themselves a parol partition of the claim, whereby they allotted and set apart the northern part to Kate, the middle part to Sally, and the southern part to Mary, and that each took actual and immediate possession of the part so allotted and set apart to her. A small creek runs in a westerly course through the claim, entering its eastern boundary twenty-eight chains and four links south of the north-east corner, and passing out at a point on its western boundary ten chains and eighteen links south of the north-west corner. After entering the claim on the eastern boundary, the creek bears north of west for a short distance, then turns sharply to the south, and runs a little west of south for a short distance, then again turns and runs nearly west for a short distance, and then again turns and meanders in a northwesterly direction to the west boundary line. The plaintiff below, and defendant in error here, introduced evidence upon the trial tending to prove that Sally married John Sheehan, and by him had a daughter, Mary, after which she and her said husband died intestate; that Mary Sheehan married Bichard Walton, by whom she had a son, W. B. Walton, after which she and her said husband died intestate; that W. B. Walton conveyed the part of said claim so set apart to Sally Harness, to Wilson & Cahow, by deed dated March 9, 1835; that Wilson & Cahow conveyed the same part to John D. Hagenkamp, by deed dated December 30, 1854, and Hagenkamp conveyed the same part to Charles Osterhage, the defendant in error, by deed dated February 22, 1871. The contention of the defendant in error is, that he is seized in fee of the part so allotted and set apart to Sally Harness', and that the north line of that part extends to the point on the west line of the claim, where the creek crosses it, and 'extends thence up the line of the creek in a southeasterly direction, following its meanderings, until the point is reached where the line of the creek is farthest south, and thence due east to the east line of said claim. The contention of plaintiff in error is, that there never was any legal partition of said claim, parol or otherwise ; that he is seized in fee of the north 151 acres of said tract, including 15 acres in the south-east corner of the north 166 acres of the claim, and that if not seized in fee thereof, he has, at least, color of title thereto, made in good faith, and has been in the continuous, actual possession 'thereof, and paid all taxes legally assessed thereon, for seven successive years. The tract in controversy, it will thus be seen, is so much of the north 166 acres of the claim as lies south of the creek and the line running due east from the southernmost point of its line to the east line of the claim, and includes, according to the plat filed with the record, acres.

We see no objection to the ruling of the court below in excluding the records of the deeds by Sally Harness to Jacob Clover and William Clover; by William Clover, in his own right, and as guardian of Polly and Joseph Harness, to Jacob Clover; the will of Jacob Clover; the deed' by Elias Clover and wife to John Clover, and the index record of a deed of John Clover to Joseph Lawson. The deed by Sally Harness assumes to convey nothing to anybody, — is but a release, to become effective upon a condition precedent, and there was no offer of any proof of the performance of such condition. There being no sufficient evidence of any conveyance to Jacob Clover of the interest of Sally Harness, and his will not professing to dispose of this property specifically, it was properly excluded. And the same may be said of the other deeds excluded. They do not profess to convey the property in dispute, and no title being shown in the grantees, there can be no presumption of even an intention to convey this property by the use of the general language employed in the deeds.

The ruling, also, in admitting evidence of the declarations of Kate Clover, as to wrhere was the southern line of her claim, we think unobjectionable. They were made when she was still the owner of the property, and were in disparagement of her title. So, also, the evidence of the family reputation as to deaths and residences, etc., was properly admitted.

But we are of opinion that the court erred in excluding evidence of the deed of Ann M. Agnew, administratrix of the estate of Joseph Lawson, deceased, to William H. Patterson. Although ineffective as a conveyance of title, it was unquestionably color of title. (Chickering v. Failes, 26 Ill. 507; Hardin v. Crate, 60 id. 215.) It includes the land in controversy, and there is no evidence that it was made in bad faith, and in the absence of this it is to be presumed that it was made in good faith. McCagg v. Heacock, 34 Ill. 476; Brooks v. Bruyn, 35 id. 392; Morrison v. Norman, 47 id. 477.

There were a number of tax receipts, showing payments of taxes on land in claim No. 572, survey No. 410, by John Stumpf, for the years'1861 to 1871, inclusive. These receipts, in and of themselves, alone, are defective, in that they do not show in what part Of the claim is the land upon which the taxes are paid; and the receipt for the payment of the taxes in 1865 was defective in the description of the property, and it was also defective, as was likewise that for the year 1866, and, it may be, that for one other year, in showing a payment only on some 71 acres, instead of 155 acres. The tax books, however, were admitted, as we think, properly, to show what land was assessed against Stumpf for the year 1865, and there was parol evidence showing on what land the taxes were,- in fact, paid. We have held it is competent to prove by parol on what land taxes are, in fact, paid, and thus to supplement or contradict the evidence of the written receipts for taxes. Rawson v. Fox, 65 Ill. 204; Milliken v. Marlin, 66 id. 13.

John Stumpf had died after the first and before the last trial in this case. He testified as a witness upon the first trial, and secondary evidence was given, upon the last trial, of what he then testified. A. M. Schlierholz testified that he was a reporter on the first trial, and that he heard John Stumpf then testify, and recollected his testimony; that Stumpf then testified: “I know the land, — i. e., the land in controversy; “bought it from George Schuennann; took possession of it in 1860; paid taxes, since then, on 151 acres, the Hobbs piece excluded; took possession of land in dispute in 1861, cut wood; cleared the land,.and built a house. * * * I paid the taxes for the 151 acres; the land was never sold for the taxes. * * * I paid taxes on the land since I bought it. ” Then Phillip Stumpf testified, after stating that he knew the land in controversy, and that his father bought it in 1860: “My father and brother and I have lived there since A. D. 1862. ” This, we think, was sufficient evidence of possession and pa}rment of taxes, unrebutted. But the court, for the purpose of rebutting this evidence, admitted evidence, — over the objection of plaintiffs in error, — of the payment of taxes, during about the same time, on 120 acres of land in claim 572, survey 410, by John Hagenkamp, and also evidence of a judgment against 120 acres of land in the same claim and survey, assessed as the property of John Hagenkamp, for the delinquent taxes of the year 1866. We have been unable to find any evidence that identifies this 120 acres with the land in dispute, and since there are more than 400 acres in claim 572, survey0410, it does not follow that this 120 acres must have been the land in controversy. We are therefore of opinion that the court, in admitting this evidence over the objection of the plaintiffs in error, also erred.

For the errors indicated, the judgment below must be reversed and the cause remanded.

Jvdgmenb