text:
    Solomon Fisher et al. v. Hugh Bennehoff.

      Filed at Ottawa September 26, 1887.

      1. Description—boundaries — the rule for ascertaining boundary lines—monuments, courses and distances, etc. The true boundary lines of a tract of land conveyed are where they are actually run, and when such lines, or any of them, are marked by7 monuments placed by the surveyor or the parties, at the time, to indicate where they may be found, such monuments will afford the most satisfactory evidence of the place where the true lines were located. The original stakes or posts must control the calls in the deed for courses and distances.
    2. The rule of applying descriptions of boundaries is, first, to natural objects; second, to artificial marks; and lastly, to courses and distances given. A government corner, when known, may be referred to as a monument, in the description of land in a deed; but if it is mistaken, and a party lays off lots on his own ground which are marked by stakes or other visible monuments, and conveys with reference to such boundaries, the grantee will take the same according to the lines as actually7 run and established, although the grantor may have supposed that one of the lines corresponded with a line in the government survey.
    3. Same—division lines fixed by parol agreement. The owners of adjoining lands may, by a parol agreement, when fairly and understandingly entered into, settle and permanently adopt and establish a boundary line between their lands, which, when followed, by possession according to the line established, will be binding upon tkém and their privies, the same as if made by deed. It is the policy of the law to give stability to such agreements, and thus prevent litigation.
    4. The adoption of a division line between the owners of adjoining land may be implied from their acts and declarations, and acquiescence in respect thereto; and after the lapse of thirty7-five years of uninterrupted acquiescence in such a boundary line, and the frequent recognition of it as the true division line, the parties and their privies were held to be estopped from asserting that it was not the true line.
    5. Limitations—color of title, what constitutes—good faith presumed. A commissioner’s deed for land sold under a decree in partition, describing the land by metes and bounds, is color of title, under the Limitation law; and in the absence of any evidence to the contrary, the good faith of the holder will be presumed.

      6. Same—color of tille and good faith, as questions of law and fact. Whether a deed constitutes color of title under the Limitation law, is a question of law, for the court; but whether it was acquired in good faith, is a question of fact, for the jury to determine.
    7. Same—twenty years' possession as a bar. Twenty years’ adverse possession of land, accompanied by payment of taxes, under a continuous assertion of ownership hostile to all others, will constitute a bar to a right of entry by any one not within the saving clause of the statute, claiming to have paramount title, whether the claim of the party in possession is rightful or not, or even under a muniment of title.
    8. Possession of land—how established. Actual possession of land may he had without having the same enclosed. When a party has color of title, possession may be shown by the constant and uninterrupted use of the same for a series of years; and of timber land, by taking therefrom of wood, for fuel, fencing, and other purposes; or it may be shown by an actual occupancy of a portion of the tract for which he may have a deed. When the taking of timber from a tract held under a deed is relied on, it is not necessary that the timber should be taken oif any particular part of the land.
    9. Same—possession of part as extending to the whole. Where a person enters upon a tract of land without color of title, or an instrument defining its boundaries, his possession will not extend beyond what he has enclosed or actually occupies; but when he has a deed for the same, actual possession of . a part will, in law, constitute possession of the whole not in the adverse pos- • session of another.
    10. So twenty years’ possession of a tract of land under a deed, or adversely, as to any part of the land within the enclosure or an adopted division line, even though not on the true line, is a bar to an action of ejectment by • one claiming a right of entry.
    11. Same—evidence—proof of possession. A witness may testify to the fact that a party was or is in the possession of a tract of land, without stating the facts which go to show possession; and the other party, on cross-examination, may call for the facts upon which the witness bases his testimony, or .as to the facts constituting possession.
    12. Instruction—upon a question of fact. Where there is no evidence tending to impeach the good faith of the holder of color of title in an action of ejectment, an instruction of the court that it was held in good faith, though ■erroneous, is no ground for a reversal, as it could work no prejudice. But if there had been any evidence tending to show bad faith, it would have required •a reversal of the judgment, if not warranted on some other ground.
    Appeal from the Circuit Court of Stephenson county; the Hon. John Y. Eustace, Judge, presiding.

      This was an action of ejectment, brought on the 3d day of December, 1884, in the circuit court of Stephenson county, by Hugh Bennehoff, against Solomon Fisher and William Fisher, to recover a strip of land described in the declaration as commencing at the point where the east and west fence, lately built by the defendant Solomon Fisher, intersects the east side of the public highway running north and south by the plaintiff’s dwelling house, and 13 rods 9 feet south-easterly from the south-east corner of said house, in the town of Bock Grove, in Stephenson county; thence easterly, following the line of said fence, 121 rods; thence south 21 links ,- thence west 121 rods to the east side of said highway, and thence north to the place of beginning. A trial was had, resulting in a verdict and judgment for the plaintiff, from' which this appeal is prosecuted.
    In 1845, Solomon Fisher, the defendant, was the owner of all of the north-west quarter of section 25, in township 29 north, range 8, east of the fourth principal meridian, except the north-east quarter thereof, which was held and occupied by Joseph Mean, under a certificate of purchase from the United States. Two public highways were laid out over the quarter-section, but ivhen established does not appear, and is not material. The first runs north and south about 36 rods east of the west line of the quarter, as appears from a plat, and the other runs from the first on a due east line, the centre of it being 21-^ rods or perches south of the north line of the quarter. The plaintiff’s residence is on the land west of the first named road, and a little north of the half quarter-section line running east and west. In 1845, Solomon Fisher and Joseph Mean employed the county surveyor to. run and establish the half quarter-section line between their respective lands, and such line was run not only between the north-east and south-east forties, but also between the west, forties, which Fisher also owned. This half quarter-section, line, (i. e., line dividing the quarter-section into halves, east and west,) seems to have been satisfactory to all parties, and it was marked and evidenced by blazing the trees along the same. Along that part of it over the west half of the quarter, there is a cherry tree, a thorn tree and an elm, marked as line trees, and on the line between Fisher and Mean other trees were in like manner marked, so as to plainly indicate the division line across the quarter-section.
    On June 5, 1846, Solomon Fisher and wife, by their warranty deed, sold and conveyed to one Sarah Shaffer, wife of Andrew Shaffer, the following described land: “Commencing at the north-west corner of section 25, town twenty-nine (29), range 8 east, 4th principal meridian; thence east along the section line, seventy-seven and seven-tenths (77^) perches; thence south eighty and seven-tenths (80A.) perches; thence west fifty-three and seven-tenths (53-7^-) perches to a post, bearing trees, pin oaks 12 inches diam., S. 21J, E. 98 1., and 14 inches diam., S. 66, E. 83 1.; thence south twenty-six and seven-tenths (26T7B.) perches to a post; thence west twenty-four (24) perches; thence north to the place of beginning, one hundred and seven and four-tenths (107^-) perches, containing forty-three and two-tenths (43r20-) acres.”
    On June 20,1846, Joseph Mean and wife, by their warranty deed of that date, conveyed to the said Sarah Shaffer the following other land, described as follows: “Beginning at a post 21t2b perches south of the north-east corner of the west half of the north-west quarter of section 25, township 29, range 8 E., 4th p. m.; thence south 59T77 perches to a post; thence east 17 perches to a post; thence north 59^- perches to a post; thence west 17 perches to the place of beginning, containing 6^^ acres, more or less. ”
    On July 12, 1847, Andrew Shaffer, and Sarah, his wife, conveyed to Daniel Bennehoff, the plaintiff’s father, the same lands conveyed to her by Fisher and Mean and others, described as follows: “Beginning at the north-west corner of section 25, in township twenty-nine (29), of range eight (8), east of the fourth principal meridian; thence east with section line GOAg- perches to the north-west corner of a certain tract of land conveyed by Andrew Shaffer and wife to James McCauley; thence south 21^ perches to a post; thence east. 34 perches to a post; thence south 59T76 perches to a post; thence west 70T70 perches to a post, bearing trees, pin oaks-12 inches diam., S. 21J deg., E. 98 Iks., and 14 inches diam., S. 66 deg., E. 83 Iks.; thence south 26t7q- perches to a post; thence west 90 perches to the south-east corner of a tract of land conveyed by said Shaffer and wife to John Wore; thence north 107r6g perches to a post on the north line of section. 26; thence east 66 perches to beginning corner. ”

    The plaintiff proved the death of Daniel Bennehoff in 1869, and introcTuced in evidence deeds from all the other heirs-at-law of the said Daniel Bennehoff to himself, conveying to the plaintiff the same lands described in the foregoing deed, all of said deeds bearing date before the commencement of the suit. The plaintiff then read in evidence a deed from John Wore to Pinkney Sehrock, dated May 20, 1847, conveying-land described as follows : “Beginning at a post 21-^- perches south of the north-east corner of the north-west quarter of' section 25, township 29, north of range 8, E., 4th p. m.;. thence south 29^0- perches to a post; thence east 9^ perches ■ to a post; thence south 29T8-g perches to a post; thence west 70^0 perches to a post; thence north 59-=¡7-a- perches to a post; thence east 60-5-g perches to the place of beginning, contain- ■ ing 24-j-8i)8g acres, being a part of the north-east quarter of the north-west quarter, and a part of the north-west quarter of the north-east quarter of section 25, township 29, range 8, E., 4th p. m., for which Joseph Mean holds a certificate of' purchase from the United States land office, at Dixon, Illinois, No. 18,113, dated October 25, 1844, a part by deed of JamesMcCauley, bearing date 20th day of June, 1846, being the-same tract of land which Joseph Mean, and Elizabeth, his-wife, by deed dated the 20th day of June, 1846, granted and conveyed to the said John Wore, his heirs and assigns.”
    The plaintiff also introduced in evidence a deed from William Wagonhaul, a commissioner, to the plaintiff, bearing date June 20, 1868, and purporting to convey the land described in the preceding deed. The deed recites the pendency of a suit in the circuit court of Stephenson county, for the partition of certain lands between the heirs of the said Pinkney Schrock, deceased, the appointment of the commissioner, with power to sell and convey the land, made at the April term, 1868, of said court, and the sale to the plaintiff of the land described as in the preceding deed, and other land, for the sum of $4180.20, and purports to convey the lands to the plaintiff. The plaintiff proved that he immediately took possession of the lands in section 25, therein described, and had occupied the same ever since, until the entry of the defendants upon the strip in controversy, and had paid all taxes upon the same since his deed from the commissioner.
    There was evidence showing that Daniel Bennehoff had possession of the land he bought of Mrs. Shaffer, from 1847 until his death, up to the blazed line, and that Solomon Fisher since that time repeatedly acknowledged and pointed out that line as the true one. In 1864 he had Adam Erape build for him 35 or 40 rods of fence on the line of the blazed trees, and in 1869 appellee and Solomon Fisher, by mutual agreement, joined and completed the division fence on the line of such trees. The evidence also showed that Pinkney Schrock took possession of the land described in the deed of John Wore to him, in 1847, up to the line of the marked and blazed trees. On April 25, 1882, the defendants took forcible possession of the strip in dispute,—it then being in the actual enclosure of the plaintiff,—and built a board and wire fence north of the fence then standing as the division fence, whereupon this suit was brought.

      Mr. J. A. Crain, for the appellant:
    The court erred in permitting improper evidence to go to the jury, on the part of the plaintiff, in not confining the proof of the acts of possession to the strip of land in dispute. The doctrine of adverse possession is to be taken strictly, and is not to be made out by inference, but by clear and positive proof. McClellan v. Kellogg, 17 Ill. 504; Jackson v. Brewer, 48 id. 208.
    The presumption is against adverse possession, and the claimant must prove it clearly. Russell v. Davis, 38 Conn. 562; Parker v. Banks, 79 N. C. 480; Hood v. Hood, 2 Grant, 229; Lynde v. Williams, 68 Mo. 360; Alexander v. Polk, 39 Mass. 737; Sharp v. Dangney, 39 Cal. 505.
    The court erred in instructing the jury that the deed from Wagonhaul to Hugh Bennehoff was color of title made in good faith, as the good faith was a question of fact.
    Mr. U. D. Meacham, for the appellee:
    The defendants entered and took forcible possession. Appellee was lawfully entitled to continue m possession until dispossessed by due process of law. Bert v. Allen, 30 Ill. 34; Reeder v. Purdy, 41 id. 279; Farmell v. Warren, 51 id. 47; Doty v. Burdick, 83 id. 473.
    Appellee’s possession was pruna facie evidence of title in him. 2 Greenleaf on Evidence, sec. 331; 1 id. sec. 109; Bayer v. Hobbs, 67 Ill. 597.
    The agreement as to the division line estopped appellants from entering upon and claiming the strip of land. Cutler v. Callison, 72 Ill. 113; Hubbard v. Stearns, 86 id. 35; Bauer v. Gottmanhausen, 65 id. 500; Thomas v. Sayles, 63 id. 363; Kerr v. Hitt, 75 id. 53.
    The person having the actual possession of land is deemed to be the true owner until the contrary is shown. McLean v. Farden, 61 Ill. 107; Davis v. Easly, 13 Ill. 192.
    No point was made as to the good faith in which the color of title was acquired, in the court below. That was conceded.
   Mr. Justice Shore

delivered the opinion of the Court:

This action grows out of a dispute as to the half quarter-section line east and west through a portion of the north-west quarter of section 25, in township 29 north, range 8, east of the fourth principal meridian, in Stephenson county. It is ■contended by appellants that it bounds the strip of land in •controversy on the north, and by appellee, that it bounds the strip on the south. Appellants claim that from a survey made in 1881, the north line of section 25 was found to be Safest further north than it was supposed to be in 1846, and that the call of 80^ perches in the deed to Mrs. Shaffer, ■should commence that distance further north, and terminates, not on the blazed line, but at the north line of the disputed strip.

The evidence shows that the first post referred to in Solomon Fisher’s deed to Mrs. Shaffer, is in a direct line with the •cherry tree and other trees marked or blazed as the line trees, so that the deed in fact embraced the strip in dispute on the west half of the quarter. The true boundary lines of the tract •conveyed are where they were actually run, and when such lines, or any of them, are actually marked by monuments placed by the surveyor or the parties, at the time, to indicate where they may be found, such monuments will afford the most satisfactory evidence of the place were the true lines were located. The original stakes or posts must control the -call for courses and distances. (Bauer v. Gottmanhausen, 65 Ill. 499; McClintock v. Rogers, 11 id. 296; Miller v. Beeler, 25 id. 163.) When a deed describes by admeasurements, and •at the same time by known and visible monuments, the latier will govern. (Howe v. Bass, 2 Mass. 380; Pernam v. Wead, 6 id. 131; Bosworth v. Sturlevant, 2 Ark. 392; Dawes v. Prentice, 16 Pick. 435; Frost v. Spaulding, 19 id. 445; Kamphouse v. Gaffner, 73 Ill. 453.) The rule of applying •description of boundaries is, first, to natural objects; second, to artificial marks, and lastly to courses and distances given. Botton v. Lann, 16 Texas, 96; Fullwood v. Graham, 1 Rich. 497; Ferris v. Coover, 10 Cal. 629; Beahan v. Stapleton, 13 Gray, 437.

A government corner, when known, may be referred to as a monument, in the description of land in a deed; but if it is mistaken, and a party lays off lots on his own ground, which are marked by stakes or other visible monuments, and conveys with reference to such boundaries, the grantee will take the same according to the lines as actually run and established, although the grantor may have supposed that one of the lines corresponded with a line in the government survey. In this case the first line run by the surveyor to the south, extended to the blazed line, and the next line, being to the west, went to the post which was witnessed by two pin oak trees, and ■was on the blazed line. The fact that Fisher was mistaken in the north line of the quarter, as established by the government, if he was mistaken, affords no reason for changing the boundaries established by him in making his conveyance to Shaffer. A grantee has a right to the land as located by the grantor. It is by no means certain that the true north boundary of the quarter is further north than it was at first supposed to be. Indeed, a careful consideration of the evidence fails to convince us that the contention of appellee is sustained. While we do not, in the view we take of 'the case, deem it necessary to discuss the evidence relating to that branch of the case, it may be remarked that it is shown, clearly, by evidence introduced by appellants, that the government monuments were still visible in 1847,—two years after the survey made between Mean and Fisher in 1845. It also-appears that Fisher was present during the survey of 1845, and assisted in blazing the line then established as being the boundary between the north and south forties of the quarter. Fisher then resided on a portion of this land. So did Mean, and there is but little doubt that the surveyor, Fisher, and Mean, must have known where these government monuments were. It is true, some of the surveyors who run the line in 1881 and since, put it further north, but others, one, at least, does not, and it is reasonably probable that as this surveyor seems to have found evidences of the original monument, and as it coincides with the survey made in the presence of the owners of the property when dividing the land between themselves, when the government' monuments were still visible, the line as run by him is the true one, so that wre are not prepared to say that the evidence introduced by appellee creates a preponderance in his favor. So, if appellee is deprived of a portion of his land on the south, it is at least uncertain whether he could take a corresponding quantity on the north. But we think Fisher, and those claiming under him, are estopped by his deed from disputing the plaintiff’s south boundary, as actually located at the time of its delivery, as before shown. This is sufficient to sustain the judgment below as to all that part of the strip of land in controversy situated in the west half of the quarter, and it only remains to determine whether the plaintiff is entitled to that upon the east half of the quarter.

The law in this State is well settled that the owners of adjoining lands may, by parol agreement, when fairly entered into, settle and permanently adopt and establish a boundary line between their lands, which, when followed by possession according to the line established, will be binding upon them and their privies, the same as if made by deed. It is the policy of the law to give stability to such agreements, and thus prevent litigation. See Crowell v. Maughs, 2 Gilm. 419; Cutler v. Callison, 72 Ill. 113; Kerr v. Hitt, 75 id. 60; McNamara v. Seaton, 82 id. 498.

There can be but little doubt, from the evidence, that Fisher and Mean, in 1845, had a division line run between their respective lands, and established monuments to witness it, and that all parties interested in the lands acquiesced in the same until some time in 1881, and recognized it as the true boundary line, and built and maintained fences, and cut timber, on 'the faith that it was such; and there is abundant evidence "that Solomon Fisher, on frequent occasions, pointed out the witness-trees, and this line, as being the true line. And it ■being shown that the government monuments were visible long ••after the survey of 1S45, and Solomon Fisher being shown, ••as before stated, to have occupied this land at the time of the running of the line between himself and Mean, and was with the surveyor while running it, it is to be presumed that he knew whether the line thus run was in accord with the government corners then existing. The adoption of such a line may be implied from acts and declarations, and acquiescence therein; and after the lapse of thirty-five years of uninterrupted acquiescence in the line, under the circumstances the parties and their privies should be estopped from asserting that it is not the true division line.

The plaintiff gave in evidence, as color of title, two deeds: One from John Wore to Pinkney Schrock, dated May 20, 1847, for the balance of the north-east quarter of the northwest quarter of section 25, lying south of the road, which, by the calls therein, embraced the balance of the disputed strip, and proved that Schrock wrent into the possession of the land under his deed, and occupied the same, up to his death, to the line claimed by plaintiff, by all the acts of ownership and possession of which it was susceptible. The other deed was from William Wagonhaul, a commissioner appointed by the circuit court of Stephenson county, at its April term, 1868, in a proceeding by the heirs of Schrock for the partition of these lands. This deed was dated June 20, 1868, and purported to convey the land to the plaintiff by the same description as that in the deed of Wore to Schrock, and was clearly color of title to the land described therein. The plaintiff went into possession of the land therein described, down to the line now claimed by him as the true line, and occupied the whole of it, paying all taxes assessed against his land, until the defendants entered and took forcible possession of the strip in controversy. There is nothing to call in question the good faith of the plaintiff in making the purchase and accepting the commissioner’s deed, and in his occupancy and possession of the land thereunder. The good faith of the holder of color of title will be presumed in the absence of any- 0 thing to the contrary. It should be here stated, that in 1864 plaintiff had. built about 40 rods of fence on the blazed line, as a division fence, and in 1869, Solomon Fisher joined with him, and, by agreement, built the rest of the division fence between their lands on that line.

We think the plaintiff has shown a right, under the twenty years limitation law, to all the land. In Kerr v. Hitt, 75 Ill. 59, the court say: “Twenty years’ adverse possession of land, accompanied by payment of taxes, under a continuous assertion of ownership, hostile to all others, will constitute a bar to a right of entry by any one not within any saving clause of the statute, claiming to have paramount title, whether the claim of the party in possession is rightful, or even under a muniment of title. (Turney v. Chamberlain, 15 Ill. 271.) * * * Monuments established by the acts of adjacent owners are as sufficient to limit boundaries of their respective lands, when accompanied by actual possession, as appropriate descriptions in the deed. Of this character are the division fence and blazed line, which we regard as having been established by the adjacent land owners. As was said by this court in Baxter v. Gottmanhausen, 65 Ill. 499, it has been held that when parties agree upon a boundary line, and enter into possession according to that line, they are thereby concluded from afterwards disputing that it is the true line, even when the Statute of Limitations has not run. Our conclusion is inevitable, from the evidence, the blazed line was run, in the first instance, to mark the division, and afterwards the fence was erected on that line, if not by express agreement, certainly by the tacit consent of the abutting proprietors. By all the authorities, this is sufficient to estop the parties, their heirs and all privies in estate, from, disputing the fact it is the true line.”

Twenty years’ actual possession of a lot under a contract of purchase, or adversely, is a bar to an action of ejectment as to any part of the land wdthin the enclosure, even though the fence may have been over the true boundary of the lot. (Schneider v. Botsch, 90 Ill. 577.) See, also, Schoonmaker v. Doolittle, 118 Ill. 605, which is directly in point. This suit was begun December 3, 1884.

The facts of this case clearly bring it within the rule announced by this court in the cases above cited. It is shown that Sehroek acquired possession, under his deed from Wore, as far back as 1847, and held it continuously up to his death, claiming to the blazed line, and that since 1868, up to 1882, the plaintiff held the undisputed possession to the same line. So, also, it is shown, that Daniel Bennehoff was in possession of that part of the land conveyed to him, as before shown, from 1847 up to his death, in 1869, and that from that time the plaintiff has had the actual and exclusive possession of the same until the entry by the defendants. As already shown, prior to the building of the division fence in 1864 and 1869, the parties were, without objection, and with the knowledge of appellant and his privies, claiming to this line, and exercising such acts of ownership as the land was susceptible of, —i. e., by cutting timber, etc.,—and from the time of building such fence, plaintiff’s possession was by actual enclosure and occupancy of the land. For over fourteen years plaintiff had thus, by the consent and agreement of appellant and his privies, had the land wdthin his actual enclosure, and for over thirty years the line had been recognized and acquiesced in by all parties. We think the cases cited are decisive of the question being considered, and that appellants are concluded from asserting the line thus established and acquiesced in is not the true line. It is claimed that the court erred in the admission of evidence to show possession; and first, that the plaintiff should have been confined to acts of ownership over the disputed strip; and second, that it was improper to allow the witnesses to say who was in possession of the land, and that the fact of possession could be shown only by proof of the various acts which go to establish possession. Neither of the objections is tenable. When a person enters upon a tract of land without color of title, or an instrument defining its boundaries, his possession will not extend beyond what he has enclosed or actually occupies; but when a party has a deed for a tract of land, actual possession of a part will, in law, constitute possession of the whole not in the adverse jjossession of another. A party need not have land enclosed before he can be said to be in actual possession. When he has color of title, possession may be shown by the constant and uninterrupted use through a series of years; and of timber land, by taking therefrom wood for fuel, fences and other purposes; or it may be shown by an actual occupancy of a portion of a tract for which he may have a deed, under which possession is held. In such cases the deed may be regarded as enlarging the possession to all the land it includes. Austin v. Rust, 73 Ill. 491; Scott v. Delany, 87 id. 146; Hubbard v. Kiddo, id. 578; Coleman v. Billings, 89 id. 183; Cairo and St. Louis Railroad Co. v. Woosley, 85 id. 370. The court properly refused to confine the plaintiff to the cutting of timber before the land was enclosed to the narrow strip involved in this action.

No objection is perceived to asking a witness who was in the possession of land. The other party may cross-examine as to the facts constituting the possession, if he desires. In Hardenburgh v. Crary, 50 Barb. 32, the court say: “There is one particular in which I think the judge at the circuit erred, and for which I think a new trial ought to be granted, without examining the other questions in this case. He excluded evidence to show who was in the actual occupation of the prernises in dispute, the object being, doubtless, to show that the defendant was so in possession. I think this was a question of fact, and not a conclusion of law. It was a question to be determined by ocular observation, and not by a process of reasoning. * * * It might be more or less difficult to answer if both parties were upon the premises; but the difficulty of the question does not affect the competency of the evidence. It might involve the necessity of further questions, and, perhaps, of a rigid cross-examination; but this last, I think, was the true remedy, and not an objection to the question itself. It belongs to that class of facts, of which there are many in the law, seemingly involving, to some extent, the expression of an opinion or a conclusion from other facts, as to which, from the necessity of the case, the law tolerates a direct and comprehensive question,”—citing Parsons v. Brown, 15 Barb. 590. To the same effect, see Knap v. Smith, 27 N. Y. 281. In Rand v. Freeman, Allen, 517, one of the plaintiffs was asked, “Did you take possession of the property?” It was objected that the question was improper, because possession consists partly of law and partly of fact. The court say: “It is a sufficient answer to this, to say that the word is often used merely in reference to the fact, and the defendant could have protected himself from all prejudice by cross-examination. The instruction of the court was a sufficient protection." In Thompson v. Hall, 45 Barb. 216, the witness was asked, “Was he (Thompson) able to pay his debts in December, 1855, in the course of trade ?” The court say, in form the question called for a fact, and not an opinion of the witness, and that the question was proper. See, also, Blanchard v. Mann, 1 Allen, 433 ; Iselin v. Peck, 2 Rob. (N. Y.) 629.

The plaintiff’s first instruction is claimed to be erroneous, in telling the jury that the deed from Wagonhaul was color of title, made in good faith. That instruction is as follows :

“The court instructs the jury, that the deed in evidence from William Wagonhaul, commissioner, to Hugh Bennehoff, is color of title, made in good faith, to the lands described in said deed; and if the jury finds, from the evidence, that the plaintiff, at the date of said deed, went into and took actual possession of the lands in said deed described, and continued in such possession for thirteen successive years thereafter, and did, during all said years, pay all the taxes legally assessed upon said lands, then the law holds the plaintiff to be the owner of the lands described in said deed, to the extent and according to the purport of his said deed, unless the defendants show a better title in themselves, or in some other person than the plaintiff.”

It has been held by the Supreme Court of the United States, that whether the evidence establishes the good faith of the holder of color of title, is a question of fact, to be decided by the jury. (Wright v. Mattison, 59 U. S. 50.) Whether the deed in this case is color of title, is a question of law^ but whether it was acquired in good faith, was a question of fact for the jury, and the instruction is faulty in telling the jury that it was held in good faith. But as there was no evidence tending to'impeach the good faith of the holder of the color of title, the instruction could not have prejudiced the defendants. If there had been any evidence tending to show bad faith, the instruction would have been such error as to require a reversal of the judgment, if not warranted on some other ground.

From the view here expressed, it will not be necessary to consider the other questions discussed by counsel. If the judgment is warranted on any ground, as we think it is, it should stand, although error may have been committed as to matters not essential to the right to recover. It is sufficient to say that we fail to see any error in the rulings of the court in the admission or exclusion of evidence, or in giving or refusing instructions, which, in our judgment, might have changed the verdict of the jury.

The judgment of the circuit court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    John J. Mayers et al. v. Maria Smith.
    Filled at Springfield September 27, 1887.

    1. Juey—right of peremptory challenge in respect to a panel of four after being passed upon and accepted, but not sworn. Under our statute ‘requiring “that the jury shall be passed upon and accepted in panels of four, -by the parties, commencing with the plaintiff, ” after a panel of four jurors has been passed upon and accepted by both parties, and another panel is called, a party having peremptory challenges will not have the right to go •back and challenge peremptorily any one of the jurors so accepted, although ■they have not been sworn.
    2. Whatever may have been the rule, at common law, as to the exercise of the right of peremptory challenge at any time before the jury is sworn, under our statute the right of peremptory challenge is cut off with respect to any one ■of a panel of four jurors which has been passed upon and accepted by both •parties.
    3. Same—former decision distinguished. The decision in Belt v. People, '97 111. 461, holding that when a panel of four jurors had been passed upon and ‘accepted by the plaintiff and tendered to the defendant, and before their acceptance by the defendant and being sworn, it was not error to allow a challenge, by the plaintiff, of one of the jurors for cause, is not inconsistent with 'the ruling in this case. It was in that case said, the permission to re-examine the juror, and show cause of challenge, was within the discretion of the court. 'Nothing was decided in respect to the discretion of the court as to the allowance of a peremptory challenge.
    4. Intoxicating liquors—action by wife for injury to means of support—evidence as to her means of support. In an action under the statute, by a wife, against the keepers of a dram-shop, for injury to her means of ■support by sale or gift of intoxicating liquor to her husband, there is no error in admitting evidence that at the time of her husband’s death she was subsisting and being supported by his labor, and that she had no means of support except by his labor. In such action it is proper to show what were ■the plaintiff’s means of support.
    5. Same—former decision distinguished. In Chicago and Northwestern Railway Co. v. Moranda, 93 111. 308, it was held error to admit proof that the plaintiff had no other means of support than that arising from the earnings of the deceased. That was under a different statute,—one giving eompensa-tion for causing death by wrongful act or neglect, when the recovery was for -file pecuniary loss sustained,—and has no application to this case.

      6. Same—evidence in exclusion of exemplary damages, when no such .damages are sought. In an action by a wife, against a saloon keeper, to recover damages caused to her means of support by the sale of liquor to her .husband, the defendant offered to prove that he had given orders to his bar■tender not to sell any liquor to the husband, in order to show the case was not one calling for exemplary damages, which the court refused to allow: Held, as the record did not show the case was one for exemplary damages, ■or that any such damages were sought, there was no error in excluding the •evidence.
    7. Same—evidence—proof of sale by defendant. In a suit by a widow, ■against a saloon keeper, to recover damages for injury to her means of support, resulting from a sale of liquor to her husband, a witness testified that he had been in defendant’s saloon with the plaintiff’s husband the evening ■before his death, and saw the latter take a drink there; that he and the husband proceeded down street until they came to another saloon, where the" latter wanted to take another drink: Held, that this last evidence was not ■obnoxious to the objection of getting in a statement of the husband, corroborating the witness’ testimony, that the husband had already taken one drink at the defendant’s. It showed no more as to another drink, than that the witness deemed it as such.
    8. Instruction—as to preponderance of the evidence. An instruction "that “by a preponderance of the evidence is not necessarily meant a greater number of witnesses, but if the plaintiff has proven the material allegations ■of her declaration by such evidence as satisfies and produces conviction in the minds of the jury, then she has proven her case by a preponderance of the evidence, ” is not open to the objection of ignoring the evidence on the part of the defendant, but leaves the jury free to determine the case from all the evidence on both sides, especially when the jury is fully instructed, on the part of the defendant, that the plaintiff must prove every material alle■gation of her declaration by a preponderance of the evidence in the case, and that the jury must give to the testimony of each witness such weight as, in ■their judgment, it is entitled to, and that if the evidence was equally balanced, .to find for the defendant.
    Writ oe Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court ■of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs, Barnum, Rubens & Ames, for the plaintiffs in error:
    We contend that a party has a right, after the acceptance of a juror, and before he is sworn, to challenge such juror peremptorily; and such right is not subject to the discretion or the control of the court, so long as it is confined to the-number of peremptory challenges allowed by law. Hendrick v. Commonwealth, 5 Leigh, 707; Jackson v. Pittsford, 8 Blackf. 194; Hunter v. Parsons, 22 Mich. 96; Johns v. People, 25 id. 500; Hamper’s Appeal, 51 id. 71; State v. Pritchard, 15 Nev. 74; People v. Kohle, 4 Cal. 199; People v. Jenks, 24 id. 11; People v. Carpenter, 36 Hun, 315; Hooker v. State, 4 Ohio, 348; Beauchamp v. State, 6 Blackf. 299; Munley v. State, 7 id. 593 ; Morris v. State, id. 607; People v. Reynolds, 16 Cal. 128; People v. Ah You, 47 id. 121; Brake v. State,. 51 Ala. 30; Kleinback v. State, 2 Speers, 351; Schumacher v. State, 5 Wis. 324; Lindsley v. People, 6 Park. Cr. 233; Drake v. State, 51 Ala. 30; People v. Bodene, 1 Denio, 281; 1 Chitty on Crim. Law, 545; People v. Carrier, 49 Mich. 442; State v. Armington, 25 Minn. 92.
    It was error to admit proof that plaintiff had no other means of support save that arising from the earnings of the. deceased. Railroad Co. v. Moranda, 93 Ill. 308.
    The court erred in allowing the witness Drum to state that Smith wanted to take another drink. The witness could tell what took place, without, in substance, relating what Smith, said. The witness, by his answer, contrived to get in a statement, as coming from Smith, to corroborate witness’ testimony that Smith had already taken one drink.
    Plaintiff’s fifth instruction tells the jury “if the plaintiff has-proven her declaration by such evidence as satisfies and produces conviction in the minds of the jury, then she has proven-her case by a preponderance of the evidence. ” It in effect-tells the jury that if the evidence for the plaintiff, standing, alone, proves to their satisfaction the allegations of her declaration, then she has proven her case by a preponderance of the evidence, without reference to the evidence for the defendants, and without requiring the jury to consider all the facts and circumstances in the case.

      It may be said that other instructions in the series correctly state the law upon this point, but in a case where there may be a doubt whether substantial justice has been done, each instruction of defendant in error must state the law correctly, or there should be a reversal. Village of Warren v. Wright, 3 Bradw. 602; Railroad Co. v. Murray, 62 Ill. 326; Baldwin v. Killian, 63 id. 550; Railroad Co. v. Moffitt, 67 id. 431; Railroad Co. v. Payne, 49 id. 449.
    Mr. James S. Ewing, and Messrs. Pitts, Bent & Bindley, ior the defendant in error:
    By the English practice, each juror is sworn as soon as he has been examined and accepted. State v. Potter, 18 Conn. 176; Regina v. Frost, 9 C. & P. 136.
    The statute requires that the jury shall be examined and accepted in panels of four. After that has been done, the right to challenge for cause shown, even in criminal cases, is wholly in the discretion of the trial court. Belt v. People, 97 Ill. 461; Bridge Co. v. Pearle, 80 id. 254; Cone v. Rogers, 7 Metc. 500; State v. Cameron, 2 Chand. 172; Drake v. State, 3 Texas App. 649; Baker v. State, 3 id. 526; Herback v. State, 43 Texas, 242.
    There was no error in admitting evidence of the plaintiffs’ means of support. The Morando case was under a very different statute. A recovery under the statute in that case is not for an injury in the widow’s means of support, but for an injury to the estate, and the sum recovered passes to the widow or next of kin. That the evidence was proper, see Flynn v. Fogarty, 106 Ill. 263; Keedy v. Howe, 72 id. 133 ; Fentz v. Meadows, id. 540; Kellerman v. Arnold, 71 id. 632; Meidel v. Anthis, id. 241; McCann v. Roach, 81 id. 213; Confrey v. Stark, 73 id. 187.
    There was no error in admitting the answer of Drum that Smith wanted to take another drink. The answer was responsive to the question.

      Plaintiffs’ fifth instruction has no such meaning as is sought to be given to it. It could not mislead, in view of the instructions given for the defendant.
    As no claim ivas made for exemplary damages, there was no error in excluding evidence of defendant’s orders not to' sell liquor to Smith.
    On the question that no claim for exemplary damages could be made by the plaintiffs on her proofs, we cite the following: Kellerman v. Arnold, 71 111. 632; Hackett v. Smelsley, 77 id. 109; Freese v. Tripp, 70 id. 496; Fentz v. Meadows, 72 id. 540; Albrecht v. Walker, 73 id. 69; Brantigam v. While, 73 id. 561; Bates v. Davis, 76 id. 222; McEvoy v. Humphrey, 77 id. 388.
    “The court will not award a new trial on the ground of an improper instruction, where it appears from the record that substantial justice has been done.” Pahlman v. King, 49 111. 266; Rankin v. Taylor, id. 451; Warren v. Dickson, 27 id. 115; Clark v. Pageter, 45 id. 185; Beseler v. Stephani, 71 id. 400; Hewett v. Jones, 72 id. 218; Barling v. Railroad Co. 85 id. 18; Lowry v. Coster, 91 id. 182; Grier v. Puterbaugh, 108 id. 602.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court :

This was an action on the case, under section 9 of the Dram-shop act, brought by the defendant in error, Maria Smith, against John J. Mayers and Harry H. Miller, to recover damages for an injury to her means of support by reason of the death of her husband, David Smith, caused, as alleged, by intoxication produced by intoxicating liquors, obtained, by purchase or gift, from the defendants. The plaintiff recovered in the circuit court. The judgment was affirmed by the Appellate Court for the Third District, and the defendants bring their writ of error to reverse the judgment of the Appellate Court.

In impaneling 4he jury in the circuit court, the plaintiff and defendants passed upon and accepted two panels of four; jurors each, and in doing so defendants used but one peremptory challenge. While passing upon the third panel of four, and before it was accepted by defendants, and before any of the jury were sworn, and while defendants had two unused peremptory challenges, defendants offered to challenge peremptorily the jurors Owen and Carpenter, w'ho were in the-panels previously accepted, but not sworn. The court refused to permit the challenges, or either of them. Defendants excepted, and made no further peremptory challenges. This ruling of the court is assigned for error.

Section 21, chapter 28, of our statute respecting jurors, is-as follows: “Upon the impaneling of any jury in any civil cause now pending or to be hereafter commenced in any court in this State, it shall be the duty of the court, upon request of either party to the suit, or upon its own motion, to order the full number of jurors into the jury-box before either party shall be required to examine any of the said jurors touching-their qualifications to try any such causes: Provided, that the-jury shall be passed upon and accepted in panels of four, by the parties, commencing with the plaintiff. ” Section 23 is :• “The provisions of this act shall apply to proceedings in both civil and criminal cases.” Section 49, chapter 110, of the Revised Statutes, provides, that “in all civil actions each party shall be entitled to a challenge of three jurors, without showing cause for such challenges.”

It is contended that the statutory right of challenging any juror peremptority, may be exercised at any time before the juror is sworn, notwithstanding he may have previously been passed upon and accepted by both parties. Decisions are cited from other States which favor such position. But such decisions, made in States where there are no statutory provisions of adverse bearing, are of but little authority in the determination of a case under our statute. The common law rule is said to be as is above contended for. Under the practice at common law, no such case would arise as is here presented, of a party reserving his power of peremptory challenge until after he had examined and passed upon the whole twelve jurors, or eight of them, for causes of challenge, and then to claim the exercise of such right of- peremptory challenge as to jurors who had previously been passed upon and accepted, for the reason that the practice there was to require each juror to be sworn when his examination was completed.

In the case of The State v. Potter, 18 Conn. 176, in answer to the claim of right to make a peremptory challenge at the party’s own time, provided it was done before the juror was sworn, the court observe: “But it is said that by the English practice the party has a right to challenge until the juror is sworn. There, each juror is sworn as soon as he has been examined and opportunity given for challenges. By our practice, the jurors are none of them sworn until all have been examined and opportunity offered for challenge. Here, when one has been examined and opportunity to challenge given, he is directed to take his seat as a juror, just as in England after he has been sworn. ” And it was in that case held, under the practice in that State, that the peremptory challenge of a juror after he had been examined and opportunity to challenge given, and he was directed to take his seat as a juror, was properly disallowed, as made too late, although made before the juror had been sworn. And see Horback v. The State, 43 Texas, 242; State of Wisconsin v. Cameron, 2 Chand. 172; Commonwealth v. Rogers, 7 Metc. 500.

The question here arising is one upon the construction of the provision of our statute, “that the jury shall be passed upon and accepted in panels of four, by the parties, commencing with the plaintiff.” What is meant by this passing upon and acceptance of -jurors? Does it not imply their examination, the exercise of the challenges in regard to them which are to be exercised, and the taking of them as jurors in the case ? And when the statute says the passing-, upon and acceptance of the jury shall be in panels of four, is it not a direction that that shall be the mode of the procedure, and an exclusion of any other mode? If, after two panels of four jurors have been passed upon and accepted by both parties, and a third panel of four is called, a party may, as is claimed here, go back and peremptorily challenge any ■one of the eight which have been passed upon and accepted, what becomes of the mandate of the statute that the jury •shall be passed upon and accepted in panels of four ? It would be made insignificant and meaningless. We are of opinion that the right of peremptory challenge here claimed ■does not consist with this statutory provision; that whatever may have been the rule at common law as to the exercise of -the right of peremptory challenge at any time before the juror is sworn, under our statute such right of peremptory challenge is cut off with respect to any one of a panel of four jurors which has been passed upon and accepted by both parties.

In Sterling Bridge Co. v. Pearl, 80 Ill. 251, it was said: “By •providing that the jury shall be passed upon in panels of four, commencing with the plaintiff, it would seem clear that each panel must be accepted by both parties before calling upon .-another. * * * When a panel of four is accepted, they become a part of the jury, and a panel of four more is called up.” In Belt v. People, 97 Ill. 461, it was held, where a panel of four jurors had been passed upon and accepted by the plaintiff and tendered to the defendant, and before there had been acceptance by the defendant or being sworn, that it was hot error to allow a challenge, by the plaintiff, of one of such jurors for cause. It was said the permission to re-examine the juror and show cause of challenge, was a matter within ihe discretion of the court.

The question which is here presented and decided, is as 4o the right of peremptory challenge. We decide or intimate nothing in respect of a court’s discretion as to the allowance of a peremptory challenge in such a case.

Error is assigned in the admission of evidence by the plaintiff, that at the time of her husband’s death she was subsisting and being supported by his labor, and that she had no means of support except by his labor. The subject of the claim in this action, under the statute, is, for injury to the plaintiff in her means of support; and in order to the ascertainment of what is the injury in that regard, it is, of course, a proper subject of inquiry what the plaintiff’s means of support were. (See Flynn v. Fogarty, 106 Ill. 263; Keedy v. Howe, 72 id. 133; Confrey v. Stark, 73 id. 187.) The testimony was properly admitted.

The case of Chicago and Northwestern Railway Co. v. Morando, 93 Ill. 308, is referred to as holding that it was error to admit proof that plaintiff had no other means of support-than that arising from the earnings of the deceased. That was a different sort of action, under a different statute,—-one giving compensation for causing death by wrongful act or neglect, where the recovery was for pecuniary loss sustained; and it was held to be immaterial what were the pecuniary resources of the plaintiff after the decedent’s death. The decision does not apply to the present case.

The witness Drum, after testifying that he had been in Miller’s saloon with Smith the evening before Smith’s death, and had seen Smith take a drink there, stated that he and Smith proceeded south on Main street until they came toHoker’s saloon. Drum was then asked:

Q. “What took place there ?

A. “He wanted to take another drink. ”

The admission of this answer is alleged to be error. It is said, Drum, by this answer, got in a statement, as coming from Smith, to corroborate Drum’s testimony that Smith had already taken one drink. We do not see that this objection lies to the answer. It does not purport to be a statement of Smith that he wanted to take another drink. If showed no more as to another drink, than that the witness deemed it as such.

It is urgéd that it was erroneous to exclude evidence offered by defendant Miller, that he had given orders to his bar-tender not to sell any liquor to Smith. It is said the evidence was proper to show that the case was not one for exemplary damages. The record does not show the ease to be one for exemplary damages, or that any question of exemplary damages was in any way raised, and there is no reason to think that there was anything given by the jury for exemplary damages. We perceive no error in the exclusion of the evidence.

The following instruction given for the plaintiff is complained of as being erroneous, viz:

“By a preponderance of the evidence is not necessarily meant a greater number of witnesses, but if the plaintiff has proven the material allegations of her declaration by such evidence as satisfies and produces conviction in the minds of the jury, then she has proven her case by a preponderance of the evidence. ”

It is said the instruction in effect tells the jury that if the evidence for the plaintiff, standing alone, proves to their satisfaction the allegations of plaintiff’s declaration, then she has proven her case by a preponderance of the evidence, without reference to the evidence for the defendants, and without requiring the jury to consider all the facts and circumstances shown by the evidence in the case, as should have been done. We do not think the instruction to be obnoxious to the criticism which is made upon it, but that it left the jury free to determine the ease with reference to the evidence for the defendants, and to consider in such determination all the facts and circumstances shown by the evidence in the case. And any possible tendency there might have been in the instruction to mislead in such respect, was counteracted by other instructions given for the plaintiff, that she must establish every material question in issue by a preponderance of ihe evidence in the case, and that the jury must give to the testimony of each witness such weight as, in the judgment of fhe jury, it was entitled to; and by instruction for tl\e defendants the jury were told, that before the plaintiff could recover «he must prove each and every allegation of her declaration ¡by a preponderance of the evidence, and that if the evidence as to the right of recovery preponderated- in favor of the defendants, or was equally balanced, the jury should find in favor of the defendants. Surely, as thus instructed, the jury could not have been misled by the instruction complained of, to think that they might consider the case upon the plaintiff’s testimony alone, without reference to the evidence for the defendants, and all the facts and circumstances shown by the evidence in the case.

Finding no material error in the record, the judgment must be affirmed. .

Judgment affirmed.

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


author: Mr. Justice Magruder

text:
    John Parker et al. v. James S. Shannon.

      Filed at Ottawa September 26, 1887.

      1. Cloud upon title—such as equity will remove. A bill will not lie to remove a mere verbal claim or oral assertion of ownership in land as a cloud upon the title. Such clouds upon title as may be removed by courts of equity, are instruments or other proceedings in writing, which appear upon the records, and thereby cast doubt upon the validity of the record title.
    2. Practice—proceedings in the trial court—after reversal and remandrnent. Where this court reverses a decree, and remands the cause generally, without any specific directions, amendments to the pleadings may be allowed •-upon the reinstatement of the cause in the court below. But when “the cause is remanded for further proceedings consistent with" the opinion, the mode of proceeding indicated in the opinion must be pursued, and any other mode is excluded.
    3. Where a decree is reversed by this court holding that the circuit court should not have passed upon the legal title to lands, and should have gone no further than to stay, temporarily, the doing of any irreparable injury thereto, which, it was alleged, had been threatened, until a trial and determination of the question of title could be had in a court of law, and the cause remanded for further proceedings consistent with the opinion pronounced, it will be error to allow an amendment of the bill bringing in other matters and grounds of relief. The only thing left to be done is for the circuit court to enjoin the doing of irreparable injury until the title shall be settled at law.
    Writ of Error to the Circuit Court of Du Page county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Egbert Heryey, for the plaintiffs in error.
    Messrs. E. H. & N. E. Gary, for the defendant in error.
   Mr. Justice Magruder

delivered the opinion of the Court:

Í This case is now before us for the second time. The former opinion in it is reported in 114 Ill. 192. We there held, that the circuit court should not have passed upon the legal title, and should have gone no further than to stay, temporarily, the doing of any irreparable injury, until a trial and determination of the question of title could be had in a court « of law; and the cause was remanded for further proceedings consistent with that opinion. We also there held, that it was erroneous to make any decree against Caroline M. B. Parker» The decree, sought to be reviewed by the present writ of error, finds the complainant to be “the absolute, unqualified and unconditional owner in fee simple” of the lots described in the bill, and orders, that the injunction be made perpetual against both John Parker and Caroline M. B. Parker.

After the remanding order was filed in the circuit court an amended bill was filed, which omitted any statement as to the mode in which complainant derived his title, or as to the character of the claim, set up by defendants. 1 The amended bill simply alleged, that complainant was the owner in fee of the premises and in the possession thereof, and that defendants were giving out and pretending that John Parker was “the owner of or in some manner interested in or entitled to the possession of the said premises or some part thereof, ” and that, under such pretended claim, defendants were committing trespasses, etc. It also alleged, that said pretended claims of the defendants operated as a cloud upon the title of complainant, and prayed that said cloud might be removed. The decree, besides the findings -already mentioned, found that the claims in question did operate as a cloud, and decreed that such cloud be removed. It was rendered after default taken against the defendants below, who did not plead, answer or demur to the amended bill, nor in any way enter their appearance, after it was filed.

The amended bill sets up no other or different claim on the part of the defendant Parker, than that which is alleged in the original bill, referred to in our former opinion. A bill will not lie to remove a mere verbal claim or oral assertion of ownership in property, as a cloud upon the title. Such clouds upon title, as may be removed by courts of equity, are instruments or other proceedings in writing, which ■ appear upon the records and thereby cast doubt upon the validity of the record title.

When this court reverses a cause and remands it generally without any specific directions, amendments to the pleadings may be allowed upon the reinstatement of the cause- in the court below. This ease, however, was not remanded generally. The order in Parker v. Shannon, 114 Ill. 192, is as follows: “The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion. ” The only proceeding, wliicli was consistent with that opinion, was to enjoin the doing of irreparable injury, until the question of title could be tried and determined in a court of law. Where a certain mode of proceeding is marked out in the opinion and the direction is to proceed consistently therewith, any other mode of proceeding is excluded. Hook v. Richeson et al. 115 Ill. 431; Gage v. Bailey, 119 id. 539.

The second decree entered by the circuit court is reversed, and the cause is remanded with directions to proceed as indicated in Shannon v. Parker, 114 Ill. 192.

Decree reversed.


author: Mr. Justice Scholeield

text:
    George Taylor v. George Wright.

      Filed at Springfield September 27, 1887.

    1. Taxation and tax titles—sufficiency of description. A description of land for the purposes of taxation, “W. side U. i, S. E. $T. W. 10 acres, See. 8, T. 23, R. 10,” is sufficiently certain. The “W. side” means the west side. ,
    2. Same—costs chargeable on delinquent land,. Under the act of March 29, 1872, the following costs are to be charged to and collected with the delinquent taxes on land sold for taxes: For making list of delinquent land for judgment, three cents; for making same on precept, sale and redemption record, three cents; for making list to the auditor, of land sold, three cents; and for issuing certificate of sale, tw-enty-five cents,—making in all thirty-four cents; and the delinquent tract may be sold for that sum, in addition to the taxes, etc.
    3. Same—tax deed as evidence of regularity of sale. Section 224 of the Revenue law of 1874, makes the deed executed in pursuance of its provisions, prima facie evidence that the land therein described was sold at the time and place required by law, and it is incumbent on the party questioning the tax title to prove that it was not so sold.
    4. Same—sale of only part of a tract, after judgment against the whole-presumption. The record of a sale of land for taxes showed that the north half of the south-east quarter of the north-west quarter of section 8, contained only seventeen acres, and that after the judgment against the tract, and before sale, the amount charged against the east seven acres was paid, thus: "E. 7 pd.—amount paid before sale, @6.60.” The west side of the north half of the south-east quarter of the north-west quarter of section 8, ten acres, was sold. This was held sufficient to show the reason why only ten acres was sold. But aside from this, the presumption from the tax deed is, that the part sold was properly sold.
    5. Same—notice of time for redemption—its requisites. A notice of the purchase of land for taxes which fails to state for what year the land was taxed, and to whom it was taxed, is insufficient to authorize a tax deed. But if it states the name of the person against whom it was assessed, that is equivalent to a statement that it was taxed to the person to whom it was assessed.
    6. Same—service of notice—upon whom—as to one only in constructive possession. The constitution and statute do not require a personal notice of the tax sale and of the time when the redemption will expire, upon one merely in the constructive possession or occupancy of the land, but only upon an actual possessor or occupant.
    7. Same—time when notice must be given. The constitution, requiring notice to be given of tax purchases, etc., does not restrict the General Assembly as to the time when it shall require the notice to be given, and consequently the statute requiring such notice to he given three months before the time of redemption expires, is a valid law. Purchasers, and others, acquiring rights in the property after the giving of such notice, will occupy the position of purchasers' pendente lite, and notice to them is not necessary.
    8. Same—of the affidavit of the service of notice. An affidavit of the giving of notice Of the purchase of land for taxes, and of the time when the right of redemption will expire, is fatally defective if it fails to show that the person making it was the purchaser, his assignee or his agent, and that no one was in the actual possession or occupancy of the land at the time of the giving of the notice by publication. The mere signing of the affiant’s name, with the word “agent” after it, without stating of whom he was agent, will not meet the requirement of the law.
    9. An affidavit that “no person was in actual possession or occupancy of said piece or parcel of land for any period of the time from the date of said sale down to a date not more than three months before the 21st day of June, 1879, within the knowledge or belief of this deponent,” without showing that he had any knowledge of the fact upon which to base a rational belief, is insufficient to authorize the making of a tax deed upon publication of notice.
    10. Practice in the Supreme Court—giving opinion upon questions not presented. This court will not give an opinion, although requested to do so by counsel, upon a question not presented by any assignment of error. Such an opinion would be gratuitous, and not conclusive upon the parties or the court.
    Appeal from the Circuit Court of Ford county; the Hon. Owen T. Beeves, Judge, presiding.

      Mr. Stephen R. Moobe, for the appellant:
    The land was sold for illegal costs, and for more than it was legally liable. Sec. 21 of act of 1872; Sess. Laws of 1871-72, p. 437.
    The record fails to show that the land was sold at the time- and place required by law. Notice of the time and place of sale is necessary. Cooley on Taxation, 338.
    A sale either before or after the time which has been named, can not be sustained. Hope v. Sawyer, 14 Ill. 254.
    Nor can it be determined what part of the north half of the-south-east quarter of the north-west quarter of section 8 is sold. The record shows “acres or part sold, 10.” This may cover any part of the tract not exceeding ten acres. The sale is void for uncertainty Curry v. Hinman, 11 Ill. 426; Morrison v. Kelly, 22 id. 610; Fitch v. Pinckard, 4 Scam. 70.
    The court does not know what the “W. side” of the tract means. It may mean the “wet” side, the “west” or the “wrong” side. The land should be taken from the east side, Spellman v. Curtenius, 12 Ill. 409.
    The validity of the deed is dependent on the performance-of the statutory conditions of giving notice for redemption and making affidavit of same, and a failure to comply with the statute will be fatal to deed, regardless of what the real facts may be. The validity of the deed depends upon a strict compliance with the law. Gage v. Mayer, 117 Ill. 632; Burroughs on Taxation, p. 320, sec. 116; Fitch v. Pinckard, 4 Scam. 69; Morgan v. Camp, 16 Ill. 175; Altes v. Hinckler, 36 id. 265 ; Charles v. Waugh, 35 id. 315; Holbrook v. Dickinson, 46 id. 285.
    The affidavit does not show a compliance with section 216-of the Revenue act, nor with section 5, article 9, of the constitution:
    The constitutional provision is, “that occupants of land shall, in all cases, be served with personal notice before time ■of redemption expires, ” and the legislature is required to provide what is a reasonable notice to be served; and the legislature, in view of the provision that notice must be served on the occupant, makes a distinction between actual possession and occupancy. Actual possession means i>edis possessio. Occupancy means a possession by acts of ownership, by cultivation or user, with or without an actual residence upon it. This doctrine is sustained by this court in Morrison v. Kelly, 22 Ill. 610, and Erring v. Burnett, 10 Pet. 53.
    It is necessary that the affidavit of proper notice for redemption should state the particular facts relied on as showing :a'compliance with the law, so that the court may determine, from the facts stated, that the law has been complied with, .and diligence shown to authorize a deed to be issued. Wallahan v. Ingersoll, 117 Ill. 123 ; Price v. England, 109 id. 394; Gage v. Bailey, 100 id. 580; Holbrook v. Fellows, 38 id. 440 ; Kelson v. McKennon, 52 id. 43; Barnard v. Hoyt, 63 id. 341; Cooley on Taxation, 336, and authorities cited in note 4.
    The affidavit is insufficient for another reason. The sale was made on June 22, 1877, and the owner had two years in which to redeem, which includes all the day of June 22, 1879. Gage v. Bailey, 100 Ill. 536.
    The affiant says no one was in actual possession from the time of the sale down to a date not more than three months before the 21st day of June, 1879, in the knowledge or belief ■of the deponent. That might be true, and yet within three months before June 22, 1879, some person may have been in actual possession and occupancy of the premises.
    The affidavit says further that Earl “caused a proper notice to be published” in a newspaper. What is a proper notice is left to be determined by the affiant. It is defective in not .stating “particularly the facts relied on as such compliance” with the giving of the notice. Price v. England, 109 Ill. 396 ; Wallahan v. Ingersoll, 117 id. 123; Gage v. Mayor, id. 632.

      Messrs. Cook & Mojtett, for the appellee:
    The total fees allowed to the clerk was thirty-four cents. The statute provides that this shall be charged as costs, and •collected with the taxes. Act of March, 1872, secs. 18, 21, 22.
    The judgment that “said tracts of land, etc., be sold as the law directs, ” is in the form prescribed by the statute. Laws of 1873, p. 47, see. 191.
    The statute makes the tax deed prima facie evidence “that the real estate was advertised for sale in the manner and for the length of time required by law, ” and “that the sale was •conducted in the manner required by law.” Act of March, 1872, sec. 224.
    The “W. ten acres of a tract” means the west ten acres thereof. Bowen v. Prout, 52 Ill. 355.
    The taxes on the east seven acres having been paid, the •collector had no right to sell it. The court does know that “W. side” means the west side. Law v. People, 80 Ill. 268; Fowler v. People, 93 id. 116; Sibley v. Smith, 2 Mich. 287.
    The statute does not require that the name of the purchaser •shall be given in the notice. The purchaser or assignee shall give the notice, in which shall be stated the date of purchase, in whose name taxed, description of the land, for what year taxed, and when the time of redemption expires. (Revenue :act, see. 216.) It is sufficient to show that the notice contained the name of the person to whom the land was assessed. Frew v. Taylor, 106 Ill. 159.
    The affidavit of notice is in the identical form of that in the .case last above cited.
    The rule, as understood by us, is:
    First—The occupant must be served with notice at least three months prior to the day when the right of redemption expires. 2 Gross’ Stát. p. 366, sec. 680; 2 Starr & Curtis, chap. 120, sec. 218.
    Second—A notice served less than three months prior to such day will not avail the purchaser. Idem.

      Third—If there be an occupant, he can be served with notice more than three months prior to the day when the right of redemption expires. Garrick v. Chamberlain, 97 Ill. 620.
    Fourth—It is sufficient to serve the occupant, if there be-one, at the time of publication, provided that such publication be in apt time. Gage v. Bailey, 100 Ill. 530; 102 id. 11;. Hand v. Ballou, 12 N. Y. 541.
    Here the publication was made, commencing February 8, 1879, and the affidavit shows that no person was in actual possession or occupancy for any period of time from the date-of said sale down to a date not more than three months prior to June 21, 1879, and that James Mix, in whose name said land was assessed, could not be found, “upon diligent inquiry, ” in said county of Ford, and did not reside therein during the same period of time. This is sufficient. Frew v. Taylor, 106 Ill. 159; Gage v. Bailey, 100 id. 530.
    By taking the deed, and the title which it conveyed, Earl ratified the act of Frederick, and he thus be.came his agent at-the time the affidavit was made, even if it be true that helm'd no authority to act for him at the time.
    An unauthorized act by one assuming to be an agent for another, may be ratified by the principal, and such ratification gives to the act the same effect as if it were previously duly authorized. Flynn v. Railroad Co. 63 Iowa, 492; Mason v. Caldwell, 5 Gilm. 196; Drakely v. Gregg, 8 Wall. 242;. Rogers v. Kneeland, 10 Wend. 218.
    We do not agree with counsel in his definition of occupancy. As we understand it, occupancy means pedis p>os~ sessio,—the actual possession. Ewing v. Burnett, 11 Pet. 41; Walters v. People, 18 Ill. 194; Morrison v. Kelly, 22 id. 610; 2 Bouvier’s Law Dic.
   Mr. Justice Scholeield

delivered the opinion of the Court :■

This was ejectment, by appellant, against appellee, for a. certain- tract of land in Ford county. Appellee, on the trial, gave in evidence a tax deed, and numerous questions have been discussed in argument in relation to the sufficiency of that deed. We have given these questions as careful consideration as we can, and - the following are our conclusions thereon:

First—Counsel for appellant makes a calculation, showing, ■as he claims, that the amount for which the land was sold at the tax sale was too large, by forty-four cents. There is an •error in counsel’s addition, of ten cents. His figures really make, when added, only thirty-four, instead of forty-four, cents, and that thirty-four cents is authorized by section IS of the act of March 29, 1872, which both sides agree is applicable to this sale, thus: “Making list delinquent land for judgment, three cents; making list delinquent land on precept, sale and redemption record, three cents; making list to auditor, of land sold, three cents; issuing certificate of sale, twenty-five cents; total, thirty-four cents.” (See Laws of 1871-72, pp. 432, 433.) These shall, by the express language of the statute, “be charged as costs against the delinquent property, and be collected with the delinquent taxes thereon.”

Second—It is contended it nowhere appears that the land was sold at the time and place required by law. But section 224 of the Revenue law (Rev. Stat. 1874, p. 895) provides that tax deeds, executed pursuant to its provisions, shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the real •estate thereby conveyed, of the following facts: “Fourth, that the real estate was advertised for sale in the manner and for the length of time required by law; fifth, that the real estate was sold for taxes or special assessments, as stated in the •deed; sixth, that the grantee in the deed was the purchaser or assignee of the purchaser; seventh, that the sale was conducted in the manner required by law.” The deed here appears to have been executed pursuant to the provisions of this statute, and the burden is therefore upon appellant to overcome the prima facie case made by the deed. He has not proved that the land was not sold at the time and place required by law.

Third—It is contended the description is void for uncertainty. It is: “W. side N. j- S. E. N. W. 10 acres, sec. 8, T. 23, E. 10,—quantity sold, 10 acres. ” We think, on the authority of Law v. The People ex rel. 80 Ill. 268, and Fowler v. The People, 93 id. 116, this was sufficient. It is not a question of what possible construction might be put upon these initials, but, what construction would be given them by persons familiar with descriptions of real estate. They are to be construed with reference to the known customs of those whose duties are to describe real estate for purposes of taxation. We are to assume that some tangible and definite quantity was intended to be described, and we are not to be ignorant, as a court, of what we would understand as individuals. We can not, therefore, understand that “W. side” means, as counsel contend we might, “wrong side, ” or “wet side,” because such words are never used in describing real estate for taxation. Such words, in that connection, would be utterly senseless. We can take notice that, by custom, there is always given to the initial “W, ” in a connection like the present, the meaning of “west.” Any one familiar with tax books understands this, as well as if the -word “west” were written in full, and this being so, the description is sufficient for all purposes.

Fourth—Some objection is urged that it does not appear that the east side of the described subdivision of the congressional survey was sold. It appears from the record that the north half of the south-east quarter of the north-west quarter, above described, contained only seventeen acres, and that, after judgment and before sale, the amount charged against the east seven acres was paid, so, necessarily, it left to be sold only the ten acres on the west side of the tract. This, we think, appears sufficiently from the memorandum on the judgment record: “E. 7 pd.—Amount paid before sale, §6.60.” But, waiving this, we have seen that the presumption from the deed is, that the sale was conducted in the ‘Sj, manner required by law, and so, necessarily, that the part sold was properly sold, and there is nothing before us to overcome this presumption.

Fifth—It is contended that the notice of the expiration of the time when the right to redeem will expire, is insufficient, in not clearly designating R. Pollock as the purchaser, and also because it omits to state for what year the land was taxed. The notice reads thus:

To whom it may concern:
“You are hereby notified that at a sale of real estate made by the county treasurer at the court house in Paxton, in the county of Ford and State of Illinois, we did, on the 19th day of June, A. D. 1877, purchase the following described real estate for the taxes and costs thereon for the year 1876, and that the time for redeeming said real estate will expire on the 19 fch day‘of June, A. D. 1879, to-wit. ” (Here follows a description of the real estate.) Then the notice proceeds thus: “Als'o, that at the place aforesaid, we did, on the 22d day of June, A. D. 1877, purchase the following real estate, and that the time for redeeming said real estate will expire on the 22d day of June, A. D. 1879, to-wit:
Description - - - - - - - 10 acres
Subdivision of sections W. side, N. S. E. N. W. 10 acres
Section........8
Town - 20
Range..... 10
To whom assessed.....James Mix.
“E. F. Earl, and E. F. Earl, assignee of John P. Day; H. McCulloch, L. Dunlap, R. Pollock, J. S. Fredrick, Chas. Bogardus and E. F. Asay. ”

It is quite apparent that the year for which the property thus described is taxed, is not stated. There is no reference, ■directly or indirectly, after the word “also,” to the word 1876, and the statements with reference to the different tracts of land are as distinct as if they were in different affidavits. The statute provides (sec. 216, Revenue act, Rev. Stat. 1874,) that it shall be stated in this notice when the land or lot was purchased, in whose name taxed, the description of the land ■or lot, for what year taxed or specially assessed, and when the time of redemption will expire. This notice is to be given by the purchaser, or the assignee of the purchaser, but it is not required that it shall describe who was purchaser; and what the statute requires, but no more, it is essential that the notice shall contain. This notice, it will thus be seen,-is defective and insufficient, in omitting to state for what year this land was taxed. It omits also to state to whom it was taxed, but it states that it was assessed to James Mix, which, in that connection, we deem equivalent in meaning.

Sixth—Numerous objections are urged against the sufficiency of the affidavit of compliance with the statute. That these objections may be clearly understood, it will he necessary to repeat the constitutional and statutory provisions under which they are urged.

It is provided by section 5, article 9, of our State constitution, that “the right of redemption from all sales of real estate for the non-payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof. And the General Assembly shall provide, by law, for notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall, in all cases, be served with personal notice before the time of redemption expires.” And it is also provided by section 216, of chapter 120, (Eev. Stat. 1874,) that “hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands or lots for taxes or special assessments, due either to the State or county, or incorporated town or city within the same, or at any sale for taxes or levies authorized by the laws of this State, shall be entitled to a deed for lands or lots so purchased, until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written or partly printed, notice of such purchase, on every person in actual possession or occupancy of such land or lot; also the person in whose name the same was taxed or specially assessed, if, upon diligent inquiry, he or she can be found in the county, * * * at least three months before the expiration of the time of redemption on such sale, in which notice he shall state when he purchased the land or lot, in whose name taxed, the description of the land or lot he has purchased, for what year taxed or specially assessed, and when the time of redemption will expire. If no person is in actual possession or occupancy of such land or lot, and the person in whose name the same was taxed or specially assessed, upon diligent inquiry can not be found in the county, * * * then such person, or his assignee, shall publish such notice in some newspaper printed in such county, * * * which notice shall be inserted three times,—the first time not more than five months, and the last time not less than three months before the time of redemption shall expire.” Then the next section (217) reads as follows: “Every such purchaser or assignee, by himself or agent, shall, before he shall be entitled to a deed, make an affidavit of his having complied with the conditions of the foregoing section, stating particularly the facts relied on as such compliance,—which affidavit shall be delivered to the person authorized by law to execute such tax deed, * * * and which * * * affidavit shall be prima facie evidence that such notic'e has been given. ”

First—It is objected that the description in this affidavit-is too defective to warrant a deed. This objection has been shown, under a point before considered, untenable.

Second—It is contended that the statute makes a distinction between actual possession and occupancy, and that though noque may have been in the actual possession of the land, it-Was in the occupancy of James Mix, upon whom there should have been service of notice. This is not tenable. The words-“possession” and “occupancy,” as used in the 216th section, are clearly convertible, and the word “actual” qualifies each. This would seem sufficiently manifest from the reading of -the-section. It is assumed thereby, that there can be personal service upon the person in possession or occupancy," but if a person may be in possession or occupancy, and yet be beyohd the limits of the State, or where he can not be found, this is impossible. The actual possessor or actual occupant can be personally served, but a person having merely a constructive-possession or a constructive occupancy, may be where it is impossible to make personal service upon him.

Third—It is contended, that if any person was in the actual occupancy or possession at any time before the expiration of the time of redemption, such person is entitled to notice,— that this is the guaranty of the constitution, and the General Assembly can not dispense with it. It will be seen, by reference to the article quoted from the constitution, that the guaranty is, that the right of redemption shall exist in favor of owners and persons interested in such real estate, for a-period of not less than two years from such salesi thereof, and that the General Assembly shall provide, by law, for notice to-be given to the owners or parties interested, of thedact of the-sale of the property, and when the time of redemption shall expire. Clearly, this means that the notice shall be given, before thé time of redemption shall expire, for the plain and manifest purpose is to prevent the right of redemption being cut off without knowledge of the sale and opportunity to redeem to the owner or party interested. Notice, to be of any value, must necessarily be long enough before the expiration of the time of redemption to enable the party to make redemption, and it is evident that, in many cases, the interests of the party would require the lapse of some days, that he might make the requisite arrangement to procure the money wherewith to redeem. The General Assembly not being restricted by the constitution as to the time when it should require the-notice to be given, might, therefore, reasonably provide, as it has, that it should be given three months before the expiration of the time of redemption. Purchasers, and persons otherwise acquiring rights in the property after the giving of such notice, would simply occupy the position of purchasers penclente lite, and be governed by principles applicable to such purchasers. Moreover, a person, to avail of this constitutional provision, must affirmatively bring himself within its letter, for a violation of it can not be presumed. He must affirmatively show that he is an occupant, "within its meaning, which ivas not done here.

Fourth—But an objection is urged that this affidavit is not shown to have been made by the purchaser or his assignee, by himself or agent, and it fails to state, as a fact, that no one was in the actual possession or occupancy of the land. These objections we deem well taken. It has been seen, section 216 requires that the notice shall be served upon the person “in the actual possession or occupancy,” but if no person is “in the actual possession or occupancy, ” notice is to be published. Plainly, these are facts, and not matters of opinion, and a party either knows what the fact is, or he has no actual knowledge. If he knows what the fact is, he must state it. If he has no actual knowledge, he is incompetent to make a statement. The affidavit must be made, also, “by every such purchaser or assignee, by himself or agent.” {See sec. -217.) This affidavit starts out thus: “ J. S. Fred-.l’ick, being duly sworn, ” etc. There is no language anywhere indicating what interest he has in the matter. He signs his name, and, it is true, adds thereafter the word “agent,” but of whom, we are left to conjecture. Its language on the subject of the possession or occupancy of the land is this : “That no person was in actual possession or occupancy of said piece or parcel of land for any period of the time from the date of said sale down to a date not more than three months before the 21st day June, 1879, within the knowledge or belief of this deponent. ” But did the deponent have knowledge upon which to base rational belief ? We are not informed. Might not any stranger, without knowledge at all, have made the same affidavit ? It would seem so.

It is said this precise affidavit was before us, and approved in Frew v. Taylor, 106 Ill. 159. If so, our attention was not arrested by this feature of it, as is manifest from the opinion, and nothing therein said precludes us from now considering it.

Some other objections are urged which we do not deem tenable, nor of sufficient importance to merit discussion.

In conclusion, we have been requested to pass upon the question whether a title obtained after ejectment commenced, is admissible in evidence on behalf of the defendant. It is enough to say, no such question arises upon this record. No error assigned by appellant raises it, and no cross-error is assigned upon behalf of appellee. Any opinion we might express upon it, therefore, would be gratuitous, and not conclusive upon the parties or the court.

For the reasons given, the judgment is reversed and the cause remanded.

J udgment reversed.