Sheetz v. Sweeney

• Decision Date: 22 January 1891
• Citation: 26 N.E. 648,136 Ill. 336
• Parties: SHEETZ v. SWEENEY.
• Court: Illinois Supreme Court

136 Ill. 336

26 N.E. 648

SHEETZ

v.SWEENEY.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Error to circuit court, Stephenson county: JAMES H. CARTWRIGHT, Judge.U. D. Meacham, for plaintiff in error.

James I. Neff, J. H. Stearns, and George L. Munn, for defendant in error.

Plaintiff in error, Cyrus A. Sheetz, brought ejectment to recover of defendant, Dennis Sweeney, a tract of land described as follows: ‘Commencing 4 78-100 chains east of the N. W. corner of section 32, T. 27 N., R. 8 E. of the 4th P. M., in Stephenson county; thence south 9 chains and 91 lengths; thence south, 40 degrees east, 29 feet, to a fence running north and south, built by one M. S. O'Brien; thence north, on and along the line of such fence built by the said M. S. O'Brien, and one built by the defendant, Sweeney, to the north line of said section 6, west 25 feet, to the place of beginning.’ Plea not guilty. Plaintiff read in evidence a deed from William O. Wright and wife to the defendant, conveying one two-acre tract and one four-acre tract; the first or two-acre tract lying west of the four-acre tract. It is conceded that the strip of land in controversy was included in the four-acre piece so conveyed to defendant by said Wright. Plaintiff then offered in evidence the following deeds: First. From defendant and wife to Mortimer S. O'Brien, dated May 20, 1873, recorded same day, purporting to convey, by the following description, two acres of said four-acre tract, that is to say: ‘Commencing on the north side of section 32, township 27 N., R. 8 E. 4th P. M., as follows, to-wit: 4 chains and 78 links east of the N. W. corner of said section; thence south 9 chains and 91 links; thence east, 40 degrees south, 2 chains and 86 links; thence north 10 chains and 84 links; thence west, to the place of begining, 2 chains and 3 links,-containing two acres, more or less.’ This deed contains the following statement: ‘This deed is made to correct the deed between the same parties dated Dec. 7, 1867, and recorded in Book 47 of Deeds, page 430.' Second. Deed from defendant and wife to said Brown, purporting to convey two acres, more or less, by the following description: ‘Commencing on the north side of section 32, township 27 north, R. 8 E. 3d P. M., 4 chains and 78 links east of the N. W. corner of said section; thence north 9 chains and 91 links; thence north, 40 degrees east, 2 chains and 86 links; thence south 10 chains and 84 links; thence west, to the place of beginning, two chains and three links,-containing two acres, more or less.’ Third. Trust-deed from said M. S. O'Brien and wife to Oscar Taylor, trustee, etc., dated May 19, 1873. Also trustees' deed from Oscar Taylor, trustee, etc., to the plaintiff, dated 17th day of April, 1882; each of which last-mentioned deeds described the land as follows: ‘Commencing on the north side of section 32, town 27, range 8 east of the 4th P. M., 4 chains and 78 links east of the N. W. corner of said section; thence runing south 9 chains and 91 links; thence running south, 40 degrees east, two chains and 86 links; thence north 10 chains and 84 links; thence west to the place of beginning,-containing two acres, more or less.’ Each of said deeds was objected to generally and specifically, for the reason that they did not describe the land set forth in the declaration, and that the description therein was void for uncertainty. A number of witnesses were examined, whose testimony is sufficiently noticed in the opinion of the court. Verdict and judgment for defendant. Plaintiff below prosecutes this appeal, and both parties assign errors.

SHOPE, J., ( after stating the facts as above.)

The cross-errors assigned question the correctness of the rulings of the trial court in the admission of the deeds introduced by the plaintiff in error, subsequent to the first from Wright to Sweeney, defendant. It is by no means clear that the description in these deeds is sufficient to make a valid conveyance of the land, but it is clear that if the boundaries designated in the deeds close, so as to make a valid description, that all of the claimed land in the declaration is not described in the deeds. But as the judgment must be affirmed upon other grounds, determining against the right of recovery by the plaintiff of any portion of the land, we do not deem it necessary to discuss or determine the questions thus raised.

It appears from the evidence that some time prior to 1864 William O. Wright, who is the common source of title, owned the land in controversy with other adjacent lands. In that year Wright conveyed to the defendant two acres of land situated in the north-west corner of section 32, township 27 N., range 8 E., by metes and bounds; and shortly thereafter defendant bargained with the said Wright, through his agent, Atkinson, for a tract of four acres of land, adjoining on the east said two acres previously conveyed to defendant. On the 3d day of September, 1867, a deed to the four-acre tract was made by Wright and wife to Sweeney, defendant, the description of which will be found in the foregoing statement. The proof tends to show that, in the purchase of the four acres, Mortimer S. O'Brien was joined with defendant, and that he (O'Brien) paid one-half of the purchase price to Wright. About three months after the execution of the deed from Wright to Sweeney,-that is, on the 7th day of December, 1867,-Sweeney and wife attempted by their deed to convey two out of the four acres to O'Brien, which was abortive, for the reason that the land therein described, as we have before seen, would be situated upon the section north of said section 32, instead of upon that section. It is substantially agreed that prior to the making of this deed, and perhaps prior to obtaining the deed from Wright, it was agreed between O'Brien and Sweeney that Sweeney should take of the four-acre tract one acre lying next to his two-acre tract, which he had previously purchased of Wright as before mentioned, and that O'Brien should take the next two acres, and that Sweeney should have the remaining acre lying on the east of O'Brien's, and...