Bolden v. Sherman

• Court: Illinois Supreme Court
• Writing for the Court: DICKEY
• Citation: Bolden v. Sherman, 110 Ill. 418, 1884 WL 9898 (Ill. 1884)
• Decision Date: 26 March 1884
• Parties: LAFAYETTE BOLDEN et al.v.JAMES D. SHERMAN.

110 Ill. 418

1884 WL 9898 (Ill.)

LAFAYETTE BOLDEN et al.

v.JAMES D. SHERMAN.

Supreme Court of Illinois.

Filed at Ottawa Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

This is an action of ejectment, brought by Sherman, appellee, against Bolden and Stevens, appellants, to recover a strip of land six feet wide in its front on State street, and running eastward 144 feet to an alley, the north line of said strip being 927 feet south of the north line of fractional quarter-section 22,--otherwise described as six feet in width, from front to rear, of the north side of lot 8, in block 10, in assessor's division of the north-west fractional quarter of section 22, etc., and also as being the north six feet in width, along the north side of lot 1, in Gurley's subdivision of said lot 8, and part of lot 7,--the property being in possession of Bolden, as tenant of Stevens, who claims as owner.

Plaintiff proved title in himself to this strip, acquired by him by conveyance from Augustus Garrett, to him, by deed dated August 14, 1847, and recorded November 2, 1847, conveying a tract 110 feet wide, of which this strip was part, and on the north line. But plaintiff never was in the actual possession of this strip of six feet. Defendant proved that Augustus Garrett, at the time of this conveyance to Sherman, was the owner in fee of the land next adjoining the land conveyed to Sherman on the north, for a width of 267 feet, fronting that distance on State street, and extending east to Wabash avenue. The land next north of this he had conveyed to Mrs. Seaman, at an earlier day. Augustus Garrett died about February, 1849, but before his death, inclosed his land with a fence. But the fence on the south side, instead of being placed on the true line between the land of Sherman and that of Garrett, was placed six feet south of that line, and upon the land of Sherman, so as to include this strip within his inclosure. Whether the north line of this inclosure was more than 267 feet north of the fence on the south, does not appear. After the death of Augustus Garrett, the title to this 267 feet of land on State street, next north of Sherman's land, passed, by a decree of court, to his widow, Eliza Garrett. Eliza Garrett died in 1855, or early in 1856, and by her will her executors were clothed with power to sell and convey real estate of the testatrix.

In March, 1856, the executors of Eliza Garrett, for the purposes of sale, made a plat, intended to cover this Garrett tract of 267 feet lying next north of Sherman's land. By that time many parts of the fence of the inclosure made by Augustus Garrett were broken down and gone, but the fence on the south side, though considerably dilapidated, was still there, and the land from this fence to the north was embraced in the plat, and divided into eleven lots, fronting on State street, each extending east to an alley. Lots 1 to 10, inclusive, numbering south from the north of the plat, were laid off 24 feet wide, and lot 11, the most southerly lot, was laid off 27 feet wide, its south line being the fence spoken of. There were no monuments marked upon the plat by which the exact location of the ground, as to its north and south lines, could be ascertained; but witnesses who attended the sale say the marks of the surveyor were still there, and the ground was platted as far south as the fence, the fence being on the south line.

The lots were sold in March, 1856, at a public sale, and Charles Ferren bought lots 10 and 11, at $5100, and received a contract from the executors, by which they contracted to sell the same to him. The description in the contract was: “Commencing at a point on State street 216 feet south of the north-west corner of the land belonging to the estate of said Eliza Garrett, deceased,-- which adjoins the land formerly belonging to Mrs. Ann Seaman, of New York,-- running south 51 feet, thence east 170 feet, thence north 51 feet, thence west 170 feet to the place of beginning, known in a certain plat or subdivision of said property, now in possession of said parties of the first part, as lots 10 and 11, in block 1.” This plat or subdivision was recorded November 14, 1856. This contract was, on November 27, 1856, assigned by Ferren to Stevens, one of appellants, and was filed for record November 28, 1856, and on May 2, 1859, Stevens paid in full the purchase money. Stevens, in 1859, sold to Kate Howard lot 10, and one foot off the north side of lot 11, and she, in 1859, built a brick house upon the property, 25 feet front, on State street. This left 26 feet between the south line of her house and the line of the fence on the south line of the six feet in controversy. On April 5, 1860, the executors who had made this sale, executed a deed to Stevens, by which they conveyed, or professed to convey, the same property to him, and by the very same description used in the contract of Ferren. In October, 1861, Stevens took possession of the 26 feet next south of the Howard property, and built a house upon it, and by himself and his tenants has been in the actual possession of the same ever since. This action was brought October 26, 1880.

On the trial, defendants proved, by the production of tax receipts, the payment of taxes on the south 26 feet of lot 11, Garrett's subdivision, etc., for the year 1861, on May 5, 1862; for the year 1862, on May 7, 1863; for the year 1863, on May 19, 1864; for the year 1864, on December 14, 1864; for the year 1865, on May 1, 1866; for the year 1866, on May 6, 1867; for the year 1867, on June 4, 1868; for the year 1868, on June 12, 1869; and also tax receipts from 1868 to 1879, except for the years 1869 and 1870.

On the trial, plaintiff, Sherman, testified as follows:

Q. “Have you paid the taxes on these premises that were conveyed to you by Mr. Garrett?

A. Yes, sir. I paid them generally by my agent. Jonas M. Small paid the taxes for me for the last eighteen or twenty years. He is dead. I have not possession of all the tax receipts. During the years between 1858 up to 1868, I sometimes paid the taxes, and sometimes Mr. Small paid them. My property was never sold for taxes upon my description, which was a part of the Gurley subdivision.”

Plaintiff produced tax receipts showing payment of the taxes for 1872, paid April 1, 1873; taxes for 1875, paid September 28, 1876; taxes for 1876, paid September 5, 1877.

This is the substance of all the evidence bearing upon the questions discussed in the opinion, save what is therein stated.

Mr. CHAS. H. WOOD, for the appellants:

Under the facts in this case, defendant Stevens purchased by the plat, and the south line of the plat of Garrett's subdivision was the south line of his land. McCormick v. Huse, 78 Ill. 363; Everett v. Boardman, 58 Id. 429; Ambrose v. Raley, Id. 506; Canal Trustees v. Havens, 11 Id. 554.

A constructive adverse possession will extend over the whole of the tract included in the color of title, though part be occupied. Hinchman v. Whetstone, 25 Ill. 185; Jackson v. Camp, 1 Cow. 605; Munro v. Merchant, 28 N. Y. 9; Turney v. Chamberlain, 15 Ill. 271.

This case is analogous to, and should be governed by, the following cases: Hubbard v. Stearns, 86 Ill. 35; Bauer v. Gottmanhausen, 65 Id. 499; Weber v. Anderson, 73 Id. 439; Schneider v. Botsch, 90 Id. 577.

Where owners of adjoining lands build a fence between them upon the assumed boundary line, and each holds and occupies up to it, on his own side, claiming it as the true line, their possession is adverse, and will ripen into a valid title. Burrell v. Burrell, 11 Mass. 297; Stuyvesant v. Tompkins, 9 Johns. 62; Jones v. Smith, 64 N. Y. 180.

The only exclusive effect of what is called “color of title,” in connection with adverse possession, is to define the extent of the possession claimed. Sedgwick & Waite on Trial of Title to Land, sec. 761.

Color of title is defined to be that which in appearance is title, but which in reality is no title. Wright v. Matteson, 18 How. 56; and see, generally, what is color of title,-- Baker v. Swan, 32 Md. 355; Coleman v. Billings, 89 Ill. 190; Kruse v. Wilson, 79 Id. 240; Woodward v. Blanchard, 16 Id. 430; Chandler v. Spear, 22 Vt. 405; Gittens v. Lowry, 15 Ga. 338; Sedgwick & Waite on Trial of Title to Land, sec. 762.

The contract and deed to Stevens both refer, on their face, to the plat of the Garrett subdivision.

Where a plat or map is referred to in a deed, it becomes, for the purpose of identifying the land, as much a part of the deed itself as if incorporated into it. Seaward v. Nalotte, 15 Cal. 306; Vance v. Fore, 24 Id. 436; Davis v. Rainsford, 17 Mass. 207; Lincoln v. Wilder, 29 Maine, 179. Messrs. ROSENTHAL & PENCE, for the...