Coleman v. John Doe Ex. Dem. William Henderson Et. Al.

• Decision Date: 30 June 1840
• Citation: 2 Scam. 251,3 Ill. 251,1840 WL 2906
• Parties: JOHN COLEMAN,v.JOHN DOE ex. dem. WILLIAM HENDERSON et. al.
• Court: Illinois Supreme Court

2 Scam. 251

3 Ill. 251

1840 WL 2906 (Ill.)

JOHN COLEMAN,

v.JOHN DOE ex. dem. WILLIAM HENDERSON et. al.

Supreme Court of Illinois.

June Term, 1840.

THIS cause was tried in the court below at the November term, 1839, before the Hon. Peter Lott and a jury. A verdict was rendered for the plaintiff, upon which the court rendered judgment, “that the plaintiff recover from the defendant his said term, in the said declaration mentioned, unexpired and to come, &c., and that a writ of habere facias possessionem be awarded him,” &c. The defendant appealed to this court.

S. T. LOGAN, for the appellant.

CYRUS WALKER, for the appellee.

LOCKWOOD, justice, delivered the opinion of the court:

This was an action of ejectment commenced by the plaintiff, on demises from William Henderson and several others, against Coleman for the recovery of the northwest quarter of section 26, in T. 7 N., of R. 4 E. of the fourth principal meridian, containing one hundred and sixty acres of land. The defendant pleaded not guilty. On the trial of the cause, the lessors of the plaintiff read in evidence, to the jury, a patent from the United States to William Henderson, for the lot in question, and proved that Coleman, at the time of the commencement of the suit, was in possession of seventy-three acres of said land, off the north part.

It is unnecessary to state what is contained in the bill of exceptions in relation to evidence overruled, instructions asked and refused, and exceptions to instructions given, as they only relate to two points, that is, in relation to the death of Henderson, one of the lessors of the plaintiff, and to the point whether, on proof that the defendant was in possession of only seventy-three acres, the plaintiff was entitled to recover at all, and if so, whether the verdict must not be restricted to the land actually proved to be in possession of the defendant below.

On the first point, we are of opinion, that all testimony in relation to the death of Henderson, or whether such a person ever existed, was irrelevant. The plaintiff in the action is John Doe, and the death of one or more, or all of the lessors of the plaintiff, after the commencement of the suit, would not abate the action. (Tillinghast's Adams on Ejectment, 288.)

This principle settles the question, that all proof on the trial, in relation to the death of Henderson, was irrelevant, and correctly overruled. Should an action of ejectment be commenced on a demise from a deceased person, the proper course would be to apply to the court below, on affidavit, to strike from the declaration such demise. ¹

The other point made in this case is without merit. The verdict, although a general one, could only affect the defendant below to the extent of his possession. The effect of a recovery in ejectment is correctly stated by Lord Mansfield, in the case of Ulyss v. Horde. (1 Burr. 114.) A judgment in ejectment, says that learned judge, “is a recovery of the possession (not of the seisin or freehold) without prejudice to the right, as it may afterwards appear, that was between ...