Hammond v. Doty

• Decision Date: 19 February 1900
• Citation: 56 N.E. 371,184 Ill. 246
• Parties: HAMMOND et al. v. DOTY.
• Court: Illinois Supreme Court

184 Ill. 246

56 N.E. 371

HAMMOND et al.

v.DOTY.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, Second district.

Forcible entry and detainer by Wellington Doty against Robert Hammond and another. From a judgment of the appellate court (84 Ill. App. 19) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

J. M. Hunter, for appellants.

D. S. Berry, for appellee.

This is an action of forcible entry and detainer, brought by the appellee against the appellants, before a justice of the peace, complaining that appellants unlawfully withheld possession of a certain piece of land, described in the complaint as a part of section 30, township 24 north, range 4 east of the fourth principal meridian. Judgment was obtained against appellants before a justice of the peace, from which they took an appeal to the circuit court. In the circuit court the cause was tried before the court and a jury, resulting in a verdict against appellants. From the judgment entered upon the verdict in the circuit court, appellants took an appeal to the appellate court. The appellate court has affirmed the judgment of the circuit court, and the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

Appellants complain that certain proof offered by them was rejected upon the trial of the case. The object of the proof so offered was to show that the lands in controversy were located within the meander lines of what is designated as ‘Dyson's Lake,’ in sections 30 and 31 in said township. Appellants claim that the lands in question, being within the meandered lines of said lake, did not belong to the appellee, but that the title thereto was held by the state in trust for the people. Trustees v. Schroll, 120 Ill. 509, 12 N. E. 243;Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286. We are of the opinion that the court below committed no error in refusing to receive the evidence which appellants thus sought to introduce. In an action of forcible entry and detainer only the immediate right of possession is involved, and the title to the premises cannot be called in question. The question of title in this action cannot be considered by the jury. Phelps v. Randolph, 147 Ill. 335, 35 N. E. 243;McDole v. Shepardson, 156 Ill. 383, 40 N. E. 953. Indeed, the instructionsasked by both parties in this case announce the proposition that in the present action the title to the property is not involved. The material question for the jury to determine was whether, in fact, at the time alleged, the appellee was in the actual, peaceable possession of the premises in question, and whether the defendants below (the appellants here) entered upon such possession against the will of the appellee (the plaintiff below), and retained such possession. The jury was properly instructed upon this question. They found in favor of the appellee, and the judgment of the circuit court, based upon their verdict, has been affirmed by the appellate court. The question of fact as to which the jury were thus instructed has been determined in appellee's favor by the lower courts, and their action in this regard is binding upon us.

The evidence tends to show that one Timothy Doty, father of the appellee, took exclusive possession of the land in question, and that he and his tenants were in exclusive possession thereof from 1876 up to November 18, 1897. At the latter date the fences on the west and south sides of the tract were taken away by the appellants, who have since been in possession of the land. The proof also shows that the appellee took possession of the land on March 1, 1895, as the tenant of the widow and heirs of Timothy Doty, deceased, and remained in actual and undisputed possession thereof until June 12, 1897. On that date appellants came upon the land, and with force and violence attempted to oust appellee and the tenants thereon, and to put up fences of their own upon the land; but, after some quarreling with appellee, appellants desisted from the attempt so made, and went...