Sonnemann v. Mertz
| Decision Date | 17 April 1906 |
| Citation | 77 N.E. 550,221 Ill. 362 |
| Parties | SONNEMANN v. MERTZ et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Fayette County; Truman E. Ames, Judge.
Action by Emma C. Sonnemann against Anna Mertz and others. Judgment in favor of plaintiff, and defendants bring error. Reversed.
Albert & Roe, for plaintiff in error.
Brown, Burnside & Bullington, for defendants in error.
Plaintiff in error brought suit in ejectment in the circuit court of Fayette county against defendants in error for the possession of the N. W. 1/4 of the N. E. 1/4 of section 19, town 6, range 2, in said county, and by her declaration claimed title in fee. The defendants disclaimed as to all of said tract except the part lying west of a rail fence running in a north and south direction near the division line between that tract and the land west of it, and pleaded not guilty of unlawfully withholding said part west of the rail fence. There was a trial by jury, resulting in a verdict finding the defendants not guilty. The court, after overruling motions for a new trial and in arrest of judgment, entered judgment on the verdict, and the record is brought here by writ of error.
Jackson Dewald was the common source of title, and plaintiff proved title in herself to the 40-acre tract by a deed to William J. Dewald, one of the heirs of Jackson Dewald, from the other heirs, and a deed from William J. Dewald to her. There was no evidence tending to overcome the proof of title made by the plaintiff, and defendants did not show any title in themselves, but claimed title to the adjoining lands on the west through Dora Surber, one of the heirs of Jackson Dewald. It was proved that the fence was not on the west line of plaintiff's land. It was built by Jackson Dewald when he owned the lands on both sides of said line, and it did not run directly north and south. From the south line of the 40-acre tract now owned by plaintiff it ran northward, diverging somewhat toward the east, so as to leave a wedge-shaped piece of land between it and the west line of the tract. When the controversy arose which resulted in the suit, the defendant Wellington Mertz said that he thought they ought to have a surveyor to find out where the line was. The plaintiff employed one surveyor and defendants another, and they differed as to the location of the line, but neither surveyor found the line to be where the fence was. According to defendants' surveyor, the line was somewhere near the fence at the south end, and, as it diverged toward the east, a wedgeshaped piece was left between it and the line. According to plaintiff's surveyor, the boundary line was still further west, and the difference seems to have arisen from the fact that plaintiff's surveyor followed the government field notes, while the other surveyor followed the pocket field notes of a former surveyor, in which the government filed notes giving the distance from the northwest corner of the section had been increased one chain by altering the figures. The only defense made was that there was an agreement between the heirs of Jackson Dewald as to the location of the boundary line which was binding on the plaintiff.
The evidence tended to prove that after the death of Jackson Dewald his five heirs at law undertook to divide the land which they inherited from him. It was located in a fractional section, and there was as a matter of fact a surplus to be divided between the different subdivisions. According to their understanding of the amount of land to be divided, William J. Dewald was entitled to 26 1/2 acres, and they borrowed an old chain which belonged to a surveyor, from which two links were missing, and measured off of the east side of the 40-acre tract in question 26 1/2 acres, as they understood it, for his share. Dora Surber, another of the heirs, was allowed 26 1/2 acres off the east side of the land west of the 40, which would leave 14 1/2 acres between the two. The parties measured to where they supposed the west line of the 40-acre tract was, and drove a stub and set some stakes where they supposed the line was. They agreed to the division or partition, and Dora Surber, who took the 26 1/2 acres on the west, testified that it was agreed that the dividing line should be along the old fence at the south end and a little west of it at the north end, which took in a row of trees in the old orchard. William J. Dewald bought from the other heirs...
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