Stalford v. Goldring

• Decision Date: 19 June 1902
• Citation: 64 N.E. 395,197 Ill. 156
• Parties: STALFORD et al. v. GOLDRING.
• Court: Illinois Supreme Court

197 Ill. 156

64 N.E. 395

STALFORD et al.

v.GOLDRING.

Supreme Court of Illinois.

June 19, 1902.

Appeal from circuit court, Cook county; E. P. Vail, Judge.

Ejectment by Minerva J. Stalford and others against Mary Goldring. From a judgment for defendant, plaintiffs appeal. Reversed.A. B. Melville and H. E. Long, for appellants.

Altgeld, Darrow & Thompson and Francis S. Wilson, for appellee.

This is an action of ejectment brought by appellants against appellee in the circuit court of Cook county. It appears that in 1836 John C. Phillips and wife conveyed to Clark Hollenback the W. 60 acres of the E. 1/2 of the S. W. 1/4 of section 4, township 37 N. range 14 E. of the third P. M., in Cook county, and that appellee is the heir at law of Clark Hollenback. Upon the trial there was filed an affidavit of plaintiffs' attorney setting forth that plaintiffs claimed title to the premises through a common source with the defendant, namely, through Clark Hollenback, deceased, the ancestor of the plaintiffs. There was no counter affidavit or denial under oath by any one, on behalf of the defendant, of this affidavit of plaintiffs. Appellants also proved title to the said tract by due course of conveyances from the United States. The defendant relied solely upon section 7 of chapter 83, entitled ‘Limitations,’ of the statutes (Hurd's Rev. St. 1899), viz., color of title made in good faith, with payment of all taxes, upon the part claimed by her, for seven successive years, and, to sustain the issues on her part, offered in evidence, as color of title, a deed from James M. Flagg and wife to William J. H. Goldring, dated August, 1868, conveying ‘lots 43, 44, 45, 46, 47, and 48 in block 4 in Flagg & McBride's subdivision of the east half’ of the above 60 acres, which, from the evidence, seemed to cover a tract of ground 125 by 150 feet within the said 60 acres; but no plat was introduced in evidence showing any division or subdivision of the 60-acre tract, and nothing appears to indicate if there was in fact such a subdivision made, or upon what part of the tract appellee's lots are situated, or the size thereof, or any facts upon which their location might be determined. Appellee also offered in evidence tax receipts and extrinsic evidence to show payment of taxes upon the property claimed by her for more than seven successive years. It was admitted upon the trial that Mary Goldring was the sole devisee under the will of the said W. J. H. Goldring, and that the said will had been duly probated in the probate court of Cook county, Illinois. It appears from the record that the entire 60-acre tract of land was an open prairie up to March, 1894, except that on part of it (but the exact part does not appear) there had been fenced in by some person or persons unconnected with either appellants or appellee, and whose identity is not disclosed, some five or ten small plats of ground, not included in the land claimed by appellee. So far as the evidence discloses, up to March, 1894, neither appellants nor their predecessors in title had or claimed to have possession of any part of the 60-acre tract, but during the early part of that month appellants erected a fence around the 60 acres in question, which fence remained for but a short space of time; some of the witnesses putting it at a week, and others at three or four weeks. During this period the fence was torn down several times, and each time appellants again replaced it. In April of the same year, and about a month after the fence was first erected, W. J. H. Goldring moved or built a house upon the property, and took possession of the tract of ground claimed by him. H. E. Long, a representative of appellants, testified that in October, 1895, the following conversation occurred between him and Goldring: ‘I said to him, ‘I represent the heirs of Clark Hollenback, who claim to own this land, and had this land fenced some time the fore part of 1894.’ He said, ‘Yes; there was a fence built there originally clear around this sixty acres, and an officer tore it down about the width of the street on the north side, and I moved these two houses in here.’ I said, ‘Had you ever taken possession of this land that you now claim, before that?’ He said, ‘No sir.’ ‘Did you ever have a house on it before?’ He said, ‘No, sir.’ I then told him, I said, ‘We will have to bring suit to get you off of here unless you will get off peaceably, because we claim to own this land, and at my direction the land was fenced.’ He then said he would not go off the land. I believe I asked him, before he went away, if he had ever built any fences on the land as he claimed they were before that, and he said, ‘No,’ he had not; he never had any possession of any part of it.' The only evidence in the record tending to show possession of Goldring prior to April, 1894, was the testimony of his daughter Mrs. Dean, which was as follows: ‘Q. Did your father ever go out prior to the time he moved on this property, and look at it and walk over it, if you know? I mean, if you ever were with him? A. I have driven out there several times with him as far back as 1876,-Centennial year. We walked all over the ground; picked some flowers,-purple asters. Q. How often did you go out with your father, as near as you can remember? A. Sometimes it would average twice a year,-twice a summer. Q. To the property in question. A. To drive out and around it.’ So far as the record shows, aside from the few lots fenced in, there were no acts of any one indicating possession over this 60-acre tract, except by an occasional squatter, and an unauthorized cutting of grass by one of the witnesses, who was a stranger to the title. Nothing appears in the record to indicate that Goldring, or any one for him, ever removed any crop from the premises; but, on the contrary, the evidence is clear that, aside from the few tracts fenced in, the property was used by the public generally. Upon the trial in the court below, the jury returned the following special findings: ‘Q. Did the plaintiffs, through their agents, H. E. Long and Wesley Hollenback, fence the land mentioned in the declaration? If so, when? A. Yes; March, 1894. Q. Did the defendants, Goldring et al., after the plaintiffs had caused the land mentioned in the declaration to be fenced, move any building onto the land in question, and, if so, when? A. Did not move on, but built on in April, 1894.’The jury also returned a verdict in favor of the appellants as to the whole 60 acres, except the tract claimed by the defendant, Goldring, and found a verdict in favor of the defendant, Goldring, of not guilty, as to the property claimed by her. The court overruled a motion for a new trial and for a judgment non obstante veredicto, and a judgment was afterwards rendered in favor of appellee for such part of the tract so claimed by her, from which judgment this appeal was taken.

RICKS, J. (after stating the facts).

At the close of appellee's evidence, appellants offered an instruction, and requested the court to direct a verdict in favor of appellants, which was refused. At the request of appellants, the court, by appellants' fourteenth instruction, told the jury that if plaintiffs (appellants) fenced or caused to be fenced the land mentioned in the declaration, by building a fence around the same, then such act of fencing was actually taking possession of the land. At the request of appellee, and by instruction 8 in her behalf, the court told the jury that ‘the fact that the plaintiffs built a fence around the entire tract of land will not of itself be conclusive evidence of an actual possession by the plaintiffs; but the jury have a right to take into consideration the length of time the said fence existed, and the acts done by either plaintiffs or defendant after the destruction of said fence, * * * and all the circumstances surrounding the case, in arriving at your verdict as to whether such an act on the part of the plaintiffs was an actual taking possession by them.’ The refusal to give the peremptory instruction directing a verdict for the plaintiffs, and the contentionthat instructions 14 and 8, above mentioned, are irreconcilable, and for that reason reversible error, and that the verdict was contrary to the weight of the evidence, are the principal grounds relied upon by appellants in this case.

Appellee insists that the deed dated July 20, 1836, and recorded March 1, 1837, in the recorder's office in Cook county, Ill., from Charles McNeil to John C. Phillips, the grantor of Charles Hollenback, was fatally defective, for the reason that the same was acknowledged in La Salle county, and was without a certificate of magistracy; and the deed from John C. Phillips to Clark Hollenback, conveying the same premises, dated September 15, 1836, and recorded March 1, 1837, made and acknowledged before a justice of the peace of La Salle county, was also without a certificate of magistracy. An affidavit in proper form was made at the trial, by appellants, that this deed was not in the possession of plaintiffs, or of either of their attorneys; that the same is destroyed, and not within the power of plaintiffs or their attorneys to produce it, and that the recorder's record of said deed was destroyed by fire on October 8 and 9, 1871. Thereupon appellants introduced in evidence the abstract books of Jones & Sellers, containing extracts or minutes from such destroyed records of said deed. Jones & Sellers, at the time the entries therein were made, were engaged in the business of making abstracts of title for others for hire. Such abstract book, after duly showing the material parts of the deed, contains this memorandum: ‘Certif. of ackgt of Jus. Peace, La Salle county, Illinois; has no certif. of magistracy annexed.’ We regard the objection of appellee without merit. At the time of the trial the deed had been a matter of record for 59 years, and was therefore an ancient deed, and there being no...