Stumpf v. Osterhage

• Decision Date: 27 September 1884
• Citation: 111 Ill. 82,1884 WL 9934
• Parties: PHILLIP STUMPF et al.v.CHARLES OSTERHAGE
• Court: Illinois Supreme Court

111 Ill. 82

1884 WL 9934 (Ill.)

PHILLIP STUMPF et al.

v.CHARLES OSTERHAGE

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 27, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Monroe county; the Hon. AMOS WATTS, Judge, presiding.

This was an action of ejectment, brought by Charles Osterhage, against John Stumpf. A trial was had at the September term, 1873, and a verdict returned for the defendant. A new trial was granted, and the cause again tried at the March term, 1874, resulting in a verdict for the plaintiff, and a new trial granted. At the September term, 1875, a trial was had, and a verdict found for the plaintiff, and a new trial granted. At the September term, 1876, another trial was had, resulting in a verdict for the plaintiff, on which judgment was rendered at the special December term, 1876. This judgment was reversed by this court, and the cause remanded. The death of the defendant was suggested, and his heirs made parties, and the declaration amended. At the March term, 1882, the cause was again tried, resulting in a verdict and judgment for the plaintiff, to reverse which this writ of error is brought.

It was agreed that the land in suit is part of survey 410, claim 672, and that both parties claim title through Leonard Harness, who left the whole claim, undivided, to his three daughters,--Kate, Sally and Mary. The tract contained four hundred and thirty-two acres. On the trial, plaintiff proved, by Anna Clover, the marriage and death of Kate Harness, and other matters relating to the family, such as heirship, etc., and the division and subsequent occupancy of the land.

The defendants offered in evidence a certified copy of a deed from Sally Harness, in the words following: “Know all men by these presents, that I, Sally Harness, one of the heirs of Leonard Harness, deceased, have, for and in consideration of a bond for a deed this day made by Jacob Clover and William Clover, to me, of one hundred and thirty acres of good, first-rate land, have relinquished all other claim to the lands of the said deceased as an heir, and by these presents, if the said bond is complied with on the part of the signers, to-wit, Jacob Clover and William Clover, I will have no other demand on the land, as aforementioned.

In testimony whereof I have hereunto set my hand and seal this 8th day of February, 1810.

SALLY HARNESS. [Seal.]”

This instrument was acknowledged before a justice of the peace. On objection by the plaintiff, the court refused to admit it in evidence.

Defendant next offered in evidence a deed reading as follows:

“Know all men by these presents, that we, William Clover, in my own right, and as guardian of Joseph Harness and Polly Harness, do release and forever quitclaim to that tract and messuage of land in the county of St. Clair, Illinois territory, on which Jacob Clover now lives, to the said Jacob Clover, in consideration of $400 to us in hand paid before the delivery of this deed, which said tract contains four hundred acres, more or less.

“Signed, sealed and delivered this 28th day of December, 1811.

WILLIAM his X mark. CLOVER, [Seal.]

WILLIAM his X mark. CLOVER, [Seal.]

Guardian of Polly and Joseph Harness.

This was also acknowledged before a justice of the peace. The court, on objection being made, refused to receive the same. The defendant offered in evidence a copy of the will of Jacob Clover, containing this devise, only:

“I do by these presents give, demise and bequeath unto my wife, Catharine, all and singular my estate, real and personal, money, goods, chattels, rights and credits, of whatever nature or kind soever that unto me belongeth, for and during her lifetime, the same to be at her disposal and use, so long as she shall live. Then, after the decease of my wife, Catharine, it is my will that all the children of mine have my personal estate divided in equal portions among them. But it is my will that my real estate go and be divided to all my sons, only, in equal portions amongst them, for it is my will that my daughters have no share in my lands, but that it be divided, as above stated, in equal portions amongst them, all my sons, as they may attain the age of twenty-one years of age. I mean, and I wish it fully understood, that it is my will and desire that my sons have my lands all divided in equal portions amongst them as they come to the age of twenty-one years, notwithstanding they may come to the … of twenty-one before the decease of my wife, Catharine,--she, my wife, still to have the use of the portions of land of my younger sons until they arrive at the age of twenty-one, aforesaid.

I do now publish this my testament and last will, hereby revoking and amending all others. In testimony whereof I have hereunto set my hand and seal this sixth day of March, in the year of our Lord 1821.”

The other material facts are stated in the opinion of the court.

Messrs. SLATE, TALBOTT & MICHAN, for the plaintiffs in error.

Mr. JOSEPH W. RICKERT, and Mr. SPENCER TOMPKINS, for the defendant in error. Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This is ejectment for a certain tract of land, part of a larger tract, described as claim No. 572, survey No. 410, in Monroe county. Both parties concede that the claim belonged to Leonard Harness in his lifetime, and that upon his death it descended to his three daughters,--Kate, Sally and Mary. There is proof tending to show that in 1810 they made between themselves a parol partition of the claim, whereby they allotted and set apart the northern part to Kate, the middle part to Sally, and the southern part to Mary, and that each took actual and immediate possession of the part so allotted and set apart to her. A small creek runs in a westerly course through the claim, entering its eastern boundary twenty-eight chains and four links south of the north-east corner, and passing out at a point on its western boundary ten chains and eighteen links south of the north-west corner. After entering the claim on the eastern boundary, the creek bears north of west for a short distance, then turns sharply to the south, and runs a little west of south for a short distance, then again turns and runs nearly west for a short distance, and then again turns and meanders in a northwesterly direction to the west boundary line. The plaintiff below, and defendant in...