Winslow v. Cooper

• Decision Date: 28 September 1882
• Citation: 104 Ill. 235,1882 WL 10400
• Parties: JANE WINSLOWv.NANCY COOPER.
• Court: Illinois Supreme Court

104 Ill. 235

1882 WL 10400 (Ill.)

JANE WINSLOW

v.NANCY COOPER.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. FRANKLIN BLADES, Judge, presiding.

Mr. WM. E. HUGHES, and Mr. B. D. LUCAS, for the appellant:

The admissions and declarations as to the boundaries of land, made by a former owner, are proper evidence. Jackson v. McCall, 10 Johns. 377; Doggett v. Shaw, 5 Metc. 223; Van Deusen v. Turner, 12 Pick. 522; Orr v. Hadley, 36 N. H. 575; Ware v. Brookhouse, 7 Gray, 454; Wood v. Foster, 8 Allen, 24; Sullivan County v. Gordon, 57 Me. 522; Wood v. Willard, 37 Vt. 377; Smith v. Powers, 15 N. H. 546.

Appellee is estopped from asserting title to the strip of land, by her agreement or plat under seal. There is no pretense made that at the time Mrs. Cooper executed this certificate in Mr. Ela's office, she imposed any conditions as to its delivery. Not having done so, the certificate, deed, sealed agreement, indenture,--call it what you will,--took effect then and there. Where a party executes a deed which is left with an agent, or in the hands of a third party, this will amount to a delivery. Henrichsen v. Hodgen, 67 Ill. 179; Rawson v. Fox, 65 Id. 200. And the subsequent assent of the grantee to receive it, renders it operative. Kingsbury v. Burnside, 58 Ill. 310; Dale v. Lincoln, 62 Id. 22.

The plat is good inter partes, without being acknowledged and recorded. Semple v. Miller, 2 Scam. 315; Bowman v. Wettig, 39 Ill. 416.

When lines are laid down on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on such plan are to be as much regarded as the true description of the land conveyed as they would be if expressly recited in the deed. Davis v. Ramsford, 17 Mass. 207; Magoun v. Lapham, 21 Pick. (Mass.) 135; Blaney v. Rice, 20 Id. 62.

If parties to a deed bound the land conveyed upon a street, they are, in an action concerning the boundary of the land, estopped to deny the existence of the street. Parker v. Smith, 17 Mass. 413.

So, too, where the land is bounded on a private way not defined in the deed, but shown on a plan referred to therein. Fox v. Union Sugar Refinery, 100 Mass. 292; Morgan v. Moore, 3 Gray, 319; Lunt v. Holland, 14 Mass. 149; Davis v. Ramsford, 17 Id. 207; Parker v. Bennett, 11 Allen, 388; Murdock v. Chapman, 9 Gray, 156.

Appellee is estopped from asserting title to the land by matters in pais. The rule is well settled that an estoppel in pais can be shown in ejectment suits in this State. Noble v. Chrisman, 88 Ill. 186.

Mr. C. RAYBURN, and Mr. IRA J. BLOOMFIELD, for the appellee:

Appellee had seven consecutive years' possession under color of title, and paid all taxes assessed during that time. The description in the tax receipts, in connection with the other evidence, is not void for uncertainty. Blakely v. Bestor, 13 Ill. 708; Enslow v. Kennicott, 46 Id. 187; Chiniquy v. People, 78 Id. 578.

The receipts, with the other evidence, are sufficient to satisfy the mind of any reasonable man on what land the taxes were paid, and that is all the law requires. 80 Ill. 268; 93 id. 116; 101 id. 349.

The declarations of a deceased owner as to landmarks or boundaries, if disinterested, are admissible even in favor of those claiming under him; but as to title, refusal to sell, or the intended use of the property, they are inadmissible.

An estoppel in pais that will transfer title to real estate can not be enforced in a court of law, and there is no estoppel by deed in this case. Mills v. Graves, 38 Ill. 456; Blake v. Fash, 44 Id. 302; Livingston v. Hayes, 34 Mich. 384; 102 Ill. 514.

Making and recording a plat will serve to dedicate streets and alleys to the public. The Statute of Frauds does not apply to such a conveyance of land, and a dedication may be made by parol, but not transfers between private individuals. Crowell v. Maughs, 2 Gilm. 422.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was ejectment by appellant, against appellee, for a certain strip of ground, some four and a half feet in width and sixty feet in depth, in the city of Bloomington. The proof shows that on the 23d of September, 1864, Gridley and wife conveyed, by quitclaim deed, to appellee, a parcel of ground, which includes the strip in controversy. This constituted color of title, and the principal questions discussed in argument relate to the sufficiency of the evidence to show possession and payment of taxes by appellee, under this color of title, for seven successive years. There is a sharp controversy in the testimony of different witnesses with regard to the question of possession, but we are unable to say the court below clearly erred in finding the preponderance to be with appellee. A number of witnesses testify that a fence was built, as early as 1840, on the south line, substantially, of the strip in controversy, and that appellee was in possession, under her deed, of the ground north of that fence, so as to include the strip in controversy, from the date of her deed until the commencement of the suit, continuously. The number of those who thus support appellee's claim of possession is greater than that of those who controvert it, and from what is before us it is impossible for us to say that the latter show any marked superiority, in respect of fairness or intelligence, over the former.

Appellant's counsel, however, contend that appellee is equitably estopped to claim the strip in controversy, for two reasons: First, on the 28th of July, 1880, she, jointly with other adjacent property holders, signed and acknowledged a plat, made for the purpose of more definitely describing her property, and that adjacent thereto, by numbers, for conveyance and taxation, and in that plat the strip in controversy was marked as belonging to appellant; second, just before James P. Hodge sold to appellant, himself and two brothers went through the alley which includes the strip in controversy, and when in front of appellee's they asked appellee how far down south her land went, to which she replied that it went down to the picket fence on Madison street,--and this, it is understood, does not include the strip in controversy. It would seem a sufficient answer to this, that estoppels in pais affecting permanent interests in land can only be made available in a court of equity. St. Louis Stock Yards v. Wiggins Ferry Co. 102 Ill. 514; Wales v. Bogue, 31 Id. 464; Mills v. Graves, 38 Id. 466; Blake v. Fash, 44 Id. 302. But indispensable elements of an estoppel in pais are wanting. It is not shown the declarations were made with knowledge of the facts, or with the intention they would be acted upon, or that they were in fact acted upon, ( Mayer v. Erhardt, 88 Ill. 452, People v. Brown, 67 Id. 435, Flower v. Elwood, 66 Id. 438, Knoebel v. Kircher, 33 Id. 308, and Ball v. Hooten, 85 Id. 159,) and so it is equally insufficient to arrest the running of the Statute of Limitations, as contended by counsel, as to pass a legal title. This is undoubtedly competent evidence on the fact of possession under color and claim of title, but nothing more. If appellee admitted that her property did not include the strip in controversy, it was the strongest of evidence that she was not in possession of it under color and claim of title. But in order that such evidence shall be of any value, it ought to appear that it was made with full knowledge of her rights, and deliberately. If hastily made, and in ignorance of her rights, it amounts to nothing, and in all such cases, in weighing the evidence the jury should take all the circumstances throwing light on the admission into consideration.

The plat here was made by Ela, the county surveyor, at the instance of parties other than appellee. Her attention had not been directed to the subject until she was requested to sign it, and when she did sign it she says her attention was directed to other matters, and Ela did not call her attention to the particular effect of it. Whether in this latter statement she is entirely accurate, the circumstances were certainly not favorable to mature reflection, especially for an ignorant and uneducated person, as she was. She shows,--and in this is uncontradicted,--that a large political meeting was being held. She was engaged in preparing a dinner for a number of those in attendance, and was also interesting herself in raising money for her church. In the discharge of these two-fold duties it became necessary to pass Ela's door, and when about to do so she stepped into his room to ask him to make a subscription in aid of her church, when he presented the plat for her signature, and she signed it. On subsequent reflection she became dissatisfied with having signed the plat, and next morning requested Ela to take her name from it. He proceeded no further with the plat, and there is no pretense that appellant, or any one else, has ever been led to act in a way they would not otherwise have acted, upon the faith of appellee's signature. To take this party's property away, or to close her mouth as to the truth in regard to the title, because of such an act, would bring the law into just and great reproach. What the truth was in regard to this line, and whether appellee knowingly and deliberately signed this plat, were proper questions for the jury, and upon which they have passed after hearing all the evidence that could be adduced on either side, and no artificial rule of law compelled them to believe in regard to it contrary to their senses.

The conversation with the Hodges is not recollected by appellee as it is by them. She says she was talking about the line back of her lot and east of her house, and not about the line south of her lot. The conversation, at best, appears to have been but casual. Appellee was not doing, nor required to do, any act in regard to her property, and it does not appear that she was apprized that...