Winstanley v. William Meacham.

• Citation: 1871 WL 7871,58 Ill. 97
• Parties: THOMAS WINSTANLEYv.WILLIAM MEACHAM.
• Decision Date: 31 January 1871
• Court: Supreme Court of Illinois

58 Ill. 97

1871 WL 7871 (Ill.)

THOMAS WINSTANLEY

v.WILLIAM MEACHAM.

Supreme Court of Illinois.

January Term, 1871.

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action of ejectment brought by William Meacham, in the Circuit Court of St. Clair county, against Thomas Winstanley, for the undivided fourth of the E. 1/2 S. E. qr. sec. 28, town 2, north range 9 west. The case was tried by the court by consent of parties. Plaintiff claimed title as one of the heirs of Berry Meacham, deceased. Evidence of heirship was introduced, and a patent from the United States government to Berry Meacham, from whom plaintiff claimed to inherit his interest in the land.

Defendant offered in evidence a tax deed for the land, executed by the sheriff of the county, to prove claim and color of title, but it was rejected, on the ground that it was not properly acknowledged, and because a judgment and precept were not produced. Defendant then offered to prove that one Hughes paid all the taxes from the date of the tax deed until the 1st of May, 1857, full seven years, and that Hughes, on the sixth of that month, conveyed the land to one McClintock, and that he paid all taxes from May 1st, 1857, till March 22, 1862, and that McClintock, on the last date, conveyed the premises to defendant, and that he had paid all taxes from the time of his purchase till the trial, but the court rejected this evidence. The court rendered judgment in favor of the plaintiff, from which defendant has appealed to this court.

Messrs. SNYDER & DILL, for the appellant.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The appellee has filed no brief in this case, and under the recent rules, this judgment for that reason alone could have been reversed. We do not propose to discuss the case at any length on its merits. There is, however, manifest error in the record for which the judgment will have to be reversed.

The appellee, in his declaration, claims an undivided one-fourth interest in the premises in controversy in fee simple. This was a material averment, and it was necessary for the appellee to prove it as alleged. A party can not claim in his declaration in ejectment an entire estate, and recover on the evidence an undivided interest in that estate. He can not recover a different estate from that which he claims. But if he declares for the whole premises, he may recover for a distinct part; or, if he declares for an undivided share he may recover that share in any part of the premises. If he declares for an undivided one-fourth interest, he can not recover an undivided one-third interest in the premises. A party is bound by the allegations of his declaration, and can not recover a different estate from that which he has alleged. Ballance v. Rankin, 12 Ill. 420; Rupert v. Mark, 15 Ill. 540.

The appellee claims to derive his title from Berry Meacham, as one of his heirs at law. The evidence as to the number of heirs entitled to share in the estate of Berry Meacham is very indistinct. The impression that the evidence makes on our minds is, that Meacham only left three children and their descendants as his heirs at law. It certainly does not affirmatively appear that there were four heirs. If there were not four heirs, or representatives of such heirs, then there would be a...