Crowell v. Maughs

The Opinion of the Court was delivered by Treat, J.* This was an action of ejectment commenced in the Jo Daviess Circuit Court, by Maughs against Crowell, for the recovery of lot thirty one, in the city of Galena. On the calling of the cause for trial, James Bennett presented a petition praying for a change of venue out of the Circuit, on account of the prejudice of the Judge. The petition alleged that Crowell was in the possession of the premises in question under a lease made by the petitioner, as the trustee of James Bennett, Jr. the real owner. The Court denied the application, to which the defendant excepted. The cause was then submitted to a jury for trial. After .the plaintiff had shown title to the premises, by virtue of a purchase from the United States in 1838, the defendant offered to prove, that in 1835, the plaintiff and James Bennett being the occupants and claimants of adjoining lots, by a parol agreement, established a line between them, which was thereafter to be the boundary; that subsequently, Bennett built a house on his lot directly up to the line, - which house was on the premises in dispute; and that the plaintiff, from the time the line was agreed on, had acquiesced in the same. This evidence was objected to by the plaintiff, and excluded by the Court; to which decision the defendant excepted. The jury found a verdict for the plaintiff, and judgment was rendered thereon. Crowell prosecutes an appeal, and assigns for error, the decision of the Circuit Court overruling the motion for a change of venue. There was no error in that decision. The application was not made by the defendant, but by a third person representing himself to be the trustee of an alleged owner of the premises in controversy. Our statute only authorizes the parties to obtain a change of venue. The application must be made by a party to the record, and the petition must be verified by his affidavit. The statute does not include persons out of the record, nor allow them to swear to the petition as agents or otherwise. . It is to be feared that this statute has been frequently perverted, to the great detriment of suitors, and its provisions ought not to be extended by implication, so as to embrace persons not specifically named therein. Any other construction would lead to much inconvenience and mischief. A decision, that this application was properly made, would lay down the rule that any person, who alleged that his rights were to be affected by the determination of the case, might interfere and obtain a change of venue. The decision of the Circuit Court excluding the evidence offered by Crowell, is also assigned for error. It is a familiar doctrine of the law, that the title to real estate cannot be transferred by parol. It is equally forbidden, by the principles of the common law, and the express provisions of the Statute of Frauds. It is settled, however, that the proprietors of adjoining tracts of land may, by .a parol agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may be binding on the parties, not because it passes title, but because it determines the' location where the estate of each is supposed to exist. Jackson v. Dysling, 2 Caines, 198; Kip v. Norton, 12 Wend. 127. It is insisted by the counsel for the appellant, that this principle is applicable to the present case. We think otherwise. At the time the agreement was made, the premises were the exclusive property of the United States. Neither of the parties had any title. They were mere tenants at sufferance, incapable of making any binding agreement respecting the lots, but what related to their temporary possession. The agreement, ex necessitate, could not. extend beyond the mere occupancy.. It was inoperative as against the proprietor, and ceased to be binding on the parties the the moment the title passed out of the Government. On the purchase of the premises by Maughs, he succeeded to the whole legal estate, unaffected by any previous parol agreement respecting the possession. The judgment of the Circuit Court is affirmed, with costs. Judgment affirmed. Footnotes [*] Wilson, C. J., did not sit in this case.