Truesdale v. Ford

Mr. Chief Justice Walker delivered the opinion of the court : This was an action of ejectment, for the recovery of a lot of ground in the city of Peoria. There is no dispute of the fact, that the title, at one time, was in George Oakley ; and both parties claim to derive title from him. Appellant, through a deed executed by him to Howland, dated the 2d day of April, 1849, but not recorded until the 5th day of September, 1855. Hext, a deed from How-land to Charles Ballanee, dated the 24th day of April, 1849, and recorded the 15th of June, 1855. And lastly, a lease from Ballanee to himself, dated the 1st day of December, 1855. Appellee claims title under a deed of conveyance from Oakley to one McGinity, dated the 13th of June, 1855, and recorded the 15th day of the same month. Also a deed from McGinity to himself, dated the 1st day of August, 1857, but never recorded. It thus appears, that the deed from Oakley to McGinity was recorded before the deed from Oakley to Howland. To avoid the effect of the prior record of the deed to McGinity, appellant introduced evidence tending to shew that Ballanee leased the lot to Sweeney, Ham & Co., and afterwards to Sweeney & Littleton, who owned a saw and planing, mill, and a sash factory on a lot across a street and opposite the premises in controversy as early as in the year 1850 or 1851, and that they used the lot for the purpose of piling saw logs, lumber and other material iu connection with the mill. And it is insisted that this was such possession as put McGinity, and all others dealing with the property, upon inquiry; and was notice equal to the record of Oakley’s deed to Howland. Hotice by possession of the premises, to be sufficient, must be of that open, visible character which, from its nature, is calculated to apprise the world that the property has been appropriated and is occupied; also who the occupant is; or from which the occupant may be readily ascertained; and it must be such a use and occupancy as the property is adapted to; and such possession, if calculated to give notice of the fact, is all that the law requires. Whatever may be the character of the occupancy or the improvement, it must still be exclusive. If only used and enjoyed in common with others, or with the public in general, it could not be regarded as hostile to other persons claiming title; or as being made under claim of title. It must be of such a character as, in its nature, is calculated to arrest the attention, and put any other person claiming title upon inquiry. It may well be supposed that all men, before they purchase real estate, take the necessary precaution to learn its situation; and if found to be occupied, that they will institute the necessary inquiry to ascertain by whom, and in what right. In this case, there was evidence proper for the consideration of the jury to determine whether the stacking of lumber, and the piling of saw logs on this lot, in such quantities, and so continuously, as the evidence seems to show, was an open, visible and exclusive possession by Ballanee’s lessees. If it was, then it was notice to McGrinity, and it was his duty to institute such inquiries as would have led him to a knowledge of the facts. If the jury had so found, the law would presume that he had made the inquiry and had learned the facts, asffo who was in possession and under what title he claimed to hold the property. In the case of Ewing v. Burnett, 11 Pet., 50, the Supreme Court of the United States went farther, perhaps, than would have been required under the facts in this case, to hold this a possession. In that case, it was held, that the claim of the exclusive right of digging and removing sand and gravel from a vacant and uninclosed lot, by a grantee of the land, 'by giving the privilege to some, and refusing it to others ; and bringing suits for trespass against persons removing sand and gravel, without permission; and at different times making leases to various persons, for the purpose of taking gravel and sand therefrom, besides taking it for his own use as he pleased, constituted adverse possession. And in the case of Rupert v. Mark, 15 Ill., 540, this court held, that notice of a prior unrecorded deed, by a subsequent purchaser at the time he takes his conveyance, will defeat his title. That by such notice he is as effectually bound as if the prior conveyance had been recorded at the .time of his purchase. It was also held, that whatever is sufficient to put a purchaser upon inquiry, will operate as notice of the former conveyance; and that possession of the premises by the first purchaser is sufficient to put the subsequent purchaser on inquiry, as to the title under which it is occupied. And it was also held, that any facts which could have been ascertained by ordinary diligence, will be presumed to have come to his knowledge. The doctrine of such notice, as actual occupancy, being equal to the record of the deed, seems to be fully recognized and supported by authority, and it has been repeatedly acted upon by this court, and is now regarded as a settled rule in our jurisprudence. The court below, at the instance of plaintiff, gave this, together with other instructions : “ The mere piling of wood or lumber, or rails or offal upon a tract of land or lot, unaccompanied by any other act denoting ownership, is not such possession of the land or lot as would constitute notice to a bona fide purchaser of such tract of land or lot, unless such piling of wood or lumber should constitute, in the estimation of the jury, an open, visible and exclusive possession of the lot in the person piling such wood .or lumber.” It is insisted that this instruction should not have been given. That these firms used the lot for the purpose of-piling saw logs and of lumber to dry, and for sale, continuously, from the time of receiving the lease from Ballance, until the sale to appellant, there seems to be evidence in the record. There was evidence that Sweeney & Littleton leased to appellant, in 1854 or in 1855, who soon after erected upon it a finishing shop, and he was still in possession in 1868. And that appel»lant obtained possession from Ballance, under whom he always claimed possession. The question then arises, whether the possession of Sweeney & Littleton was so open, visible, notorious and exclusive as to be calculated in its very nature, to inform persons in the vicinity, and those seeing the property, that some person had appropriated it, and was using and occupying it for his own use. Such an appropriation may be manifested in various ways. It may be by enclosure, by cultivation, by the erection of buildings, or other improvements, or, in fact, by any use that clearly indicates its appropriation and actual use, by the person claiming to hold it. And these are all questions for the determination of the jury, under proper instructions, if asked. This instruction was in accordance with these principles, and the court committed no error in giving it; nor can we' say that the finding of the jury is so manifestly against the weight of evidence that it should be set aside. It is likewise objected, that the court erred in refusing to give a portion of the instructions asked by appellant. We are unable to say that error exists, for this reason, as he has failed to bring up those which were given in his favor. For aught that appears, those given may have stated the law of the case fully and correctly to the jury. Appellant alleges error, and he must show it. He has not brought all of the record of the court below into this court; and having failed to do so, we will not presume that if it was before us, it would show error in the record; but we must rather presume that the instructions, if here, would sustain the finding and the judgment. There being no error discovered in the record, the judgment of the court below must be affirmed. Judgment affirmed.