Winslow v. Cooper

Mr. Justice Scholpield 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 t,o 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 hér 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 any importance would attach to her answers. All the circumstances considered, it is quite probable the parties misúnderstood each other, and we think the jury might well have so concluded. The declaration testified to by appellant is denied by appellee. We need but repeat, the effect of all the evidence upon the question of possession was for the jury, and we do not feel warranted in saying they palpably erred in that regard. If, as appellee testifies, this strip was by her permission used, .in connection with other property adjoining it on the south, as a common driveway, by others and also by herself, her possession was not thereby impaired. Under such circumstances their use of the strip is not adverse to, but strictly in subordination to, her right of possession. Appellant proposed to prove by a witness that once, while he. and one Hodge were looking at the .property in dispute, witness proposed to buy it of Hodge, but Hodge declined to sell it, for the reason that he wanted it for a driveway; but the court, on objection of appellee, refused to admit the evidence, and this ruling is now urged as error. It is patent that this evidence was not admissible on the ground that it was a part of the res gestee, nor on the ground that it was a declaration against interest; and the only other ground of which we are aware upon which it might be plausibly claimed that it was admissible, is, that it was the declaration of a party in possession as to the boundary line between himself and another. (See Noble v. Chrisman, 88 Ill. 186.) But it was not shown there was any dispute, then, in regard to tha boundary line between Hodge and-appellee, nor is it entirely clear that Hodge was then in possession, as owner, of any ground lying on that side of appellee’s property. But be that as it may, the effect of the proposed evidence is not to settle a boundary line, but to give title,—not to prove where the boundary line between Hodge and appellee was, but that Hodge owned the property in controversy. The first payment for taxes made by appellee under her deed, was February 13, 1865. She then paid the taxes for 1864, which were not due until after she received her deed. On January 14, 1866, she paid the taxes for 1865, and on February 11, 1867, she paid the taxes for 1866. In each of the receipts for these payments the property is described as “North side, S. W. \ of block 2, Miller, Foster and others’ addition to Bloomington.” On March 10, 1868, she paid the taxes for 1867; March 30, 1869, she paid the taxes for 1868; January 31, 1870, she paid the taxes for 1869; February 21, 1871, she paid the taxes for 1870; and March 27, 1872, she paid the taxes for 1871. In each of these receipts the property is described as lot 4, block 2, Miller, Foster and others’ addition to Bloomington. Appellee testifies that during these years, and for subsequent years, she paid all the taxes assessed on the ground she claims and then occupied. But counsel insist the payments made in 1865, 1866, and 1867, were void because of the indefinite and imperfect description of the property. We can no,t concur in this view. It is not denied that if the description had been “north half” instead of “north side, ” it would have been sufficient, and included the property in controversy. In Chiniquy v. People, 78 Ill. 570, we held that the words “east end” meant “east half, ” and there is obviously equal or greater propriety in here holding that the word “side” means “half.” The word “side” is, undoubtedly, often used to express the idea of a line, edge or surface, but it is also sometimes used to express the half or part lying on one side or the other of a central line, either actual or ipiaginary, drawn through a body, and it depends entirely upon the context whether one meaning or the other be intended. Thus, “right side of the body, ” used in contradistinction to the left side, clearly means “right half.” Thus, Webster, in his Unabridged Dictionary, gives as the fourth definition of the noun “side:,” “One-half of the body (human or otherwise) considered as opposite to the other half; especially one of the halves of the body lying on either side of the.mesial plane,—that is, of a plane passing from front to back through the spine.” It may be admitted “north side” is an awkward and inapt way of describing the “north half,” but, in cases like the present, mathematical certainty is not indispensable, and descriptions are not to be rejected merely because they are awkwardly or inaptly expressed. If, taking the language in the connection in which it is used, the meaning is reasonably clear to the ordinary apprehension, it is sufficient. In construing this language we must commence with the idea that the intention in using it was to describe a definite and tangible part of the designated lot, for the purpose was to designate,—point out specifically,—property against which taxes could be extended, and from which they could be collected by its sale. Manifestly, a line, edge or verge conveys no idea of property, and so, it is believed, it would be generally understood they could not have been intended. To embrace property, width as well as length was indispensable; and, this being conceded, it must follow that the “north half, ” or width from the north line to the central east and west line, was intended, for there is no possible intermediate limit, and width, without tangible and definite limit, is as meaningless, in describing property, as is a single straight line. If it be. said A owns the north side of a given field, and B owns the south side of it, it is believed it will be universally understood that A and B own the whole field.’ No definite space is left to be occupied by any one else. In such case no one could doubt where is the dividing line between A and B. It can be nowhere else than an east and west line, drawn through the center of the field,- dividing it into halves. The only difference here is, while the “north side” is expressed, its opposite or counterpart, “south side,” is not expressed. If both were expressed in juxtaposition, there could be no doubt. How, then, can there be here reasonable doubt ? From that which is expressed, and as expressed, it is clear its use is in implied juxtaposition to that which is not expressed,—that is, to say “north side, ” implies a “south side, ” and, used to indicate width as well as length, the two necessarily imply an entire definite surface. We are satisfied no violence is done to the language, and that justice will best be promoted by holding that “north side,” in the connection in which the words are here used, means “north half.” After the payment of 1867 the assessments were made, and the taxes paid,' in accordance with an assessor’s plat, to which, so far as affects the present case, we perceive no substantial objection, and so we conclude, especially when the parol evidence showing an actual payment of taxes upon the property possessed by appellee is taken into consideration, the proof of payment of taxes is sufficient. The rulings of the court in regard to the instructions are, in some respects, not entirely free from critical objection, but we perceive no error in that regard which, after- a full and careful consideration of the entire record, ought, in our opinion, to authorize a reversal. Assuming, as has been seen, we think the evidence warrants that the proof of payment of taxes and possession is ample, the verdict below is clearly right, and under no proper instructions ought a different result to have been reached. The judgment will be affirmed. Judgment affirmed.