Stumpf v. Osterhage

Mr. Chief Justice Soholfibld delivered the opinion of the Court: This is ejectment for a certain tract of land, part of a larger tract, described as claim No. 572, survey No. 410, in Monroe county. Both parties concede that the claim belonged to Leonard Harness in his lifetime, and that upon his death it descended to his three daughters, — Kate, Sally and Mary. There is proof tending to show that in 1810 they made between themselves a parol partition of the claim, whereby they allotted and set apart the northern part to Kate, the middle part to Sally, and the southern part to Mary, and that each took actual and immediate possession of the part so allotted and set apart to her. A small creek runs in a westerly course through the claim, entering its eastern boundary twenty-eight chains and four links south of the north-east corner, and passing out at a point on its western boundary ten chains and eighteen links south of the north-west corner. After entering the claim on the eastern boundary, the creek bears north of west for a short distance, then turns sharply to the south, and runs a little west of south for a short distance, then again turns and runs nearly west for a short distance, and then again turns and meanders in a northwesterly direction to the west boundary line. The plaintiff below, and defendant in error here, introduced evidence upon the trial tending to prove that Sally married John Sheehan, and by him had a daughter, Mary, after which she and her said husband died intestate; that Mary Sheehan married Bichard Walton, by whom she had a son, W. B. Walton, after which she and her said husband died intestate; that W. B. Walton conveyed the part of said claim so set apart to Sally Harness, to Wilson & Cahow, by deed dated March 9, 1835; that Wilson & Cahow conveyed the same part to John D. Hagenkamp, by deed dated December 30, 1854, and Hagenkamp conveyed the same part to Charles Osterhage, the defendant in error, by deed dated February 22, 1871. The contention of the defendant in error is, that he is seized in fee of the part so allotted and set apart to Sally Harness', and that the north line of that part extends to the point on the west line of the claim, where the creek crosses it, and 'extends thence up the line of the creek in a southeasterly direction, following its meanderings, until the point is reached where the line of the creek is farthest south, and thence due east to the east line of said claim. The contention of plaintiff in error is, that there never was any legal partition of said claim, parol or otherwise ; that he is seized in fee of the north 151 acres of said tract, including 15 acres in the south-east corner of the north 166 acres of the claim, and that if not seized in fee thereof, he has, at least, color of title thereto, made in good faith, and has been in the continuous, actual possession 'thereof, and paid all taxes legally assessed thereon, for seven successive years. The tract in controversy, it will thus be seen, is so much of the north 166 acres of the claim as lies south of the creek and the line running due east from the southernmost point of its line to the east line of the claim, and includes, according to the plat filed with the record, acres. We see no objection to the ruling of the court below in excluding the records of the deeds by Sally Harness to Jacob Clover and William Clover; by William Clover, in his own right, and as guardian of Polly and Joseph Harness, to Jacob Clover; the will of Jacob Clover; the deed' by Elias Clover and wife to John Clover, and the index record of a deed of John Clover to Joseph Lawson. The deed by Sally Harness assumes to convey nothing to anybody, — is but a release, to become effective upon a condition precedent, and there was no offer of any proof of the performance of such condition. There being no sufficient evidence of any conveyance to Jacob Clover of the interest of Sally Harness, and his will not professing to dispose of this property specifically, it was properly excluded. And the same may be said of the other deeds excluded. They do not profess to convey the property in dispute, and no title being shown in the grantees, there can be no presumption of even an intention to convey this property by the use of the general language employed in the deeds. The ruling, also, in admitting evidence of the declarations of Kate Clover, as to wrhere was the southern line of her claim, we think unobjectionable. They were made when she was still the owner of the property, and were in disparagement of her title. So, also, the evidence of the family reputation as to deaths and residences, etc., was properly admitted. But we are of opinion that the court erred in excluding evidence of the deed of Ann M. Agnew, administratrix of the estate of Joseph Lawson, deceased, to William H. Patterson. Although ineffective as a conveyance of title, it was unquestionably color of title. (Chickering v. Failes, 26 Ill. 507; Hardin v. Crate, 60 id. 215.) It includes the land in controversy, and there is no evidence that it was made in bad faith, and in the absence of this it is to be presumed that it was made in good faith. McCagg v. Heacock, 34 Ill. 476; Brooks v. Bruyn, 35 id. 392; Morrison v. Norman, 47 id. 477. There were a number of tax receipts, showing payments of taxes on land in claim No. 572, survey No. 410, by John Stumpf, for the years'1861 to 1871, inclusive. These receipts, in and of themselves, alone, are defective, in that they do not show in what part Of the claim is the land upon which the taxes are paid; and the receipt for the payment of the taxes in 1865 was defective in the description of the property, and it was also defective, as was likewise that for the year 1866, and, it may be, that for one other year, in showing a payment only on some 71 acres, instead of 155 acres. The tax books, however, were admitted, as we think, properly, to show what land was assessed against Stumpf for the year 1865, and there was parol evidence showing on what land the taxes were,- in fact, paid. We have held it is competent to prove by parol on what land taxes are, in fact, paid, and thus to supplement or contradict the evidence of the written receipts for taxes. Rawson v. Fox, 65 Ill. 204; Milliken v. Marlin, 66 id. 13. John Stumpf had died after the first and before the last trial in this case. He testified as a witness upon the first trial, and secondary evidence was given, upon the last trial, of what he then testified. A. M. Schlierholz testified that he was a reporter on the first trial, and that he heard John Stumpf then testify, and recollected his testimony; that Stumpf then testified: “I know the land, ” — i. e., the land in controversy; “bought it from George Schuennann; took possession of it in 1860; paid taxes, since then, on 151 acres, the Hobbs piece excluded; took possession of land in dispute in 1861, cut wood; cleared the land,.and built a house. * * * I paid the taxes for the 151 acres; the land was never sold for the taxes. * * * I paid taxes on the land since I bought it. ” Then Phillip Stumpf testified, after stating that he knew the land in controversy, and that his father bought it in 1860: “My father and brother and I have lived there since A. D. 1862. ” This, we think, was sufficient evidence of possession and pa}rment of taxes, unrebutted. But the court, for the purpose of rebutting this evidence, admitted evidence, — over the objection of plaintiffs in error, — of the payment of taxes, during about the same time, on 120 acres of land in claim 572, survey 410, by John Hagenkamp, and also evidence of a judgment against 120 acres of land in the same claim and survey, assessed as the property of John Hagenkamp, for the delinquent taxes of the year 1866. We have been unable to find any evidence that identifies this 120 acres with the land in dispute, and since there are more than 400 acres in claim 572, survey0410, it does not follow that this 120 acres must have been the land in controversy. We are therefore of opinion that the court, in admitting this evidence over the objection of the plaintiffs in error, also erred. For the errors indicated, the judgment below must be reversed and the cause remanded. Jvdgmenb