Prouty v. Tilden

Mr. Justice Phillips delivered the opinion of the court: The trial court admitted in evidence the plat of the tract of land which was found among the papers of William M. Tilden after his decease, in 1886, which bore on its face the name of his grantor, George T. Abbey, in the handwriting of the latter, and which was seen about the time of the execution of the deed and trust deed by the attorney writing the last named instrument, the original being produced. More than twenty-two years had elapsed after the execution of the deed by Abbey to Tilden before any hostile title was asserted against the title thus conveyed. When that conveyance was made and this grantor in the deed was still alive Tilden fenced the premises and had his deed of record, and the manner in which the fence was placed was in strict accordance with the plat, and recognized Thirty-seventh street (or Wahpanseh avenue) as 66 feet wide, with Wabash avenue extended as of the full width of 100 feet, with an alley along the entire tract parallel with Wabash avenue. If the starting point of the description in the deed from Abbey to Tilden is placed with reference to the plat found among Tilden’s papers, which shows Thirty-Seventh street 66 feet wide, then the description would extend the tract conveyed 33 feet farther south' than would be the case if Thirty-seventh street were assumed to be but 33 feet wide, and in that case the description would include the premises in controversy. Where a long time has elapsed after a transaction, and persons who could probably have given important testimony are dead, we cannot expect the same exactness and minute details in the evidence of witnesses as when transactions are more recent, and in such cases courts will take into consideration such facts and circumstances as will tend to throw light on the subject matter. We hold it was not error to admit the plat in evidence. By the plat which it is apparent came from Abbey, and the other circumstances, it is clear he sold with reference to that plat, and the purchaser and his grantees would have a right to have the streets and alleys so shown remain open forever, free from all claim or interference of the vendor or those claiming under him. The exhibition of a plat which shows a tract of land to be bounded by certain streets and alleys is in fact a declaration it is so bounded. It is an act coupled with a fact shown on its face. It amounts to a declaration that the property" is bounded as shown by that plat. The distances marked, showing they would carry the boundary to the street, are equivalent to a declaration that the street is the boundary. Tilden being in actual possession when the assignor of appellant acquired her title, she was put on inquiry as to his title. It was notice to put her on inquiry. Had such inquiry been made she could have learned the fact. The appellant asked the court to hold two propositions substantially the same, which were to the effect that the beginning point in running the boundary was to be determined by the deed itself, and the south-east corner of said streets, as they existed at the time of the deed, was the beginning point. The court modified the same by adding, “unless the instrument dedicating or attempting to dedicate is read in conjunction with the deed to Tilden.” There was no error in so modifying those propositions. The plat was evidence to be considered in connection with the deed. The assignor of appellant being thus put on inquiry as to the title of Tilden by reason of his possession, can stand in no better relation to the land and title than would her grantor. The deed to Tilden effected a conveyance of the land in controversy. Being in possession under a deed which conveyed him the title, he .fenced the tract and maintained that fence, and remained in actual possession for more than twenty years before this suit was brought. That possession was actual, open and notorious, with a good and sufficient title. The assignor of appellant in 1876 entered the premises and made a cross fence, cutting off the south 33 feet. Finding the property inclosed, appellant’s assignor had no right to interfere with the possession. Her entry was that of a trespasser and wrongdoer. (Lee v. Town of Mound Station, 118 Ill. 304.) When she found another in actual possession her remedy was by ejectment, to settle the question of title. The possession of Tilden had never been released or abandoned, and no right existed in the assignor of appellant to invade that possession. (Gage v. Hampton, 127 Ill. 87.) A wrongful act—a mere trespass—could not be an act which dispossessed Tilden and prevented the running of the statute. Under either defense the finding and judgment of the circuit court of Cook county were correct, and will be affirmed. Judgment affirmed.