Kesl v. Cobine

Mr. Justice Farmer delivered the opinion of the court: This appeal is prosecuted from a judgment of the circuit court of Madison county in favor of appellees in an action of ejectment. The land involved is a strip six feet wide and 100 feet long from north to south and fronts at the north on a public street. The land in dispute is a part of lot 66 of Wheeler’s addition to the city of Edwardsville. Lot 66 is triangular in shape and contains approximately two acres, and was owned by Mary M. Cowan, the common source of title of appellant and appellees. June 10, 1919, Mrs. Cowan conveyed a part of said lot to appellant and his sister. The sister died before this suit was brought, and it was stipulated that appellant now owns the entire interest in the land conveyed by the deed. The land conveyed was described as beginning on the north line 200 feet westerly from the northeast corner of lot 66, thence south parallel with the east line of the lot to its south line, thence west along the south line 100 feet, thence north parallel with the east line to the north line of the lot, thence easterly to the place of beginning. June 3, 1921, Mrs. Cowan conveyed to appellees a tract off the east end of lot 66, 200 feet wide from east to west, which was all that part of the lot lying east of appellant’s land except a parcel in the southeast corner 75 by 150 feet, which is not involved in this suit. The land conveyed to appellees was particularly described by metes and bounds, and except for the small portion excepted in the southeast corner was 200 feet wide east and west. The deed recited it extended on the west to the land conveyed to appellant. At the time the deeds were made there was no fence between the two tracts and no object to mark the line between them. Appellees had possession of part of the disputed land. They started to build a fence on the line between the two tracts and appellant secured an injunction, which was later dissolved on motion. Then this ejectment suit was begun. The disputed strip is not embraced in the description of land conveyed to appellant but is embraced in the description of land conveyed to appellees. This is not denied, but appellant offered to prove that Mary M. Cowan, some time before she conveyed to him, told him that the east line of the 100. feet would be about 25 feet east of the residence on the property. That would include the six feet in dispute and make appellant’s property 106 feet in width east and west. The proof was offered on the theory that it was an establishment of the line by parol. The court refused to admit the proof, and the ruling is assigned as error. Appellant’s deed did not convey to him the land in question but appellees’ deed from the same grantor did convey to them the disputed land. If it was intended to convey the strip to appellant and not to appellees that fact could not be shown in defense of an ejectment suit; nor was it competent to prove the grantor of appellant told him, before he purchased, that the line of his land would be 25 feet east of the residence, which would give him the disputed tract. (Duggan v. Uppendahl, 197 Ill. 179; Grubbs v. Boon, 201 id. 98.) Appellant offered to prove that one of appellees, in talking with him shortly before they purchased about their intention of buying the land, inquired about the location of his east line, and he informed them that it was 25 feet east of the house situated on appellant’s property. That testimony was offered on the theory that it operated as an estoppel against appellees. The court properly sustained an objection to the offered proof. City of Amboy v. Illinois Central Railroad Co. 236 Ill. 236; Grubbs v. Boon, supra. Complaint is made that the court permitted proof that the injunction secured by appellant restraining appellees from building their fence on the line was dissolved and the bill dismissed on demurrer. That proof was not very pertinent to the issues, but even if absolutely incompetent it did no harm to appellant. The finding and judgment of the circuit court could not, under the law and evidence, have been otherwise than for appellees, and it is affirmed. T , , m , 11 ’ T , , m , Judgment affirmed.