| Ill. | Dec 20, 1905
delivered the opinion of the court:
It is first urged by plaintiff in error that executor’s subdivision No. 1 and executor’s subdivision No. 2 of Francis V. Noyes’ estate, shown by the plat contained in the transcript of the record, are in fact one and the same subdivision, and that the streets therein were conveyed to the city of Mattoon by one and the same statutory dedication; that various lots in subdivision No. I had been sold and conveyed to various persons after the dedication and prior to the filing of the declaration or deed of vacation, and that as these grantees did not join in the deed of vacation that deed was ineffective under the provisions of section 6 of chapter 109, Hurd’s Revised Statutes of 1903, which is as follows:
“Any such plat may be vacated by the owner of the premises at any time before the sale of any lot therein, by a written instrument declaring the same to be vacated, executed, acknowledged or proved, and recorded in like manner as deeds of land; which declaration being duly recorded, shall operate to destroy the force and effect of the recording of. the plat so vacated, and to divest all public rights in the streets, alleys and public grounds, and all dedications laid out or described in such plat. When lots have been sold, the plat may be vacated in the manner herein provided by all the owners of lots in such plat joining in the execution of such writing.”
An examination of the record shows that this contention was not made by the city on the trial in the court below, its insistence in that regard in that court being, that one parcel of real estate in executor’s subdivision No. 2 had been conveyed to John W. Hogue prior to the execution of the deed of vacation, and that the vacation was erroneous for the reason that Hogue did not join in that deed. It was not suggested in the court below, so far as appears from the record, that the two subdivisions were one and the same, and that it was necessary for owners of lots in subdivision No. 1 to join in the vacation of the plat of subdivision No. 2.
A defense not made in the court below will not be considered in this court when the record is reviewed here. Ortmeier v. Ivory, 208 Ill. 577" date_filed="1904-04-20" court="Ill." case_name="Ortmeier v. Ivory">208 Ill. 577; McDavid v. Sutton, 205 id. 544.
It is next contended that Joseph Withington was acting as one of the trustees under the will of Noyes at the time of the execution of the deed of vacation, and that as he did not join with Sara E. P. Noyes in that deed the same was ineffective. Whether or not Withington was at that time one of the trustees is in this case a question of fact. The testimony was taken in open court. There is no recital in the certificate of evidence showing that it contains all the evidence which was introduced in the trial of this cause in the city court. Whether or not the evidence showed that Withing-ton was at that time a trustee we cannot determine in the absence of a certificate of evidence purporting to present all the evidence heard by the chancellor. Cooley v. Scarlett, 38 Ill. 316" date_filed="1865-04-15" court="Ill." case_name="Cooley v. Scarlett">38 Ill. 316; Allen v. LeMoyne, 102 id. 25; Allen v. Henn, 197 id. 486.
The tract of land in executor’s subdivision No. 2, conveyed to John W. Hogue, was transferred by a deed dated September 14, 1901, and is described therein by metes and bounds. The deed of vacation was not signed until the 18th of September, 1901, and was filed for record on September 24, 1901. It is contended on the part of defendant in error that this deed to Hogue was not delivered until after the deed of vacation had been filed, so that Hogue never became the owner of the land described in his deed until after the vacation of the plat of the subdivision. The third and last point made by plaintiff in error is upon its assertion that Hogue’s deed was delivered before the deed of vacation was filed, and that Hogue was therefore a necessary party to the deed of vacation. This, too, presents a question of fact, viz., was the deed to Hogue delivered before or after the deed of vacation was filed?—and tíiis question of fact we cannot determine for reasons already pointed out.
The decree of the city court will be affirmed.
Decree affirmed.