Higinbotham v. Blair
139 N.E. 909
Ill.
1923
Check Treatment
Mr. Justice Cartwright

delivered the opinion of the court:

The appellee, Harlow D. Higinbotham, filed his bill of complaint in the circuit court of Will county praying the court to quiet his title to certain tracts of land therein described, including tracts containing about thirteen acres in section 12, township 35, range 10, to which he claimed title by warranty deed executed April 30, 1910, by Harlow N. Higinbotham conveying the same to him, and he also claimed title by seven -years’ possession and payment of taxes under the alleged color of title acquired by the deed. The bill alleged that Harlow N. Higinbotham, after conveying the premises to the appellee, executed a warranty deed on September 4, 1918, to Harry M. Higinbotham purporting to convey thе same land; that Harry M. Higinbotham died in March, 1920, leaving three minor children his heirs-at-law, and leaving a last will and testament, of which Henry A. Blair, Chauncey B. Borland and Emil C. Wetten were executors; that Blair was also guardian of the estates of the minor children; that the executors, under a power of sale in the will, sold the premises and executed a deed thereof in 1920 to Robert Pilcher, and Pilcher and wife conveyed the premises to the city of Joliet. The bill made the executors, the minor heirs and their guardian, Pilcher and the city of Joliet defendants. A guardian ad litem was appointed for the minors and filed the usual answer. The executors and the guardian of the estates of the minors filed their joint and several answer, admitting the making of the several deeds, the death of Harry M. Higinbotham testate, the sale and conveyance under the power given by the will and the subsequent conveyances as alleged but denying the other allegations of the bill. Pilcher and the city of Joliet filed a joint and several answer subsequently, to the same effect. There was a hearing before the chancellor, when the Joliet Park District was also made a defendant, and the answer of the city of Joliet stood as the answer of the park district. The hearing resulted in a decree finding that the appellee was the owner in fee simple of the lands in dispute and quieting his title as against any interest, claim or demand of any of the appellants, and they appealed from the decree.

On April 30, 1910, Harlow N. Higinbotham executed a warranty deed to his son, the complainant, Harlow D. Higinbotham, and the deed dеscribed the premises conveyed as follows: “The southeast quarter (S. E.%) of section twelve (12), township thirty-five (35), north, range ten (10), east of the third principal meridian, except 39.20 acres, situated in Will county, Illinois.” On September 4, 1918, Harlow N. Higinbоtham executed a deed to another son, Harry M. Higinbotham, in which the premises conveyed were described as follows: “That part of the southeast quarter (S. ‍​​​‌​​​​​​‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌‌‌​​​‌‌​‌​‌​​‌‌​‌‍E. 54) of section twelve (12), township thirty-five (35), north, range ten (10), east of the third principal meridian, lying north of the Chicago, Rock Island and Pacific right of way, excepting therefrom the land now owned by the city of Joliet and J. R. Hobbs, this said land being about thirteen (13) acres.” Harry M. Higinbotham died in March, 1920, leaving a last will and tеstament, which gave to his executors a power of sale, and the executors executed a deed of the premises to Robert Pilcher, who deeded the same to the city of Joliet, as alleged in the bill.

A great dеal of evidence was introduced by the complainant, over the objection of the defendants, to prove that there were 39.20 acres of land in the southeast quarter of section 12 not owned by Harlow N. Higinbotham when he made the deed to the complainant, and that he did own the thirteen acres in controversy. This evidence consisted of various deeds to Harlow N. Higinbotham of tracts in that quarter section, a plat, purporting to havе been made in 1898, bearing tracings in ink and pencil marks, and a blue-print showing lines of surveys and lines platted from deeds. This evidence was offered for the purpose of showing an intent of Harlow N. Higinbotham to convey by the descriptiоn in his deed to the complainant the thirteen acres in controversy, and it was both incompetent and ineffectual for such purpose. The purpose of a description of land contained in a deed is to identify thе subject matter of the grant, and if an element of the description is ownership of the property, such ownership may be proved by extrinsic evidence to identify such subject matter. It was on this ground that such evidence was held аdmissible in Allen v. Bowen, 105 Ill. 361, where the description was, “my house and lot ‍​​​‌​​​​​​‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌‌‌​​​‌‌​‌​‌​​‌‌​‌‍in Patolca,” and in Cumberledge v. Brooks, 235 Ill. 249, where the description was, “my undivided interest in the Chicago lots.” Such a description designates particular property as belonging to the grantor and is clear and definite on the face of the deed, and the effect of extrinsic evidence is to apply the description to the designated property.' Similar conditions existed in Choteau v. Jоnes, 11 Ill. 300, Dickenson v. Breeden, 30 id. 279, Worden v. Williams, 24 id. 67, and Colcord v. Alexander, 67 id. 581. Land is conveyed only by writing, ‍​​​‌​​​​​​‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌‌‌​​​‌‌​‌​‌​​‌‌​‌‍and it was not decided in any of those cases that one may acquire title to the land of another unless the owner has conveyed it tо him.

The description in the deed to the complainant of the southeast quarter of section 12 was clear, definite and certain and not subject to be changed or varied by parol, and there was an exception of an undescribed and unidentified 39.20 acres which could not be found or located from anything contained in the deed. It is a long established rule of law that a patent ambiguity in a deed cannot be explained by extrinsic evidence. (Lane v. Sharpe, 3 Scam. 566; Cook v. Whiting, 16 Ill. 480; Panton v. Tefft, 22 id. 367; Shackleford v. Bailey, 35 id. 387; Alleman v. Hammond, 209 id. 70; 1 Greenleaf on Evidence, sec. 297; 22 Corpus Juris, 1191; 10 R. C. L. 263.) Such an ambiguity is one which appears on the face of the writing itself, and while the court will receive evidence of the surrounding circumstances and collateral facts, so as to place itself in the situation of the parties at the time of executing the instrument, if there still remains incurable and hopeless uncertainty ‍​​​‌​​​​​​‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌‌‌​​​‌‌​‌​‌​​‌‌​‌‍it cannоt be cured by extrinsic evidence. A deed speaks for itself, and the only purpose of construction is to find out what it means, and that depends upon the language used. A latent ambiguity is one where the writing upon its face apрears clear and unambiguous but there is some collateral matter which may be raised by extrinsic evidence making the meaning uncertain, and the ambiguity being raised by extrinsic evidence the same kind of evidence is admitted to rеmove it. (Doyle v. Teas, 4 Scam. 202; Marshall v. Gridley, 46 Ill. 247; Fisher v. Quackenbush, 83 id. 310; Harman v. People, 214 id. 454.) The ambiguity being raised by outside evidence and explained by the same character of evidence, the effect is not to change the contract but to аpply its provisions to certain property. It has been said that while the rule is settled and definite there has been some confusion in decisions, arising from the application of the rule to the language of particulаr instruments and incorrect meanings of the terms employed. An instrument may appear clear and unambiguous but there may be a question of identity so that the description may fit different property or different things, and evidence outsidе of the instrument may be introduced to identify the person or thing. In Evans v. Gerry, 174 Ill. 595? there was a contract for the exchange of properties in the city of Highland Park, and a tract was described as a certain lot in block 75, in the city оf Highland Park, as per a recorded plat, and this was perfectly clear on its face, but it was shown ‍​​​‌​​​​​​‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌‌‌​​​‌‌​‌​‌​​‌‌​‌‍by outside evidence that there was no block by that number in the original plat but there was a block 75 in an addition. The effect of the evidence was not to change the contract but to apply its provisions to certain property. In Brenneman v. Dillon, 296 Ill. 140, the description of the property conveyed was clear, definite and unambiguous but extrinsic evidence showed that the description was incorrect in many particulars, and it was competent to prove by the same kind of evidence what property was conveyed, and incorrect matters of description being eliminated there remained sufficient to enable the court to apply the deed to the intended property. In Marske v. Willard, 169 Ill. 276, there was a lease in which the block, subdivision and town were stated but the number of the lоt was omitted. The lease was executed by the parties by taking possession, holding the same and paying rent, and there was an option to purchase the leased property. The contract of lease having bеen executed by taking possession and paying rent, it was held that an option to purchase the leased property applied, and this might well have been placed on the doctrine of estoppel. In Alleman v. Hammond, supra, the question arose in an action of ejectment where a tax deed described property as the east side, except the southeast corner, of a quarter section. The exceptеd tract was not ascertainable either in its location, the extent of acreage or otherwise, and manifestly the description of the property conveyed and the location of it were rendered uncertain and ambiguous on the face of the instrument itself. The rule that such an ambiguity could not be removed by parol proof was applied.

In this case the court-having looked to the circumstances of the parties, the subjеct matter of the deed and any competent collateral facts, would still be uncertain as to what the meaning of the written words, “except 39.20 acres,” would be, and it was a case of incurable uncertainty on the face of the deed, which could not be removed by extrinsic evidence. The ambiguity is the same which existed in Shackleford v. Bailey, supra, where there was a deed for thirty-four acres of land out of a certain tract without specifying the part of the tract out of which it was to be taken, and the court said the deed was void for uncertainty, as the land could not be located. The same rule necessarily applies to an exceptеd portion of a tract conveyed by definite terms. This was decided in Attebery v. Blair, 244 Ill. 363, where a deed made in 1864 conveyed lands by certain and definite description but excepted therefrom two acres which could not be lоcated from a description of the same. It was held that the attempted description of the two acres being void for uncertainty and describing nothing, there was nothing excepted from the land conveyed. Where a description which is plain and unambiguous in its terms is followed by an exception which is ambiguous and uncertain and describes nothing, the latter must be rejected and the former prevail. The statutory warranty deed from Harlow N. Higinbotham to the сomplainant purported to convey the southeast quarter of section 12, and the exception was void for uncertainty. The deed left no right, title or interest in Harlow N. Higinbotham which he could afterward convey to Harry M. Higinbotham, and the conclusion of the chancellor was in accordance with the law.

The decree is affirmed.

Decree affirmed.