104 Ill. 397 | Ill. | 1882
delivered the opinion of the Court:
This appeal is prosecuted to procure the reversal of a judgment of the circuit court of Jackson county, in an action of ejectment brought by appellee, against appellants.
Appellee claimed title by virtue of a sheriff’s deed, made pursuant to a sheriff’s sale on an execution issued upon a decree of the circuit court of Union county, in her favor, and against the appellant Bowen Keith, for alimony. Appellants urge several objections to this deed, which we shall notice briefly in their natural order.
First—It is contended the decree is void because it directs the payment of $100 per annum, but does not direct how long this shall be done. This, at most, could be but error. The court had jurisdiction of the parties and of the subject matter, and at all events this would be a good decree for the payment of $100 per annum until reversed on appeal or error. It would seem to be equivalent to a decree for the payment of the specified amount during the joint lives of the parties, but it is not necessary that we shall commit ourselves to this view, and we do not do so. It is sufficient the objection is not tenable in this collateral proceeding, and if good at all, is only so on appeal or error. *
Second—Counsel contend that there is a variance between the decree in evidence and the recitals in the sheriff’s deed— that the decree is of the October term, 1872, of the Union circuit court, for “the sum of $100 during each and every year, commencing on the 1st day of November, A. D. 1872, payable quarterly, in advance, ” while the sheriff’s deed recites that “at^the October term, A. D. 1872, of the circuit court in and for the county of Union, and State of Illinois, Ada C. Keith recovered a judgment against Bowen Keith for the sum of $175, and costs of suit,” etc. We have held that this is a mere question of identity, and that a misrecital of the judgment and execution in a sheriff’s deed, where they are so described that they may be fully -identified, is not fatal. Phillips et al. v. Coffee, 17 Ill. 154; Loomis v. Riley, 24 id. 307; Hayes et al. v. Bernard, 38 id. 297,—see on page 303. There seems here to have been no trouble in identifying the decree with the recitals in the deed. The word “judgment, ” instead of “decree,” was purely a clerical error, and, under all the circumstances, could have misled no one, and the amount for which the execution was issued was the correct amount then due on the decree. The objection is not tenable.
Third—The most serious objection urged by counsel for appellant is, there is no proof that an execution ever issued* on the decree, and a sufficient basis for the introduction of secondary evidence of the execution, which was allowed by the court, was not laid. We think the affidavits of appellee and the clerk of the circuit court of Union county were competent, and sufficient preliminary evidence to prove the loss of the execution. (Rev. Stat. 1874, page 845, sec. 28.) And sec. 33, chap. 77, Rev. Stat. 1874, page 626, is as follows; “Any deed which has been heretofore, or which may hereafter be, so executed,”—i. e., as previously in that chapter is provided in relation to sheriff’s deeds,—“or a certified copy of the record thereof, shall be prima facie evidence that the provisions of the law in relation to the sale of the property for which it is or may be given, were complied with; and in case of the loss or destruction of the record of the judgment or decree, or of the execution or levy thereon, such deed or certified copy of the record thereof shall be prima facie evidence of the recovery and existence of the judgment or decree and issuing and levy of the execution,. as therein recited. ” The existence of the judgment is clearly proven, and there is nothing in the record to overcome the prima facie evidence of the issuing and contents of the execution afforded by the sheriff’s deed.
Fourth—Counsel insist that as to the south-east quarter of the south-east quarter of section 34, appellee established no title whatever. They- admit this land was included in the deed from Miller and wife to Alexander H. Keith, but insist it is not shown that Miller had any title, and also that the deed from Miller and wife was not properly acknowledged. There is no controversy but that Alexander H. Keith conveyed this land, as well as the other, to Bowen Keith, and that Bowen Keith took possession, and has retained possession thereof since March, 1860. We have held that the visible and exclusive appropriation and use of a tract of land, claiming the whole under color of title, or a deed purporting to convey the whole, is, in law, an actual possession of the entire tract, except so far as adverse possession-may exist. (Brooks v. Bruyn, 18 Ill. 539; Hardisty v. Glenn, 32 id. 62; Bowman v. Wettig, 39 id. 417.) Prior possession alone is evidence of a fee, and although the lowest, until rebutted by a higher it must prevail. (Herbert v. Herbert, Breese, 354; Mason v. Park, 3 Scam. 532; Brooks v. Bruyn, supra; Watts v. Parker, 27 Ill. 228; Barger v. Hobbs, 67 id. 592.) Therefore, as between appellant Bowen Keith, and appellant John Keith, the latter having shown no title or right of possession whatever, the title of the former was,, before the sheriff’s sale, sufficient to prevail in an action brought for a disturbance to his prior possession; and by virtue of her deed under the sheriff’s sale, appellee came into exactly such estate as Bowen Keith theretofore had, and he can not, in this suit, dispute her title. Gould et al. v. Hendrickson, 96 Ill. 599; Ferguson v. Miles, 3 Gilm. 358.
. We see no cause to disturb the judgment below, and it will therefore be affirmed..
Judgment affirmed.
