| Ill. | Jan 15, 1863
This was an action of ejectment, and the plaintiff relies on possession, under claim and color of title, with payment of taxes for seven years. We think the plaintiff failed in making out possession to the premises in question, either actual or constructive, under his claim of title. To show possession, he relies upon the testimony of Mr. Baughman, who states that he- owned an adjoining lot, which he inclosed in March, 1850, and by mistake extended his fence over so as to include in his inclosure a strip of this quarter, four rods long and one rod wide. Afterwards—and we may assume after the mistake was discovered—he took a lease from Hubbard, the ancestor of the plaintiffs, and under whom they claim, for ten acres in this quarter, but without designating what ten acres. He states that he never took possession of ten acres of the quarter, nor did he make any improvement, or do any act under the lease except to retain the possession of the four rods within his inclosure, until Dr. Hull took possession of the quarter, in August, 1857, when the witness moved off his fence. Up’ to that time no possession had been taken of, or improvement made upon, the quarter, by any one, except the inclosure of the four rods by the witness. This, we think, did not constitute a possession of the quarter by Hubbard. Upon its face the lease was void, for want of a location of the demised ten acres. This possibly might have been helped out, had the witness taken possession of ten acres with the assent of Hubbard. But this he certainly never did. But even.if ho'.had done this, such possession could never have been extended, by construction, over the whole quarter, because by the very terms of the lease, his possession and right of possession were limited to the ten acres. The only part of the lease which in any way refers to the balance of the quarter, is a clause by which the witness agreed not to cut himself, or permit others to cut, trees on other portions of the quarter; but it does not appear that he ever prevented anybody from cutting, or that anybody ever offered to cut trees on any part of the premises. The plaintiff can claim no more benefit from the possession of the witness, than the witness could,were he claiming rights under it for his own benefit; and there would hardly be a pretense that he could claim the constructive possession of the whole quarter, because he had by mistake of the line included within his inclosure four rods of it.
There are some other errors assigned which we think are fatal, although they have occurred no doubt from inadvertence. The finding of the court is this : “It is considered by the court that the issues are for the plaintiffs.” This verdict is substantially defective in not stating what estate is in the plaintiffs. The judgment is, that the plaintiffs have a fee simple title to the premises. Admitting the plaintiffs’ right to recover, a part of them are tenants by the courtesy only.
We think the court decided properly in overruling the motions to suppress depositions.
The judgment is reversed, and the cause remanded.
Judgment reversed.