Clark v. Powers

45 Ill. 283

• Court: Illinois Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

In this case the defendant, to show color of title, gave in evidence a deed from David Graham to Eli Pangborn, dated March 19, 1853, properly describing the premises in controversy, also a deed from Pangborn to Yocum, dated October 30, 1854, also a deed from Yocum to Higgins, dated September 17, 1861, also a deed from Higgins to himself, dated January 2, 1865. He also proved the payment of taxes from the year 1853 to 1863, inclusive, under this title, and possession from 1846. The last payment by Yocum was made February 26,1862, for the taxes of 1861, and it is objected, that he had at that time no color of title, having conveyed to Higgins the previous September. That conveyance, however, was by deed of warranty with full covenants, and 'when it was made, the taxes of 1861 had been assessed, and were a lien on the land. He was therefore obliged to pay them, and their payment by him was under the title conveyed by him to Higgins. This made out the seven years’ payment of taxes by Yocum, and it is therefore unnecessary to advert to the objections taken to the payments made by Pangborn.

It is further objected that the deed from Pangborn to Yocum, did not properly describe the land. It is described as the east half of the south-east quarter of section fourteen, in Liberty township, one west of the fourth principal meridian, in the county of Mercer, and State of Illinois. It is conceded there is no township called “ Liberty ” in Mercer county. That designation must therefore be rejected as surplusage, and the question then is, whether the description of. the land as the east half of the south-east quarter of section fourteen, in township one, west of the fourth principal meridian, in Mercer county, Illinois, is sufficient. There are three sections fourteen in range one west, in Mercer county, and it is contended that this description is void for uncertainty, the number of the township north of the base line being omitted. Bat it is proved that Pangborn, when he made this deed to Yocum, occupied the east half of the south-east quarter of section fourteen, in township thirteen north, in range one west, in Mercer county, and that he claimed it under his deed from Graham, properly describing the land, and that Graham had himself occupied it since 1846. The case is thus brought directly under the authority of Dougherty v. Purdy, 18 Ill. 208. It is there held, that an ambiguity of this sort is a latent ambiguity, the only objection to the description being, that it appears, by reference to the government surveys, that it may equally apply to several pieces of land, and that this ambiguity, being latent, is susceptible of explanation, and is explained when it is shown which of these several pieces the grantor claimed. This fact being shown, the court will then apply the description to that land. We are not inclined to depart from the authority of that case, which has become a rule of property, and under that authority must hold the deed from Pangborn to Yocum valid.

The other objection taken to the defendant’s evidence has been considered in the case of Clark v. Peckenpaugh (46 Ill. 11), argued with this case.

The judgment must be affirmed.

Judgment affirmed.