Koon v. Nichols

63 Ill. 163

• Court: Illinois Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

Mr. Justice Sheldon

delivered the opinion of the Court:

The declaration in this case stated that the plaintiff claimed the premises in fee simple.

The cause was tried by the court without a jury. The court found, merely,the issue for the plaintiff. The judgment thereupon Avas as follows: “And said suit having been brought for the recovery of the fee simple in the following described messuage to wit: the south half of the east half of the southwest quarter of section 8, in township 31 north, range 11 east, third principal meridian, it is therefore ordered and adjudged by the court that the said plaintiff recover of the said defendant the -premises as aforesaid described, and that he have a writ of possession therefor.”

The finding and judgment of the court were defective in not specifying the estate to which the plaintiff was entitled in the premises. Rawlings v. Bailey et al. 15 Ill. 178; Patterson v. Hubbard et al. 30 Ill. 201.

The 7th clause of the 24th section of our ejectment act provides that “the verdict shall also specify the estate which shall have been established on the trial by the plaintiff, in whose favor it shall have been rendered, whether such estate be in fee, for his own life, or for the life of another, stating such lives, or whether it be for a term of years, specifying the duration of such term.”

It is claimed that the judgment, taken all together, shows with sufficient certainty that an estate in fee simple in the premises was recovered.

But we regard the recovery named in the judgment as being merely of the premises, as described in the declaration, with no reference whatever to the estate in the premises, as described in the declaration.

The judgment of the court below must be reversed and the cause remanded.

Judgment reversed.