Shackleford v. Bailey

35 Ill. 387

• Court: Illinois Supreme Court
• Decided: April 15, 1864
• Status: Published

Opinion

Mr. Justice Beeese

delivered the opinion of the Court:

It is agreed by the parties to this record, that the bill of exceptions taken on the trial shall be considered the record in the cause, and the facts stated in it shall be taken as all the proofs in this behalf, and the Supreme Court shall decide upon the merits of the case as shown by the bill of exceptions.

Common courtesy, laying out of view the duty of the plaintiff in error, required him to present, in his abstract, this bill of exceptions, and the instructions of which he complains. This he has not done, and for the inexcusable omission, we might weE refuse to consider the case on his abstract. We warn the counsel for the plaintiff in this case, and aU others in other cases, that we will not consider a case on an abstract so imperfect as this is, and so entirely at variance with the rule requiring abstracts. We cannot, with the immense labor devolving upon us, pick out the facts contained in a voluminous record, and thus perform duties devolving on counsel, and we will not do it. We wiU hold them to a strict observance of the rules.

To understand this case properly, as it is presented by the biE of exceptions, it is only necessary to advert to two facts. First. The deed first introduced as evidence is for thirty-four acres of land out of a certain tract of land, without specifying the part of the tract out of which it is to be taken. This deed is void for uncertainty, as the land sold cannot be located. It cannot be ascertained by the description. Laflin v. Herrington et al., 16 Ill. 304; Hughes v. Streeter, 24 id. 647.

The deed for the seven acres should not have been admitted, for the reason the land in controversy lies in range five west, whereas the land conveyed in this deed lies in range five east, consequently, it cannot by any possibility, be the same land.

These deeds being taken from the jury, the defendant showed no color of title, and, therefore, should not have had the verdict. Color of title and payment of taxes must concur. Chickering et al. v. Failes et al., 26 Ill. 507. And the color must arise out of some conveyance purporting to convey title to a particular tract of land. Dickenson v. Breeden, 30 id. 279, and cases there cited.

There is no proof in the case that the premises were vacant and unoccupied for seven successive years before the commencement of the suit. Nor was it the province of the jury to determine what is color of title made in good faith, consequently the court should not have given the first instruction. No particular objection is alleged against the other instructions ; we therefore refrain from any remarks upon them.

We perceive no reason why the court should not have granted a new trial under the statute, after the record was amended at the February Term, 1860, by putting the verdict in proper form. As rendered, the verdict was, simply, we find for the defendant. After being put in form, the plaintiff paid the costs and demanded a new trial under the statute. TTia motion should have been allowed. Scates’ Comp. 218, § 30.

The judgment is reversed and a venwe de novo ordered.

Judgment reversed.