Morrison v. Kelly. entered a motion for a new trial, which motion was overruled by the court, and judgment rendered against the plaintiff for costs. Plaintiff filed a bill of exceptions, of which the following is an abstract: Plaintiff read in evidence, First. An exemplification of a patent from the United States to Henry Green, assignee of Allen H. Howland, for the west fraction of the south-east fractional quarter of section six, in township thirty-three north, of range four east of the third principal meridian. Said patent is dated October 1st, 1839. Second. A warrantee deed from Henry Green to Aaron Reed, Sen., conveying the one undivided one-half of said west fraction in said patent described, to said Reed, in trust for and to the separate use of Catharine Howland, wife of Allen H. Howland, and providing that, in case of the decease or legal incapacity of said Reed, before the full execution, discharge and performance of all and singular the trusts in and by said deed created or declared, then, in either case, the trusts shall be executed, discharged and performed by the court of chancery of the judicial district or circuit in which La Salle county shall then be situated; and that the estates in and by said deed granted and conveyed to said Reed, shall, on the decease or legal incapacity of said Reed, vest in such court of chancery as aforesaid, subject to all and singular the trusts and confidences in said deed created and declared, and that said court of chancery shall exercise the same powers and perform all and singular the trusts that may remain unexecuted and unperformed, with the same legal effect as the said Reed might or could, were he capable of performing the same; and that the mode of performing said trusts shall be such as said court of chancery shall order or decree, or agreeable to the course of practice of said court. Said deed is dated December 26th, 1835, and was filed for record, March 24th, 1847, in the recorder's office of La Salle county, and duly recorded. Third. A certain petition by Allen Howland and Catharine, his wife, Theodore N. Morrison and Ann Eliza, his wife, and Henry A. Howland, a minor, by George Howland, his next friend, filed in the Circuit Court of La Salle county, and State of Illinois, on the 1st day of March, A. D. 1852, and a decree of said Circuit Court, according to the prayer of said petition, appointing Theodore N. Morrison, trustee, in the place of Aaron Reed, Sen., deceased, and vesting the legal title in fee simple of, in and to the one undivided one-half of the west fraction of the south-east fractional quarter of section No. six, in township No. thirty-three north, and range four east of third principal merid Morrison v. Kelly. ian, in Theodore N. Morrison, as fully and absolutely as the same was vested in the said Aaron Reed, Sen., by the said deed from Green to Reed. The plaintiff then read in evidence a deed from Allen H. Howland and Catharine Howland, his wife, to Theodore N. Morrison, by which the said Catharine Howland and Allen H. Howland, her said husband, quitclaimed, released and conveyed to the said Theodore N. Morrison, all the interest which they had in and to the undivided one-half of the west fraction of the south-east fractional quarter of section six, township 33 north, range four east of the third principal meridian. Said deed was dated 12th of January, A. D. 1858, and duly recorded in the recorder's office of La Salle county. The court permitted the said Allen H. Howland, husband of Catharine Howland, to testify, to which defendant objected; the court overruled the objection, and defendant excepted. Said Howland testified that he was well acquainted with the premises described in the declaration, and they were a part of the said west fraction of the south-east quarter of section six, township thirty-three north, of range four east of the third principal meridian. Plaintiff here rested his case. The defendant, to maintain the issues on his part, read in evidence a deed from Henry Green to Wm. H. W. Cushman, for the one undivided one-half of the North fraction of southeast fractional quarter of section six, in township thirty-three north, of four east of the third principal meridian. Which deed was filed for record March 17, 1841, and bears date March 10, 1841. And also a deed from the said Green to said Cushman, for the one undivided one-half of the west fraction of the southeast fractional quarter of said section six, dated March 28th, 1842, and filed for record, March 29th, 1842. The defendant then read in evidence, receipts for the payment of taxes on the undivided one-half of the west fraction of the south-east fractional quarter of said section six, for the years 1848, 1849, 1850, 1851, 1852, 1853, 1854, and 1855, under the title derived through the conveyance from Green to Cushman. The tax receipt for 1849, was dated April 13, 1850. And it appeared that Kelly was in possession under the title, if any, which passed from Green to Cushman; Cushman having parted with the title after the recording of the deed from Green to Reed. The plaintiff objected to the introduction of said receipts. The defendant then proved that they were executed by the collector of taxes, for the years respectively when they purported Morrison v. Kelly. to have been paid. The court then admitted them, and to the opinion of the court in so doing, the plaintiff excepted. Defendant read in evidence a deed from Henry Green and wife to Henry L. Brush, for the undivided one-half of the west fraction of the south-east fractional quarter of said section six; dated August 31, 1835. Defendant rested. The plaintiff read in evidence a receipt for the payment of the taxes of 1849, which receipt is in the words and figures following, to wit: "Received, Ottawa, March 18, 1850, of Allen H. Howland, by W. H. W. Cushman, thirty-nine 40-100 dollars, in full for taxes of 1849, upon personal property, and the following real estate, to wit: The plaintiff called Dr. Howland, who testified as follows: My recollection is, that Mr. Cushman agreed to pay my taxes for the year 1849 for me; I gave him a schedule of the lands on which I had to pay the taxes for the year 1849; Mr. Cushman took the schedule and paid my taxes for the year 1849 for me, and kept the tax receipt several months, until I paid him; I paid the taxes of 1849 on the undivided one-half of the west fraction of the south-east fractional quarter of section six, township 33, range 4 east of the third principal meridian, under the deed from Henry Green to Dr. Reed; I had direction from Dr. Reed to pay the taxes of 1849; Dr. Reed furnished the money to pay these taxes indirectly; he held a note against me for five hundred dollars, and the money paid for these taxes was credited by Reed on my note to him. In December, 1835, when Mr. Green made this deed to Dr. Reed, I had a field running across the line, between the two quarter sections, a part of the field being on the east side of the line; on the west fraction of the south-east fractional quarter of section six, I had a log house in the field, on the line between the two quarter sections; one-half of the log house was on the Morrison v. Kelly. east side of the line, and one-half on the west side; the field was made to extend across the line, between the two quarter sections, in order to get a pre-emption on both tracts, and which pre-emption I obtained in May, 1835; I had possession of the land, by myself or tenants, and cultivated this field each year, from 1833 until 1840; in the fall of 1833, I built a cabin on this tract, and built some fence on it, and in the spring of 1834 I made a field of seven acres on it and the adjoining tract—half on each tract; I continued to cultivate, and was in possession, by my tenants or by occupying and cultivating myself, every year until 1840; in the spring of 1840, I leased it to Alexander and went East, and did not return here until January, 1842; the deed from Green to Dr. Reed, was taken East, through mistake, by my wife, who was the daughter of Dr. Reed, and was not returned until 1847; I supposed that the deed had been recorded; after the conveyance by Green to Reed, I was in possession under the deed from Green to Reed, as the agent of Dr. Reed; in February, 1842, after I had returned from the East, I was looking over the records in the recorder's office, and found a deed from Green to Cushman, for the north fraction of section six, township thirty-three, range four; I went immediately to them to inquire what it meant; they were both at Cushman's store; I told Mr. Cushman about this deed, and asked him what it meant; he said, I suppose it is the land you used to own, or pretended to own, up in the bend of the Fox; what, said I, that land the field is on? he said it was; I told him that Green had before deeded that land to Dr. Reed, and I asked Mr. Green how he came to deed that land twice, if he meant that land, as the deed to Mr. Cushman called for the north fraction; he said it was a mistake, and he would clear the title by paying Mr. Cushman what he owed him, when he should sell his wheat; Mr. Cushman then said, if Mr. Green paid him he would give up the land. During five or six years subsequent, I had several conversations with Mr. Green and Cushman separately, in all of which Mr. Cushman said he would give it up when Green paid him, and Mr. Green invariably said he meant to clear the title. About 1849 or 1850, Mr. Green told me he had paid Cushman, and that Cushman could give up the land; I then told Mr. Cushman, at his residence, in front of Mechanics' Hall, that Green had told me that he had paid him what he owed him, and that he (Cushman) could now give up the land; Mr. Cushman replied, well, if he says so, so it must be, I suppose. I then asked Mr. Cushman when he could attend to the matter; he replied, he would attend to it in a short time; I had never before this heard one word about my owing Mr. Cushman anything; but when I asked him again when he would give up the land, he said he would give it Morrison v. Kelly. up when I paid him what I owed him; and Mr. Green afterwards told me that Mr. Cushman was holding on to the land for some old demand which I owed him, Cushman. I gave him a deed for a piece of land to pay this demand, and he gave me a bond for reconveyance when I paid him; I offered to give a mortgage of the land, but he insisted that the land should go to pay the demand, if I failed to pay it; the land conveyed by me to Cushman, was then worth much more than the demand he had against me. I afterwards asked him what demand he had against me; he said it was the demand for which I conveyed him this land; he said the land did not sell for enough to pay the demand; I told him that he insisted on taking the land in payment of the demand, and that it would have sold for more than enough to pay this debt at the time he took the land. Afterwards I had a conversation with Mr. Cushman; I told him that if he did not attend to this matter soon, I should commence suit against him for the land; I told him to figure up all the money due on the old bond, and the interest on it at ten per cent., and I would, for the sake of having the matter settled up, pay it to him, if he would give up the land. I believe there were frequent conversations between Mr. Cushman and myself, about my old Woodworth controversy; this controversy arose about my improvements and possession of the premises now in controversy, for the purpose of getting a pre-emption; Woodworth having contested my right to a preemption. He, Cushman, was a witness in that suit; I spoke to him, or in his presence, about my improvements on the land now in controversy; when I returned from the East, in January, 1842, the house remained there; the roof was off, and the logs partly down; some of the fence was still remaining; the field was perfectly perceptible; it was plowed in 1840; the field, house and orchard were all on there, and in good repair, until I went East in May, 1840; Mr. Green never exercised any acts of ownership over the land in controversy, but was a witness for me in 1837, in the suit with Dr. Woodworth, in which he swore that I had made improvements on it; nor did he exercise any acts of ownership after he sold it to Cushman, except to steal the rails away, and this he denied to me over and over again; said he had not meddled with them, and that the Irish must have stolen them. Dr. Howland also testified that the consideration for the conveyance by Green to Brush, passed from Brush to him (Howland), and that Green received nothing for making this deed. The plaintiff called one Watkins, who testified: I am acquainted with the location of the west fraction of the south-east quarter of section six, township thirty-three, range |