Prettyman v. Walston. After the deed from Snell of March, 1856, it is in evidence, appellant took possession, Snell having abandoned the premises himself, leaving his family in the house for a few days, when they were taken away. In November, 1857, appellant leased the premises to Stone and McDougal for two years. The inference then is irresistible, that appellant went in under the deed from Snell and thereby became the tenant of appellees, and having thus assumed that relation, and entering under that title and the tenancy still existing, he cannot be permitted now to dispute it. Rigg v. Cook, 4 Gilm., 351; Dunbar v. Bonesteel, 3 Scam., 34; Ferguson v. Miles, 3 Gilm., 359; Tilghman v. Little, 13 Ill., 241. The appellant became, by Snell's deed, the assignee of the whole term, and as the covenants run with the land, the lessor can maintain an action against him, for the stipulated rents. Taylor's Land. and Ten., 218; Armstrong v. Wheeler, 9 Cow., 88; Williams v. Woodward, 2 Wend., 487; Acker v. Witherell, 4 Hill, 112. But it is urged by the appellant, that the court erred in admitting in evidence the lease from appellees to R. H. Snell, it being a record copy only. The objection was, that no foundation had been laid to authorize the introduction of a copy. The preliminary proof was the affidavit of Walston, one of the plaintiffs, and of James Roberts their counsel and attorney. Walston, sworn, stated, that he had not in his possession, power or control, the lease declared on. Roberts stated that he never had, since the commencement of the suit, the original lease set out in the declaration, and has never seen it, and that it is not within his possession, control or power to produce on the trial. Under the rules established by this court in Rankin v. Crow, 19 Ill., 626; Booth v. Cook, 20 id., 129, and Stow v. The People, 25 id., 81, this preliminary proof would not have been sufficient, but the legislature has since interposed and by an act to amend chapter 24, title "conveyances," have provided, whenever upon the trial of any cause in law or equity, any party to the cause or his agent or attorney in his behalf, shall Prettyman v. Walston. orally in court, or by affidavit to be filed in the cause, testify and state under oath that the original of any deed, conveyance or other writing of or concerning lands, tenements and hereditaments, which may have been acknowledged or proved according to any law of this State, and which by virtue of such law shall be entitled to be recorded, is lost, or not in the power of the party wishing to use it on the trial, the record of such deed as certified by the recorder in whose office it may have been. recorded, may be read in evidence in any court in this State with like effect as though the original deed &c. was produced and read. Sess. Laws 1861, p. 174. This evidence fulfilled the conditions of this statute, the lease having been properly acknowledged and recorded in the proper office. The deed from Snell to appellant was objected to as evidence on the ground that it was only a general quit-claim deed, and the land claimed was not named in it, and that Snell had other lands in the county designed to be and actually conveyed by it. The objection has no foundation, since it was open to proof, what passed by the general description in the deed. The record of the deed was competent evidence, notice having been given to appellant to produce the original, which is presumed to be in his possession and under his control. What it proved, whether it conveyed the leasehold interest or not, was another question, and on that question we have no doubt. The estate conveyed by the lease is embraced in the words " ali our right, title and interest at law or in equity in and to all lots and parts of lots in the city of Pekin." Snell had a legal estate in the lots leased, and they passed by the deed. Doty v. Wilder, 15 Ill. 411. Appellant having entered under the lessor, and thereby become the tenant of the lessor of the whole term, he was, from his position, bound to pay the annual taxes assessed upon the premises while he occupied them. Mrs. Walston was tenant for her life of the premises, and appellant her lessee by assignment, and the doctrine is that it Prettyman v. Walston. is the duty of such tenant to pay all the taxes assessed during his tenancy, and if he neglects it and suffers the land to be sold for the taxes, and purchases it himself, or suffers a stranger to purchase, and then procures a release to himself, he can acquire no right to the estate against the owner in fee. Blackwell on Tax Titles, 472; Varney v. Stevens, 22 Maine, 361; Young v. Hughes, 5 Gil. & Johns. (Md.) 67; Me Williams' lessee, v. Robbins, 5 Ohio, 28; Cairns and wife v. Chabert and wife, 3 Edw. Ch. 312; Burhans et al. v. Van Zandt et al., 3 Seld. 523; Trustees of the Village of Elmira v. Dunn, 22 Barb. 402. But if the appellant did enter into possession under the sheriff's deed, still, having appellees' life estate by assignment from R. H. Snell, he was bound to pay appellees the stipulated rent without any deduction for the taxes, he being bound to pay them either as assignee of the term, or as owner of the fee, both estates being united in him. He cannot, in any shape, set up the taxes as a deduction against the rent, or recoup them, as he was bound to pay them. Much controversy is made over the pleadings in the cause which we do not deem necessary to notice particularly, the merits of the case being contained in the points we have discussed and decided. We will say, however, that a record showing pleadings so confused and irregular, as they appear in this, has rarely come before this court. We have endeavored to find the grains of wheat, and having found them, have disposed of them as we think they should be according to the law, as we understand it. The judgment of the Circuit Court must be affirmed. Judgment affirmed. Holliday et al. v. Burgess, Executrix. JOHN C. HOLLIDAY and HIRAM REED V. HENRIETTA BURGESS, Executrix of JAMES BURGESS. 1. SALE OF PROPERTY — delivery. As between the parties, the title to personal property passes without any delivery, whenever the sale is completed. An agreement to sell an article by weight or measure, when the article is identified and the price agreed upon, may be a complete sale, if the parties intended it as such, although the article sold is not weighed or measured. 2. INSTRUCTIONS. A judgment will not be reversed because an instruction leaves out the words "from the evidence," after the word "believe," unless it appears that the jury were misled thereby. APPEAL from the Circuit Court of Kankakee county; Hon. CHARLES R. STARR, Judge, presiding. This was an action of replevin brought by Holliday & Reed v. James Burgess, as sheriff of Kankakee county, to recover 1200 bushels of corn in a crib. There was a verdict of not guilty. The facts, so far as they are at all material to the points decided, appear in the opinion of the court. Messrs. LORRAINE & BONFIELD, and Messrs. LELAND & BLANCHARD, attorneys for the appellants. Messrs. GLOVER, COOK & CAMPBELL, attorneys for the appellee. Mr. JUSTICE BECKWITH delivered the opinion of the Court: This is an action of replevin for a quantity of corn. The plaintiff's claimed title to it under a purchase from Augustus T. Ingham, whom they claimed to be the owner. The defendant claimed that the corn belonged to George H. Ingham, and, as the sheriff of Kankakee county, he had levied upon it as the property of the latter by virtue of an execution against him. On the trial there was evidence tending to prove that Augustus T. Ingham raised the corn on the Ingham place, and that it was his property and the sale to the plaintiffs; and there was 13-34TH ILL. 34 193 22a 524 Holliday et al. v. Burgess, Executrix. also evidence tending to prove that George H. Ingham was the owner of the corn. The third instruction given for the defendant was, that "if they (the jury) believed from the evidence that Augustus T. Ingham agreed with Holliday & Reed to sell them all the corn he raised on his place in 1860, more or less, at a stipulated price, and that the corn in dispute was raised in 1860 on said place, yet, that of itself, did not give Holliday & Reed the property in the corn in question, and the jury should find for the defendant. We think this instruction was likely to mislead. As between the parties, the title to personal property passes without any delivery, whenever the sale is completed. An agreement to sell an article by weight or measure, where the article is identified and the price agreed upon, may be a complete sale if the parties intended it as such, although the article sold is not weighed or measured. Riddle v. Varnum, 20 Pick. 280. The objection to the instruction is, that it assumes that, under the evidence, an agreement to sell, was not, and could not be a complete sale. The evidence tends to establish that the corn in controversy had at that time been harvested, and that in pursuance of the agreement it was afterwards set apart for the plaintiffs. We think it should have been submitted to the jury, to determine whether the parties had, by the agree ment and the acts done under it, completed the contract between them. O'Keefe v. Kellogg, 15 Ill. 347; Wade v. Moffett, 21 id. 110. If the agreement and the acts done under it were intended by the parties as a completion of the contract, the title to the corn passed, as between them. The second instruction was erroneous in form in not containing the words "from the evidence," after the word "believe;" Ewing v. Runkle, 20 Ill. 445; but we should not reverse a judgment for that defect, unless it appeared that the jury were misled thereby. For the error in the third instruction, the judgment of the court below must be reversed and the cause remanded. Judgment reversed. |