
    Elizabeth Boyer et al. v. Robert N. Thornburg et al.
    
    
      Filed at Ottawa January 25, 1886.
    
    
      Ejectment—plaintiff must recover on the strength of his own title. A plaintiff in ejectment must recover on the strength of Ms own title, and not on the weakness of the defendant’s. The title in any one other than the plaintiff will defeat a recovery.
    Writ of Error to the Circuit Court of Will county; the Hon. George W. Stiff, Judge, presiding.
    
      Messrs. Van Arman & Valette, and Mr. Henry Decker, for the plaintiffs in error:
    The acknowledgment,of Thornburg that he went into possession under Boyer, is sufficient to entitle .Boyer’s heirs to recover. Taylor on Landlord and Tenant, sec. 706; Bigelow on Estoppel, 376. .
    If the tenant acquires the superior title, he must surrender possession and bring his action of ejectment. The law will not allow him to take any advantage whatsoever by the possession acquired from his landlord. Washburn on Real Prop. 482, 399; Auking v. Pierce, Breese, 260; Furgeson v. Miles, 3 Gilm. 358; Tilghman v. Little,. 13 Ill. 241; Fusselman v. Worthington, 14 id. 135; Brown v. Keller, 32 id. 151; Carter v. Marshall, 72 id. 601; Doty v. Burdick, 83 id. 473.; Cox v. Cunningham, 77 id. 345; Hardin v. Forsyth, 99 id. 545; Taylor on Landlord and Tenant, (5th ed.) secs. 89, 92.
    Mr. G. D. A. Parks, and Mr. B. E. Barber, for the defendants in error:
    Thornburg was in possession of the premises long before Boyer acquired his claim, and never became the tenant of Boyer. It is claimed that Thornburg in his lifetime admitted his tenancy. Evidence of admissions shown after the death of the alleged speaker is received with great jealousy and caution, when they consist of loose, casual conversations not shown to have influenced the conduct of any one. This is especially so when such admissions are sought to be used to create or defeat titles to real estate. Ray v. Bell, 24 Ill. 452 ; Winslow v. Cooper, 104 id. 231; Bragg v. Geddes, 93 id. 60; Young v. Fouts, 43 id. 39; O’Reilly v. Fitzgerald, 40 id. 313; Ayers v. Metcalf, 39 id. 307; Frizell v. Cole, 29 id. 465; 1 Greenleaf on Evidence, secs. 200-204.
    An outstanding title was shown, which is a perfect defence to a plaintiff who has never been in possession. This rests upon the rule that the plaintiff must recover on the strength of his own title. Doty v. Burdick, 83 Ill. 473; Hulick v. Scoville, 4 Gilm. 172; Masterson v. Cheek, 23 Ill. 75; Stuart v. Dutton, 39 id. 95; Ballance v. Flood, 52 id. 52.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Elizabeth Boyer, Julius Boyer, Emma Cornean and Florence Paulson, in ejectment, against John Thornburg and Robert Thornburg, and was to recover a quarter section of land described by its numbers in the declaration. After the death of John Thornburg, his heirs at law, by leave of court, were made -defendants. Only the plea of not guilty was filed by defendants, and on the trial, without the intervention of a jury, the court found plaintiffs were the owners in fee of an undivided one-half of the quarter section, and rendered judgment in the usual form that they recover the same. As to the other undivided one-half, the court found defendants not guilty. Not being satisfied with the finding and judgment in their favor, plaintiffs entered a motion for a new trial, which was by the court overruled. An exception to the decision of the court was taken in the usual mode, and plaintiffs bring the case to this court on error.

A certified copy of a patent from the United States to James B. Lowry and Nathaniel A. Lowry, dated October 30, 1839, conveying to them the land in question, was admitted in evidence. Proof was made that Nathaniel A. Lowry was dead. Quitclaim deeds from his heirs were introduced in evidence, which slu^v the patent title to the undivided one-half of the quarter section was in plaintiffs at the time this suit was commenced. The other undivided one-half of the premises never came to them by any conveyances from James B. Lowry. It would seem to be, from the evidence, outstanding in one Charles M. Macubin. If this were all the evidence in the case it is quite clear plaintiffs could in no event recover more than the undivided one-half of the quarter section, as they dicl. It is a familiar principle that a plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of his adversary. It is no matter whether the title is in defendants or not. If it is in any one other than the plaintiffs, that will defeat the recovery. It is apparent plaintiffs in this suit never had the patent title to more than one undivided half of the premises. The patent title to the other undivided one-half is still outstanding in some one else.

It is claimed, however, that Charles A. Boyer, to whose rights in the premises plaintiffs have succeeded, by inheritance, as his heirs at law, in his lifetime was the owner of the entire quarter section, and that John Thornburg, under whom defendants claim title, entered into possession under him, as tenant or otherwise, and are therefore estopped to deny his claim of title, whatever it may be, and must accordingly surrender their possession to plaintiffs. It is for that reason it is insisted the finding of the court was erroneous as to the other undivided one-half of the quarter section. The position taken is not fairly supported by the evidence. The testimony bearing on the question made has been examined, and it is thought it is so uncertain whether John Thornburg entered into the possession of the premises under Boyer, as tenant or otherwise, that the present judgment can not be disturbed. It is proved wdth reasonable certainty that John Thornburg entered into possession of the premises as early as 1860, or in 1861, and this suit was not brought until September 6, 1880. It seems probable if John Thorn-burg was a mere tenant of Boyer, the latter could, and no doubt would, have recovered the possession long years before his death, or else had some written contract as to 'the terms on which Thornburg should occupy the premises. Nothing of that kind was done, and no reason is perceived for being dissatisfied with the finding of the circuit court upon the evidence, and its judgment must be affirmed.

Judgment affirmed.  