Grimes v. Butts

Citations

• 65 Ill. 347

Syllabus

<p>1. Trespass to realty—evidence tending to show exclusive possession. Where a defendant, who was sued in trespass for entering upon the possession of plaintiff and carrying off rails, sought to justify upon the ground that the premises entered were a part of the estate of a deceased person, and that his wife was one of the heirs, in whose right he acted, and that no legal partition had ever been had, but that plaintiff and his wife were tenants in common, the plaintiff offered in evidence the record of proceedings for partition made long before the alleged trespass, but which wrerc defective in failing to show that the report of partition had ever been approved, and showed by other evidence that possession had been taken by the several parties in interest, of the parts assigned to each, the minors acting through guardians, and an acquiescence for several years. The circuit court excluded the record as evidence, and a verdict was had for the defendant: Held, that the court erred in excluding the evidence, as it tended to show an exclusive possession which, if shown, entitled the plaintiff' to recover.</p> <p>2. Instructions—exception to. When the record fails to show any exception taken to the giving or refusing of instructions, the ruling of the court below in giving or refusing them will not be considered by this court.</p>