APPEAL from the Circuit Court of Henry County; the Hon.
LEONARD E. TELLEEN, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This appeal seeks a review of a judgment entered by the circuit court of Henry County wherein the plaintiff failed in his action for declaratory judgment to have fixed in him the title to a schoolhouse site located on his 120-acre farm.
The complaint herein was filed on October 13, 1949. It alleged that the plaintiff was the owner and in possession of a certain 120-acre tract and that the defendant Trustees of Schools is a corporation, and for many years, and until about two years previously, maintained and operated a public school on a small tract of about three fourths of an acre in area on the southwest corner of his farm, at which time school was closed and the school site was abandoned; that in the summer of 1949 the defendant Trustees of Schools held a public sale and auction and pretended to sell said school lot with the school building located thereon to defendant Creighton Wilson for $1130, and received from said purchaser a portion of the purchase price at said sale; and that they are preparing a deed to said land for delivery to said purchaser in exchange for the balance of the purchase price; that defendants claim said school lot adversely to plaintiff and plaintiff will be greatly injured and damaged by the completion of said sale; that plaintiff has requested defendant Trustees of Schools to vacate said school lot but said defendant contends it has a superior right to said property and a dispute exists between plaintiff and defendant as to the ownership and right of possession of said lot, and thus a justiciable controversy exists between plaintiff and defendant as to the right of possession of said school lot and the use thereof. Wherefore plaintiff prayed that the court order, adjudge, and decree that plaintiff is the owner of the entirety of the 120-acre tract, which is described in the complaint, including the school lot mentioned.
Afterwards, Ada Wilson was made an additional defendant, and all defendants filed answers. The answers of all defendants deny that the plaintiff, or his predecessors in title, have ever been in possession of said schoolhouse lot or have any right or title thereto or have ever made claim thereto until the commencement of this suit, and aver that prior to the year 1866 a public school was established in what was then known as District No. 3, and a public schoolhouse was erected on a small tract of land containing less than three fourths of an acre in the southwest corner of the tract, and aver adverse possession of said tract for public-school purposes from that time until September, 1947, when District No. 3 became a part of Unit School District No. 226 in Henry County. Thereafter proceedings were taken, as provided by statute, for selling the schoolhouse tract and schoolhouse which are in controversy in this proceeding. The answers admit that no record exists of there ever having been a conveyance of said tract to the Trustees of Schools, but that the defendants have title by adverse possession; further aver that plaintiff's title is derived from Oliver C. Barnes, who purchased the land now owned by the plaintiff by deed dated April 12, 1866, recorded April 16, 1866, in Book 54 of the records in the office of the recorder of deeds of Henry County, at page 54, and that the deed to Oliver C. Barnes, following the description of the 120-acre tract, contained the following words: "excepting the School House Lot," and that by said deed Oliver C. Barnes acquired no title to the schoolhouse lot in question, and that the subsequent deeds in plaintiff's chain of title, purporting to convey the entire 120-acre tract, did not convey to him title to the schoolhouse site by reason of the exception. The answers further averred that defendant Wilson, on October 13, 1949, and before the service of summons in the case, had paid the balance of the purchase price and received from the defendant school trustees a deed for said premises which had been executed on October 5, 1949.
There is no conflict as to the controlling facts in this case. On the trial it was stipulated that the title from the government to the 120-acre tract was in one H.D. Davis on May 10, 1854, and that on February 11, 1856, H.D. Davis conveyed to Oliver D. Barto, by warranty deed, the entire 120-acre tract. A deed was introduced from Oliver D. Barto and wife to Oliver C. Barnes, containing the words "excepting the School House Lot." The deeds in the chain of title from Barnes down to the plaintiff for the 120-acre tract did not contain any exception of the schoolhouse lot.
Plaintiff, Mell Powell, testified he was 62 years of age and had lived in the vicinity practically all his life and that the school building had been in the present location as long as he could remember; that he lived on the land and farmed it from 1906 to 1946; that he had never measured the area used, while the school was operated, as a schoolyard but imagined it was about one third of an acre and might be a little more; that there was a garage and a coal house and two outside privies, and that there is a fence around this schoolyard and it has been there as long as he could remember; that he had been familiar with that location since about 1904 and the schoolhouse was in its present location when he first knew the place and continued to be in the same location. He further testified that nobody occupied the schoolyard and building from the time it was abandoned as a school until the Wilsons entered; that he went by there every week and "watched what was going on in the schoolhouse and went in and looked at it sometimes;" that Charles Ball, son-in-law of Wilson, lives there now on the school lot; that the farm buildings are about 80 rods east and about 20 rods south of the schoolhouse over on the other forty, that is, the southeast quarter of the southwest quarter; that to get to the farm buildings "we used the road that was put through in 1914 that runs between section 8 and section 5 east and west. We go south from the farm residence to the highway and we have used the road to the south fence since 1915. Before that we came down the 20 rods north along the fence between the two 40's and went through the schoolyard. The gate is still there. My tenants and employees went through the schoolyard every year as long as there was a school, whenever we had any lime or produce to haul. We would go through the school yard and have the corn picker come in to pick corn and would go through the school yard instead of going down a narrow lane. We went through there every month of the year except may be in February."
Evidence was offered showing that the schoolhouse lot was not excepted on the tax lists and that taxes had been paid on the entire 120 acres from the year 1865 when Oliver D. Barto was the owner.
The evidence further showed that the plaintiff had been a member of the school board from the year 1922 until the new Unit District was organized, and he was then elected a member of the board of the new Unit District and was still a member.
At the close of the evidence for the plaintiff, the defendants made a motion to find the issues in favor of the defendants and judgment was entered in favor of the defendants and against the plaintiff, and it was adjudged that the plaintiff was not at the time of said sale, and is not now, the owner of the small tract in controversy.
The complaint did not assert a right to the schoolhouse lot by reason of any alleged adverse possession but relied upon the legal title. In plaintiff's reply brief, it is stated that there was no claim by plaintiff that he took title to the lot by adverse possession. Therefore, the judgment of the trial court must be affirmed unless the record shows that the plaintiff has the legal title to the schoolhouse lot.
A plaintiff in ejectment must recover on the strength of his own title and not upon the weakness of that of his adversary, and if he claims title in fee he must show a fee-simple title and must deraign title from the government where there is no proof of a common source of title, nor of possession by plaintiff of the strip of land in controversy in himself nor in any prior grantor with whom he connects himself. (Krause v. Nolte, 217 Ill. 298; Allott v. Wilmington Light and Power Co. 288 Ill. 541.) There is no reason that this rule would not apply in an action for declaratory judgment as to title, which relies upon the legal title as the basis for the relief sought.
The record shows that Oliver D. Barto owned the 120 acres, and that he conveyed it to Oliver C. Barnes on April 12, 1866, but excepted therefrom the schoolhouse lot. This deed is in the chain of plaintiff's title and not only was Oliver C. Barnes estopped to deny the recital in that deed but since the deed was duly placed of record all persons claiming in the chain of title from Oliver C. Barnes are likewise estopped. Ambarann Coal Corp. v. Old Ben Coal Corp. 395 Ill. 154; Wiley v. Lamprecht, 400 Ill. 587.
Plaintiff seeks to avoid the effect of the exception in his chain of title on the theory that the defendants offered no proof of the location of the schoolhouse lot in 1866 when the Barto deed was filed and that the exception is void for uncertainty, and on the further ground that since the deeds in his chain of title subsequent to the Barto deed included the entire tract of 120 acres it made a prima facie title in plaintiff since there was no evidence of adverse possession of the schoolhouse lot.
We believe the trial court properly rejected the contentions of the plaintiff. It is well established that an exception in a deed is valid if the excepted land can be made certain by parol evidence. No other reasonable inference can be drawn from the words in the deed "excepting the School House Lot" than the presence of a schoolhouse somewhere on the 120-acre tract. If the exception had been "a lot for school purposes" then it might reasonably be argued that there was a tract of ground that could not be located by parol evidence on which it was expected to build a schoolhouse, but it is obvious that the tract of ...