Corrington v. Pierce , 1888 Ill. App. LEXIS 23 ( 1888 )

C. B. Smith, J.

This was an action in trespass begun before a justice of the peace by appellee against appellant, for throwing down a fence erected by Pierce on land Corrington claimed to own. The plaintiff, Pierce, recovered a judgment for §25 before the justice, and Corrington appealed to the Circuit Court, where the plaintiff again recovered a judgment for §25, and Corrington brings the case to this court on appeal. The facts out of which this controversy grows are these; Corrington owned eighty-five acres of land in section 28. Pierce owned several lots abutting Corrington’s land on the east, and one Joseph Cody also owned one lot south of Pierce’s lots, and also abutting Corrington’s land. The same line which divided 'Corrington’s and Pierce’s land also divided Corrington’s and Cody’s land. Before the controversy between Pierce and Corrington began, it appears that Cody put his fence over on what Corrington claimed was his land, and thereupon Corrington sued Cody in forcible entry and detainer before a justice of the peace. At the time set for the trial of this case, a verbal agreement was made between Corrington on the one side, and Pierce and Cody on the other, that the dispute about the line should be settled by surveyors to be chosen by the parties, and that the surveyors should go on the land and survey it and locate the disputed line and that all three of the parties should be bound by the line as located by the surveyors. ,To accomplish this end the suit between Corrington and Cody was continued until after the survey should be made. The surveyors were selected and made the survey and located the line in pursuance of this agreement. After the line was thus located, Cody repudiated his agreement and refused to abide by the line located by the surveyors. Pierce was present and heard Cody refuse to abide by his agreement and was also present at the trial between the parties afterward, but took no part in the first conversation when Cody said he would not stand by the survey; nor did he take any part in the subsequent trial between Cody and Corrington. Shortly after the survey and after the trial between Corrington and Cody, Pierce informed Corrington that he was abiding by the survey and expected him, Oorrington, to do the same thing and that he would build his fence on the line established by the surveyors, which he did in a short time, but not putting his fence as far, by an inch or so, as the line authorized him to do. Corrington thereupon tore down the fence placed there by Fierce. Corrington now contends that, inasmuch as Cody refused to stand by his agreement with the knowledge of Pierce, Pierce must also be held as repudiating it, and that he is therefore also released from any obligations under this contract to Pierce. We can not concur in this view. Cody and Pierce had no joint interest in the line, nor in the lands abutting the line. Their interest in the line and land were several and entirely distinct, and we think each one of the parties were separately bound by their agreement and that neither one could destroy the obligations existing between the others without their consent. If they had been jointly interested in the land, it might be that the act of one would then bind the others. The authorities cited by appellant are unlike the case at bar, and can have no application to this case. The court instructed the jury in harmony with the views herein expressed.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.