Opinion of the Court.

widow and the four surviving children, and judgment was rendered in their favor for the full value of the certificate of membership, which was $5000. In no event could any greater sum have been recovered had this youngest child survived.

It is insisted it was error of law to render judgment in favor of the widow and the four surviving children, for the reason the benefit secured was to be paid to the widow and the children, equally, of whom the proof shows there were five when this suit was brought. The objection seems to be it was not proper to render judgment for the full value of the benefit, on a declaration in favor of the widow and four children, with the name of the deceased child omitted. It is not perceived there was any error in so rendering the judgment. There are two views, both of which sustain the action of the trial court: First, the benefit was, by the certificate, secured to be paid to the widow (by name) and children,that is, to Laura Hoffman, and to a class of persons designated as children, and to be ascertained after the death of the holder of the certificate. At the trial it was found, from the proof, there were but four children surviving. They then constituted all the class embraced in the term "children," and it was entirely correct to render judgment in their favor, as was done. Second, were this not so, the judgment might be sustained for another reason. It is provided by the certificate, that in the event of the prior death of the beneficiaries named, the benefit should be paid to the legal heirs or devisees of the holder of the certificate. A correct reading of this provision would be: in case of the prior death of any one of the class designated to take the benefit, the heirs of the holder would take the share of the deceased.party. Here, the plaintiffs were the heirs of the holder, and they took the whole benefit, and the judgment in their favor was regular, and authorized by law.

Opinion of the Court.

The point is made the circuit court erred in overruling the motion for a new trial. The argument on this branch of the case might have been with great propriety, and doubtless was, addressed to the Appellate Court when the cause was heard in that court. Whether the deceased was guilty of fraud in procuring a renewal of his membership, or whether the evidence warranted a finding for plaintiffs, and in the amount found by the verdict, are so exclusively questions of fact, the finding of the Appellate Court touching them is conclusive upon this court. They are all controverted questions of fact, arising on conflicting testimony, concerning which the statute forbids the assignment of any error in this court.

It is strenuously insisted it was error in the trial court to refuse to give the jury the ninth instruction of the series asked by defendant. It is as follows:

"The jury are instructed that the proofs of death offered in evidence are not evidence of what disease Peter Hoffman may have died, and can not be considered by the jury for that purpose.

Recurring to the conditions printed on the back of the certificate, it will be seen the benefit was not to become payable if the holder died by reason of any act of self-destruction whatever, whether at the time of committing the same he was sane or insane. The fifth paragraph also contained a number of conditions, the happening of any one of which would render the benefit non-payable. It was no doubt proper, in making proof of the death of the holder, to show he did not come to his death by reason of self-destruction, or by reason of doing any other act mentioned in the conditions, and annexed to the certificate of membership. Stating the disease

of which the holder died, is a satisfactory mode of excluding the hypothesis he may have died by self-destruction, or that he had been guilty of any other act the doing of which would annul and render void the certificate. The "proofs of death"

Syllabus.

were proper evidence, although containing, as they did, proof
of the disease of which the holder died, and it was not error
in the trial court to refuse the instruction in the form it was
asked. The principal controversy at the trial seems to have
been whether the application for the renewal of his member-
ship, as made by the deceased, and which it is conceded was
a warranty, was false and fraudulent. In the proofs it was
stated the disease of which the holder of the certificate died,
was pneumonia. There does not seem to have been any con-
troversy he died of some disease of the lungs. The conflict
in the evidence is as to whether he had disease of the lungs
or other diseases at the time he made application for the
renewal of his membership. Had the court been asked to
instruct the jury the proofs of death were no evidence on that
question, no doubt it would have done so. But that was not
what the court was asked to do.

The judgment of the Appellate Court must be affirmed.
Judgment affirmed.

JULIUS LANCEY

v.

ROBERT T. BROCK.

Filed at Mt. Vernon September 27, 1884.

The visi

1. POSSESSION-of part, under color of title of whole tract. ble and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, is in law an actual possession of the entire tract, except so far as there may be adverse possession.

2. This rule only applies, however, where the deed purports to convey the whole. The possession does not extend beyond the color of title, and hence where a deed only purports to convey a particular interest in land, it is not evidence of possession beyond that interest.

39-110 ILL.

Brief for the Appellant.

3. Where it is impossible to say what interest, if any, passes by a deed, the grantee or holder can not make it available to extend his possession of a part of the premises over the whole.

4. SAME to show title to land. Where possession alone is relied on as evidence of title to a tract of land, it must be an actual, not a merely constructive, possession. Possession per se is evidence only of the mere fact of present occupancy by right, and the facts and collateral circumstances may be looked to as affording evidence whether or not the possessor claimed a fee. Abandoning possession, ceasing to pay any taxes, and allowing others to enter and occupy, will repel any presumption of a claim of title in fee, and raise a presumption that the claim of the former occupant was less than a fee, and had terminated.

5.

CONVEYANCE-sufficiency of description. A deed described the land as "sixty-seven acres, part of claim 1096, survey 117." Survey 117 contained one hundred and thirty-four and a fraction acres: Held, that the description was fatally defective, it failing to describe definitely any specific tract; held, also, that it could not convey an undivided half of survey 117, for the reason that an undivided half of the north-west half of the undivided half of a tract of land describes nothing tangible, either in quantity or interest.

APPEAL from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

Mr. CHAS. W. THOMAS, and Mr. FRANK B. BOWMAN, for the appellant:

Mere actual possession of land is not sufficient evidence of title. It must be accompanied by claim of title in fee to sustain a recovery.

The deed from Piggott to plaintiff does not show claim of title. It does not purport to convey or even describe the land in controversy.

Survey 117 is six miles long and one arpent wide, and runs north-west from the bluff. It contains one hundred and thirty-four acres. This is divided equally into the northwest half and the south-east half, each containing sixty-seven acres. The deed purports to convey, not survey 117, nor the north-west half thereof, nor any part of the north-west half of the survey, but an interest in the north-west half of a certain part of that survey, to-wit, of that part thereof of which one St. John died seized, etc.

Brief for the Appellee. Opinion of the Court.

Plaintiff's alleged actual possession by Porter in 1855, for one year, stands unconnected with any claim of title in fee. The record also shows that ever since 1860 Piggott was in actual possession of a part of the north-west half of the survey, claiming the whole half under a tax deed. Bowman & Griswold succeeded with continuous, actual and exclusive occupation.

Messrs. G. & G. A. KOERNER, for the appellee:

We do not claim to show a paper title in this case, and do not care about the recitals in Piggott's deed. He did convey the half of the north-west half of survey 117, to the plaintiff. This deed of itself is prima facie evidence of title, or is at least color of title, under which to take and hold possession.

Plaintiff's prior possession of a portion of the premises under color and claim of title, in the absence of any evidence to the contrary, is sufficient proof of title in fee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was ejectment by appellee, against appellant. The land sued for is described in the declaration as being "the undivided one-fourth of that part of survey 117, in the common fields of Cahokia, which is bounded north-west by Tenth street, in the city of East St. Louis, north-east by the tract known as the 'Ames tract,' south-east by that part of said survey now occupied by Charles Gain, and south-west by survey 116 of said common fields." Appellee claimed title in fee simple. Upon the trial appellee read in evidence, to maintain the issue on his part, a deed dated December 13, 1854, whereby Isaac N. Piggott remised, released and forever quitclaimed to him, "one equal and undivided half of the right, title and interest which was of John L. St. John, at the time of his decease, to the north-west half of a certain