delivered the opinion of the Court.
This was an action of trespass to land, brought by the plaintiff against the defendants, in the Tazewell Circuit Court. To the action the defendants pleaded not guilty and a special plea, that the close, etc., was their soil and freehold. The jury found the issues for the defendants, and a judgment was rendered against the plaintiff for the costs. A motion for a new trial was made and overruled, a bill of exceptions signed, and the case brought here by a writ of error, and various errors assigned, which will be disposed of as we proceed.
The facts of the case appear to be substantially these. One Moushon, in 1832, entered upon the land including' the locus in quo, while it belonged to the United States, and made some improvements in the north-west fractional quarter, and on the north-east fraction also. He built a stable and made a small field on the south part of the north-west, and a house on the south part of the north-east fractional quarter, on the east side of the road dividing the two fractions, and near the south line of the quarter. Moushon sold these improvements to Francis Clement, in 1834, who, thereupon, went into possession. Whilst Moushon occupied, the father of the defendants, John Florent Louis, lived with him, and made an improvement on the hill fraction, in the south half of the north-east quarter, and in the north-west corner, and east of the road ;• he built his house near the north line of the south half, and inclosed a small field of about two acres, on the west side of the road near his house. This field he cultivated one year. It was low ground, and the next year the water washed off most of the fence; Louis then removed the remainder, and used the rails in making a fence around a field on the east side of the road. It appears this road ran north and south on the line dividing the north-west from the north-east fractional quarter until near the north-west corner of the south half of this quarter, when it inclined to the east, and left about two acres of this tract west of the road.
The land was public land, and on the 26th of July, 1836, Clement and John Florent Louis entered into a written agreement, reciting that they had obtained from the Land Office a certificate of purchase for the north-east fractional quarter; and for the purpose of making a division of it between them, Clement agreed to convey to Louis the north half of the quarter, and Louis agreed to convey to Clement the south half, M the intention being that each party shall retain his improvements,” and to effect that object, it was agreed that the land should be surveyed, and if it was found by the survey that Louis1 improvement was on the south half of the quarter, then it should be conveyed to him by Clement; and in return therefor, Louis should convey to Clement an equal number of acres out of the north half; and if any part of the improved land of Clement should be found to be in the north half of the quarter, then Louis was to convey it to him, taking himself an equal quantity from the south half. They also agreed to convey to each the improvement which each might have on the small fraction of fourteen acres attached to the land described in the agreement.
As was frequently the case about the time of this agreement, parties who had proved up their pre-emption, so disposed of their claims as to enable another party to make payment and procure the certificate of purchase from the United States, and which, we infer, was the course pursued in this case, for one John W. Casey entered and purchased the whole of the north fractional half of section twelve containing one hundred and sixty-five and eighty one hundredths acres, and, it is admitted by the parties to this suit, became the undisputed owner thereof. Casey, on the 20th of May, 1837, by deed of that date, duly recorded on the 2nd of August, 1837, sold and conveyed the same to Clement.
Clement continued to occupy the south part of the northeast fractional quarter, and of the field on the north-west fractional quarter, cultivating it, taking wood from that part of it not inclosed, and exercising such acts of ownership over it as is usual and customary by owners or claimants of unoccupied land, though his right was denied by Louis. After his death, in July, 1848, his children and heirs at law, con-tinned such occupancy, until the fifth of February, 1858, when they sold -and conveyed, by deed of that date, to the plaintiff the south half of the north-east quarter, containing seventy-five and fifty one hundredths acres, and the northwest fractional quarter, containing fourteen acres more or less, under which deed the plaintiff went into possession, and was in possession at the time of suit brought. John FI oren t Louis died in March, 1848, leaving these defendants, his heirs at law, who occupy as their ancestor did.
It appears that Louis, the ancestor of these defendants, had, in his lifetime and the defendants since his death, disputed the right of Clement to this fraction, and while it is not proved that they themselves ever exercised any unequivocal acts of ownership over it, they have prevented the plaintiff from extending his fields over the north part of the fraction, and from inclosing it for any purpose. It is in proof, no portion of the fraction north of plaintiff’s field has ever been inclosed.
With a view to an exclusive appropriation of the north part of this small fraction, the plaintiff, before the commencement of this suit, commenced to build a paling fence on the east line of it with poles cut from this land, when the defendants interposed and tore it down. The design was, to inclose all the vacant portion of the fraction, which was prevented by the violent acts of the defendants. One year before, including the time laid in the declaration, it appears, that one of the defendants tore down the fence on the north side of the field in two different places; at one place near the river, where the plaintiff was repairing the damages occasioned by high water, in doing which, he placed his fence somewhat farther north than it had been, which Margaretta, one of the defendants, tore down. The other place was at the north-east corner of this field by the road, when the same defendant tore down several pannels of fence, — of the old fence which had been made by Moushon and had stood there at the time of the purchase by Clement and ever since. This field, inclosed in part by this fence, it appears, has been in the actual and undisturbed possession of the plaintiff and those under whom be claims, for about twenty-six years, and at the point where the trespass was committed, the fence stood where it was placed before the sale to Clement in eighteen hundred and thirty-four.
These are the main facts of the plaintiff’s case.
The defendants, to maintain the issues on their part, introduced as evidence, against the objection of the plaintiff, certain proceedings in chancery, originating in 1839, wherein John Florent Louis was complainant, and Francis Clement was defendant, and which, at the September term, 1839, resulted in an interlocutory decree.
The bill on which the decree was based, and which was the foundation of subsequent proceedings, sets out this agreement of July 26, 1836, and charges that it was agreed between the complainant and defendant, that there was a fraction of fourteen acres lying in front of complainant’s land, that defendant agreed with complainant, in case whatever improvements he, complainant, had on that fraction, the defendant would convey to him, and alleges that as to this fractional tract of fourteen acres, the defendant, Clement, “is the sole owner thereof.”
The object and scope of the bill was to obtain a specific performance of the agreement of July 26, 1836, as to the respective rights and claims of the parties to the north-east fractional quarter, and that this tract should be so divided between them, as that each party should have an equal quantity of land to include their respective improvements; the south half to be set- off to the defendants, leaving thereout such portion of it as the complainant might have under improvement, and the north half to be set off to complainant, the defendants to be compensated out of it, for as much of the south half as complainant’s improvements should cover.
There is an »allegation in the bill, that the defendants designed to defraud complainant out of his improvements. The prayer of the bill is not quite intelligible, but we understand it to be, that Clement should be decreed to convey to complainant, so much of the south half of the north-east quarter as embraced complainant’s improvements, in consider-átion that complainant would first convey to the defendants an equal quantity out of the north half, and also prays that his improvement on the fraction of fourteen acres might be set off to complainant.
The bill was tafeen as confessed. We deem it unnecessary to notice tbe decree which followed, for the reason, it was, at the next April term, 1840, on motion of the defendant, vacated.
At the April term, 1841, another order and decree was entered, granting the prayer of the bill as to the north-east fractional quarter, and the respective improvements of the parties thereon, and it was further ordered, that the surveyors survey and ascertain how much land complainant had under improvement in 1836, and survey the second described fourteen acres, measure the land, and describe the same by metes and bounds. And the court appointed Lewis Prettyman surveyor, who was required to report his proceedings in the premises to the next term of the court.
At the next term, it being the September term, 1841, the complainant presented the report and survey of Mr. Pretty-man, whereupon, the record recites, “it appearing to the court by the report of the surveyor, that the improvements Louis had on the south half of the north-east quarter, consists of a piece of land containing six and ten one hundredths acres, described by metes and bounds, that the surveyor has measured and set off in lieu of this land, the following land : commencing at the north-west corner of the above improvement of six and ten one hundredths acres ; thence north, one and seventy-eight one hundredths chains, to a stone; thence east, thirty-four chains, to a stone; thence south, one and seventy-eight one hundredths chains, to a post; thence west, thirty-four chains, to the place of beginning; containing six and five one hundredths acres.” It also appearing by said surveyor’s report, that the metes and bounds of the small fraction of land described in the interlocutory decree mentioned, are as follows : (here the metes and bounds are specified,) “ containing twenty-one acres.” It further appearing to the court that the complainant had, in 1836, an improvement on the north part of the above fraction, as follows: (describing it by metes and bounds,) “containing two and fifty-two one hundredths acres.”
The court being fully advised in the premises, orders and decrees, that the plaintiff convey to the defendants by deed, the following described land, to wit: the north half of the north-east fractional quarter of Section number 12, Town 25 north, Range 5 west; also, that the complainant shall convey to the defendant a private cart way across the north end of the land described as complainant’s improvement, upon the complainant executing the deed as aforesaid; and' the court doth decree, that the defendant convey to the complainant the following land, to wit: commencing at a post at the northwest corner black walnut 12 inches, bearing south eighty-one degrees, west twenty-eight links; thence south, nine and six one hundredths chains, to a stone; thence east, six and seventy-five one hundredths chains, to a stone; thence north, nine and six one hundredths chains, to a stone; thence west, six and seventy-five one hundredths chains, to the place of beginning; containing six acres and ten hundredths of an acre — also, the north half of the north-east fractional quarter of section number twelve, the said deed to be executed and delivered by the next term of this court, to which term the •cause is continued.
At the April term, 1842, the next term in course, a further hearing was had, “ and the report of Pretty man, a commissioner and surveyor, appointed by this court to survey and divide the fractional quarter of Section twelve, Township twenty-five north, Range five west of the third principal meridian, in Tazewell county, fairly and impartially between the parties aforesaid, having reference to a certain contract entered into between said parties, having been heard and approved: It is therefore considered by the court, (said parties to said contract having refused to convey to each other their separate portion, according to said contract contemplated,) that Peter Menard, Jr., be appointed a commissioner to execute and deliver to each of the said parties aforesaid, a good and sufficient deed in the partition of said land, having reference to said partition, division or survey of said land, made by said Prettyman, and to this court submitted, and now on files of this court, and that be make report of the same- at the next term of this court.”
At the September term following, on motion, it was ordered that the cause be stricken from the docket.
This is the state of the record up to the September term, 1842; and the question here arises, what was the condition of the cause when it was stricken from the docket — was it any longer in court, for the action of the court upon it ? This question we discussed at some length in the- case of Tibbs et al. v. Allen, 29 Ill. 535, and the conclusion there reached was* that the cause was not so out of court and beyond its jurisdiction, by striking it from the docket, but that it could be again brought before the court in some mode, and the mode suggested in that case,, was, by motion and notice, or by petition, or supplemental bill, setting out the facts- as they existed up to the time of the motion, or petition or bill.
By the death of these parties in 1848, the suit abated, making, in this respect, the case to differ from Tibbs’ case. It is an anomaly in judicial proceedings, to carry on a suit in the name of the deceased parties to it. A bill, in the nature of a bill of revivor,, by the heirs at law of one party against the heirs at law of the other party, is the course indicated by the practice in chancery in such cases. 3 Daniel’s Ch. Pr. 1718.
The propriety of this is obvious, for although a deceased proprietor of lands may leave children, it does not follow they become entitled to his estate. He may have aliened it to other parties —he may have devised it in certain and unequal proportions to his children, or wholly, to strangers; hence the necessity of a bill to revive the proceedings wherein the complainants should show their estate in the land, and the defendants’ claim, and by what right, so that they may have an opportunity to disclaim, or otherwise defend, according to the nature of their case.
By the death of these parties, new rights arose, of the nature of which, the court should be judicially informed by bill, and the bill should progress to a hearing and decree as in other cases. Without this, or something equivalent to it, the court had no jurisdiction of the case, and the proceedings commencing in 1852, near ten years after the cause was stricken from the docket, and four years after the death of both parties, were not only irregular, but void. There was neither a cause in court, nor living parties to the cause, in which the Circuit Court undertook to act. The whole subject was coram non judice, and the report of the commissioner, and the deeds executed by him to the heirs at law of the deceased parties, should not have been received by the court. The action of the court, in these respects, was void and of no effect, and. they should not have been allowed to go in evidence.
But waiving this, and considering the proceedings in 1852, and the report and deeds regular, it will be seen on examination, the deeds do not conform to the decree, and are, for that reason, void and of no effect.
The decree, which was passed on the coming in of the surveyor’s report, gives to the defendant the north half of the north-east fractional quarter, and also, in the last portion of it, decrees it to the complainant, and does not decree the south half to the defendant. It is therefore void for uncertainty. The deed gives the north half to complainant’s heirs, and the south half to defendant’s heirs. By the decree, the strip taken out of the north half and awarded to the defendant is described as bounded by lines, the initial point of which is at the north-west corner of complainant’s improvements, on the south half, whereas by the deed, following the courses and distances given in it, notone of the lines would touch the north-west corner, but would only reach the north-east corner of the improvement. The decree does not find that the complainant, Louis, was entitled to any part or portion of the north-west fractional quarter of twelve, but only directs the surveyor to measure it, and ascertain what improvements the complainant had on it in 1836. This the surveyor did, and reported the area as twenty-one acres, and that complainant had on it in 1836 an improvement of two and fifty-two one hundredths acres. The deed conveys to him not only this two and fifty-two one hundredths acres, but five and fifty-two one hundredths acres in addition.
It is unnecessary to cite authorities on the point, that a naked power must be strictly pursued, and that a conveyance of land not authorized by the power, is a void conveyance. The commissioner did not, by his deeds, carry out the decree, but materially departed therefrom, and his acts not being conformable to the decree, are void. These deeds were not approved by the court, so that no aid can be derived from that quarter. They stand upon their naked merits, and not being authorized by the decree, they must be considered as invalid, and inoperative to convey title.
A. commissioner, like any other agent or attorney, must act according to the power conferred, and convey the land he is authorized to convey, and none other. The doctrine on this point is too well settled to require argument or authority.
Without adverting to, or discussing the objections made by the plaintiff to the introduction of these deeds, it is sufficient to say, the commissioner had no power by the decree to execute them, and they conveyed no title to the premises on which the trespass was committed.
The defendant also called one William Hammond as a witness, who stated that the defendants had occupied the land in dispute since 1848, that John Louis had a wood yard on a part of it, north of the field on the river, and he and the family have washed at the river. On his cross-examination he said, Louis and Clement had lawsuits about this land, and no part of the portion in dispute was under cultivation.
This was the defendants’ case, whereupon the plaintiff, against the objection of the' defendants, introduced in evidence certain other proceedings in chancery, commenced in 1850, by the heirs at law of John Elorent Louis, these defendants, and the heirs at law of Clement and Peter Menard the commissioner, to correct certain errors in the original decree, and to revive and continue the original abated suit, praying to carry into effect the original decree, which we deem unnecessary to notice more particularly, inasmuch as the bill, after being amended, and continued from term to term until 1853, was dismissed at tbe costs of the complainant. Whether this dismissal did, or did not, dispose of the original decree, is a question not essential to this case to be decided, as we are of opinion the plaintiff’s case was fully made out by the proof he had adduced.
The plaintiff proved the trespasses to have been committed on land to which, by Oasey’s deed, and by the admissions of the defendants’ ancestor, he had the title. Having the title, he had a perfect right to enclose the land, and a forcible disturbance of him in the exercise of that right, was a trespass. Some stress was laid upon a prior occupancy of a part of this north-west portion by John Fiorent Louis, and on an improvement made by him thereon, and which Clement agreed to convey to him. Saying nothing about this agreement, as being void for want of a consideration, it is quite evident he had no improvement on it in 1836, or at any other time. The proof is, he enclosed, while living with Moushon, about two acres of land west of the road, and it is proved, that a small portion of the south half of the north-east quarter is west of the road by reason of the road trending to the east just as it reaches the south-west corner of that tract, so that must have been the improvement, and no other. But if it was on the north-west fraction, he voluntarily abandoned it, by removing the rails, and it was competent for the plaintiff, in order to show an abandonment, to prove the declarations of Louis, when he was in the act of removing the fence. It was a part of the res gestos — of the thing done — giving it character, showing the animus under which it was done. Riggs v. Cook, 4 Gilm. 336. The court erred in not permitting the plaintiff to have these declarations go to the j ury, Proctor v. Town of Lewiston, 25 Ill. 153. It may be, he said he had no claim or title to the land, and he would therefore remove his fence. The weight of evidence is, however, that this improvement was not on the north-west fraction but upon the northeast.
The plat used in evidence in this cause, shows a strip of land west of the road, part of the north-east quarter, which we infer was the tract which Louis improved and from which he removed the fence. All the witnesses concur in saying, that the part of the fraction north of plaintiff’s field never was at any time enclosed.
The trespasses were committed on land to which the plaintiff shows a paper title and actual possession and cultivation of part, claiming the whole tract. This is sufficient evidence of title to the unenclosed part, to sustain the action. Davis v. Early et al., 13 Ill. 192, and cases there cited.
The commissioner’s deed to defendants being void, they are left without a leg to stand upon. No possession of any portion of this tract, by defendants or their ancestor, has been shown. The occasional use of an undescribed part of it, to place wood upon, and resorting to the bank for washing, picking up sticks of wood upon it, crossing over it to reach the river, are no possessory acts out of which a title can spring, sufficient to destroy the title shown by the plaintiff.
It is also in proof, that the plaintiffs, or those under whom they claim, have paid taxes on this fraction, for a series of years. It is described as containing but fourteen and one-fourth acres, but upon survey, it is found to contain twenty-one acres. The defendants show no payment of taxes on any part of the fraction.
"We deem it unnecessary to comment upon the instructions given and refused, as the views we have expressed dispose of them substantially, so that on another trial, the Circuit Court will give such instructions, should it be moved to do so, in harmony with this opinion.
The judgment of the Circuit Court is reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with this opinion.
Judgment reversed.