delivered the opinion of the Court:
The errors assigned upon this record are embraced in four objections:
1. Striking the plea of former recovery from the files.
2. Admitting in evidence the instrument in'writing without a scroll or seal, purporting to be a deed by Asa Twitchell and wife to Austin Twitchell, dated May 30, 1849.
3. Admitting evidence of what the attorney said to the jury, on the trial of the action of ejectment in favor of defendant in error and against Hiram S. Barger, in regard to what land he claimed a verdict for, and what he withdrew from their consideration.
4. That the verdict is not supported by the evidence.
We will notice these objections in the order we have stated them.
1. As the plea of former recovery is not in the record, it is impossible for us to know anything about it. The orders and judgments of the circuit court are presumed to be correct, and it is only when they are clearly shown by the record to be otherwise, that we are authorized to disturb them. If counsel desired us to pass upon the correctness of this ruling of the circuit court, he should have preserved the plea and the ruling of the court thereon in his bill of exceptions. Hot having done so, we must presume that the court properly struck the plea from the files-.
2. While it is certainly true that it requires a seal or scroll to make a deed valid for the purpose of conveying real estate under our law, it does not follow that title may not be proved otherwise than by deed, or that an instrument, ineffectual of itself as a conveyance, is incompetent for every purpose where the title,to real estate is in controversy. This court held, in Watts v. Parker, 27 Ill. 229, that an actual, open and notorious possession of land in defiance of the whole world, might, of itself, ripen into a perfect title, and that color of title may be shown by a successive number of conveyances, although one of them is without a seal or scroll. And it is perfectly well settled, both upon common law authority and by decisions of this court, that in an action of ejectment, proof of prior possession by the plaintiff, claiming to be the owner in fee, is prima facie evidence of ownership and seizin, and is sufficient to authorize a recovery, unless the defendant shall show a better title. Jackson v. Hazen, 2 Johns. 21; Jackson v. Harden, 4 ib. 202; Robinoe v. Doe, 7 Blackford, 86; Day v. Alverson, 9 Wend. 223; Herbert v. Herbert, Breese (Beecher Ed.) 357; Mason v. Park, 2 Scam. 533; Davis v. Easley, 13 Ill. 98; Brooks v. Bruyn, 18 ib. 539. And a party who enters into the possession of land under a conveyance, though from a person having no title, is presumed to enter according to the description in the deed, and his occupancy of a part, claiming the whole, is construed as a possession of the entire tract. Davis v. Easley, and Brooks v. Bruyn, supra; Prettyman v. Wilkey, 19 Ill. 241.
In the present case, Austin Twitchell was in possession under the instrument executed by Asa Twitchell and wife to him on the 30th day of May, 1849, and which lacked only the formality of a scroll to make it a perfect conveyance, for some twelve or thirteen years, using the premises therein described as his own, and his title meanwhile being disputed by none. This instrument, therefore, while it did not, of itself, convey title, showed how and why he was possessed of the land. It was evidence of what he claimed by his possession, and for this purpose it was properly submitted to the jury.
3. It is undoubtedly true, that where, in an action of ejectment, the title is adjudicated, the judgment is conclusive as to the title established, between the parties and their privies. But that question does not arise on this record. The question here is, whether the title to the property now in controversy was in fact adjudicated or not, in the action of ejectment in favor of defendant in error and against Hiram S. Barger, and whether the evidence introduced in the court below was competent to prove that fact.
The rule is thus accurately and concisely stated by Mr. Justice Barrows in Sturtevant v. Randall, 53 Maine, 149: “What appears by the record is to be proved by the record only, and nothing contradictory thereto can be admitted; but what need not, and in fact does not, appear by the record, if necessary to establish the identity of the subject matter, or of the grounds upon which the judgment proceeded, may be supplied by parol proof, to the extent of showing whether matters that might have been admissible under the pleadings were, or were not, actually presented and considered in the adjudication.” See also, Bigelow on Estoppel, 5, Shepard v. Butterfield, 41 Ill. 76.
If it appears prima facie that a question has been adjudicated, it may be proved by parol testimony that such question was not in fact decided in the former suit. Freeman on Judgments, 243, sec. 274.
It was, therefore, competent to prove, as was done, that, on the trial of the case alluded to, the attorney of defendant in error only asked a verdict for the lands described in the verdict, and that he withdrew from the consideration of the jury all evidence relating to the lands now in controversy.
4. The evidence abundantly sustains the verdict of the jury. The defendant was a mere intruder, without the shadow of a legal right in the premises. Upon the death of Austin Twitchell his estate descended to his infant son, James W., and upon his death it ascended to his maternal grandfather, Abraham Hobbs, who, computing by the rules of the civil law, was related to him in the second degree, while his aunt, Adaline S. Barger, was related to him only in the third degree. 2d Domat’s Civil Law (Cushing’s Ed.) 197, secs. 2832, 2834; and his title was conveyed to defendant in error by deed. This, accompanied by prior possession of the property, was sufficient proof of a fee simple title, at least, until it was disproved or a better title established by other evidence.
The instructions are not liable to the objections urged against them. They correctly apply the law to the facts of the case. But, even if they were objectionable, as we think the verdict of the jury is authorized by the law under the evidence, we would not disturb it.
The judgment of the circuit court is affirmed.