being a part of school section 16, township No. 39, north, range 14, east of third principal meridian, granted by the United States to the State of Illinois for the use of the inhabitants of said township for the use of schools. The next deed in plaintiff's chain of title was a deed from said Newberry to Elijah K. Hubbard conveying said block 60 and other property. It was shown, that the original of this deed was lost or destroyed, and that it was not within the power of the plaintiff to produce the same, and that the record of the same in Cook county was destroyed by the great fire of October 8 and 9, 1871. Thereupon plaintiff introduced in evidence a sworn abstract and certain memoranda or minutes taken from the books of original entry of Jones & Sellers, who carried on the business of making abstracts of title in Chicago prior to said fire, made by them in the ordinary course of their business before said fire. These minutes showed the following in regard to said last mentioned deed: "Walter L. Newberry Elijah K. Hubbard. H 7 W. D. and 115, 109, 85 being parts of Sec. 16, T. 39, 14 E." This extract from the minutes, as explained by the testimony, means that Walter L. Newberry executed to Elijah K. Hubbard a warranty deed, dated May 22, 1835, and recorded on July 2, 1835, on page 7 of volume H of the records of Cook county, and conveying block 60 and other blocks in said section 16. Elijah K. Hubbard died after the delivery of the deed from Newberry to himself, and before executing any conveyance of the property therein conveyed to him. The next conveyance in the plaintiff's chain of title, as shown by the minutes aforesaid, is a deed executed by the executors of the estate of Elijah K. Hubbard, deceased, to Russell H. Nevins, conveying said block 60 and other blocks, and recorded on September 21, 1841. In connection with this deed by the executors, plaintiff introduced in evidence extracts from said minutes, showing certain proceedings in the probate court of Cook county in the matter of the estate of said Hubbard, whose will was admitted to probate by that court on June 3, 1839, and the following portions of said will and of the inventory of said estate: "Whereas, there are large amounts of real estate held by me in my name, but in trust for the use and behoof of others, partly so expressed, and partly in my own name solely, I having an interest only in the results or proceeds and not in the land itself, all of which, to-wit, the degree of interest, the designations of property and all circumstances relating thereto are fully set down and appear in my several books, papers and correspondences. "Now, therefore, I authorize and instruct my said trustees to make such settlement in relation to the same and execute such conveyances as may from time to time be necessary, so that the interest of my estate and the interests of others connected with the property aforesaid, shall not, in case of my death, be jeopardized." Inventory filed August 19, 1840: "The following lands are held in trust by E. K. Hubbard for Nevins, Townsend & Co., C. F. Moulton, Elijah Hubbard and Henry L. DeKovan, viz.: Blocks 105, 108, 60, 104, 6, 115, 109, 85, in school section addition to Chicago." It is not disputed, that whatever title passed to Nevins by reason of the deed to him from the executors or trustees of Hubbard's estate, is now owned by appellee here, the plaintiff below, so far as the strip now in controversy is concerned. The defendant below, appellant here, introduced no evidence for the purpose of showing title in himself; but introduced a portion of an abstract of title made before the fire, and a sworn copy of a letter-press copy of an abstract of title made before the fire, both of which were made by other abstract makers than those who made the abstract or minutes introduced by plaintiff. The abstract and copy thus introduced by the defendant showed the following entries, to-wit: "Walter L. Newberry to Elijah K. Hubbard, in trust, &c. Deed dated May 22, 1835. Conveys block 109 aforesaid, with other property, in trust for Nevins Townsend & Co. and C. T. Moulton, H. L. D. Kovan and Elijah Hubbard. No objects of trust stated. Certif. of ackgt. by A. Clybourn, J. P., don't state for what State or Co. he is a Justice. Recorded July 2, 1835, Book H, pg. 17. Walter L. Newberry to Elijah K. Hubbard, in trust for Nevens, Townsend & Co. and C. F. Moulton, of the city of New York, and H. L. D. Kovan and Elijah Hubbard, of Middletown, Conn. Warranty deed dated May 23, 1835, and recorded July 2, 1835, in Book H, page 17 (New Vol. page 7). Considn. $1000.00. Conveys with other property, block 60 aforesaid. Certif. of ackng't as follows: "This day came W. L. Newberry, who is well known to me to be the person who executed the foregoing, and acknowledges the same to be his free and voluntary act and deed for the purposes therein contained. "Signed and sealed this 22d day of May, A. D. eighteen hundred and thirty five. A. CLYBOURNE, J. P. [SEAL.]" Among the instructions given for the plaintiff was the following: "If the jury believe, from the evidence, that on the 22d of May, 1835, Walter L. Newberry, by warranty deed unaffected by any trust qualifications, conveyed block sixty (60) of the said school section to Elijah K. Hubbard, then by such deed the title to the premises in question passed to Elijah K. Hubbard; and if you further believe that the plaintiff has established his chain of title from the government down to date to the premises in controversy, and that the defendant is in possession of a portion of the property in question and withholds the same from the plaintiff, then you will find the defendant guilty.' Among the instructions given for the defendant was the following: "If the jury believe, from the evidence, that the warranty deed dated May 22, 1835, in which Walter L. Newberry was grantor and Elijah K. Hubbard was grantee, conveyed block 60 in the school section addition to Chicago (within which block lies the land which is in controversy in this suit) to said Hubbard in trust for Nevins, Townsend & Co., and C. T. Moulton, H. L. DeKovan and Elijah Hubbard, (without expressly stating the objects of the trust upon and for which said block 60 was so conveyed and without imposing active duties upon the trustee,) then the court instructs the jury that by force of law, immediately upon the execution and delivery of said warranty deed, all the legal and equitable title to and interest in the property by said deed conveyed passed through and out of the said Elijah K. Hubbard, and became vested in and thereupon belonged to the said Nevins, Townsend & Co. and C. T. Moulton, H. L. De Kovan and Elijah Hubbard, in which event the plaintiff in this case is entitled to recover a verdict at your hands for such interest only in the land involved in this suit as is shown by the evidence to have come (by means of some one or more deeds, or some one or more wills, or by inheritance,) to him, the plaintiff, as successor in interest (in the said land involved in this suit) to said Nevins, Townsend & Co., C. T. Moulton, H. L. DeKovan and Elijah Hubbard, or some one or more of them." The jury rendered a verdict finding the defendants guilty of unlawfully withholding from the plaintiff the premises in question, and that the plaintiff was entitled to said premises in fee simple, and that the present building situated upon the lot adjoining south of said lot 38 was situated upon and occupied 15 inches of the south side of said lot 38. Motion for new trial was overruled, and judgment rendered upon the verdict. The present appeal is prosecuted from such judgment. QUIGG & BENTLEY, for appellant. ARNOLD TRIPP, for appellee. Mr. CHIEF JUSTICE MAGRUDER delivered the opinion of the court: The position taken by the appellant in this case is, that block 60, of which the property here in controversy is a part, was conveyed by Walter L. Newberry to Elijah K. Hubbard in trust for Nevins, Townsend & Co., and C. T. Moulton, H. L. DeKovan and Elijah Hubbard; that the deed did not state the objects of the trust; that the trust was merely passive; that the use was executed by the Statute of Uses; that the legal title passed through Elijah K. Hubbard, and vested immediately in the parties for whose use it was conveyed; and that, as plaintiff deraigned his title from Elijah K. Hubbard, and not from the cestuis que usent, he is not entitled to recover. The original deed from Newberry to E. K. Hubbard had been lost or destroyed, and there was no evidence of its contents, except such imperfect memoranda as had been made before its loss or destruction from the original instrument or the record thereof. Such evidence of this kind as the plaintiff produced showed, that the deed as executed by Newberry to E. K. Hubbard was a simple warranty deed, and not a deed containing any provision as to the property being held in trust. Such evidence as the defendant introduced tended to show, that the property was conveyed in trust for certain persons, and that it was not an absolute conveyance without trust qualifications. As both parties, by their instructions whether those instructions were right or wrong, left it to the jury to determine whether the original deed was one without a trust provision as plaintiff claimed, or whether it was a deed with a trust provision as defendant claimed, and as the jury found for the plaintiff upon this issue, there |