Record and brief — Henry Carpenter, Plaintiff in Error, vs. James Dexter, Executor of John B. James

Supreme Court brief1868

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SUPREME COURT OF THE UNITED STATES.

No. 211.

DECEMBERSTERM, 1868.

HENRY CARPENTER, PLAINTIFF IN ERROR,

VS.

JAMES DEXTER, EXECUTOR OF JOHN B. JAMES.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF [LLINOIS.

Stipulation to amend record.

Supreme Court of the United States,

Writ of error to the Circuit Court of the United States for the northern

district of Illinors.

JAMES DEXTER, executor of the last will and }

testament of John B. James,

ads. f

HENRY CARPENTER. J

It is stipulated between the parties that the record in this case be

amended in this, that the blank certificate (not signed) on the back of

the deeds purporting to be made by William L. Davenport to Elipha-

let Hawley, and from said Hawley to Thaddeus Munson, were read

in Providence, on the trial of said case, without any objection thereto

as evidence of said recording; no objection was made that said blank

certificate was not signed by the clerk or recorder, and no exception

was taken to the statement of the court that said deeds were re-

corded May 17th, 1819. The plaintiif claimed that he not only

proved said deeds by said certilicates of acknowledgments thereto

attached, but that he proved said first deed by proof at common law

by deposition thereto attached; the deeds were read in evidence, the

defendants in the court before claiming that they were not proved;.

2 CARPENTER VS. DEXTER.

the court overruled the objection, def’t excepted, and said deeds

were read in evidence.

This stipulation is to be taken as part of the record and as part of

the bill of exceptions in this cause.

Feb’y 17, 1868.

A. GARRISON,

At? y for PU ff i Error.

W. C. GOUDY,

Alt’ y for Def’t in Error.

Filed 22 Feb., 1808.

Endorsed: No. 211. Henry Carpenter vs. James Dexter, execu-

tor of John B. James, deceased. Stipulation to amend the record.

ia Ne age se

‘

EME COURT OF THE UNITED STATI

“set news

{

etc., of

Plaintiff in Error.

Defendant in Error.

December Teau, A. D. 1867.

By A. GARRISON.

ii Bataan, Steam Printers, 194 Clark ot.

BRIEF FOR PLAINTIFF IN ERROR

B. James, deceased,

Dexter, Executor,

Z CARPENTER VS. DEXTER.

the court overruled the objection, def’t excepted, and said deeds

were read in evidence.

This stipulation is to be taken as part of the record and as part of

the bill of exceptions in this cause.

Feb’y 17, 1868.

7 pen SE GTN + iad inn the Fa

ts 3 Fain oe oy 28 gh ;

ge eae Sn ee

A. GARRISON,

Att’ y for PU in Error.

W. C. GOUDY,

Alt’ y for Def't in Error.

Filed 22 Feb., 1868.

Endorsed: No. 211. Henry Carpenter vs. James Dexter, execu-

tor of John B. James, deceased. Stipulation to amend the record.

SUPREME COURT OF THE UNITED STATES.

DecemBer Term, A. D. 1867,

Jlenry Carpenter,

Plaintiff in Error.

US, Error tothe Circuit Conrt

’ . Jor the Norther Dist.

dAMES Dexter, Executor, ete., of | of linois

Joun B. James, deceased,

Defendant in Error.

BRIEF FOR PLAINTIEF IN ERROR.

STATEMENT OF CASE.

In July, 186¢0, Henry Carpenter, a farmer, then nearly

sixty years of age, purchased the land in controversy here,

hitherto vacant and wnoceupied, which adjoined his home-

stead, for $1,200, its full and fair value. Prior to said

purchase, as is usual, he caused the records of his county

(Bureau county, where the land lies) to be searched by an

attorney, and before paying his money received a legal

opinion as the result of such search, that the title was

good. Incapable of judging of titles himself, he had to

rely on the opinion of his counsel. That being satisfac-

tory, Carpenter obtained a warranty deed for the land,

and immediately took possession, fenced and cultivated it.

He paid the taxes for 1860, and all subsequent years, save

one, and offered to pay for that year. His “ nprovements

were worth over $2,000. Carpenter continued to cultivate

this land, in the confident belief that his title was perfect,

and without notice, actual or constructive, that any other

person had claim thereto. His deed came from the heirs

of Ephraim De Witt, by their attorney duly authorized,

properly executed and acknowledged ; and Ephraim De

Witt took directly trom the patentee, Wm. T. Davenport,

Ang. 6, 1818, by a deed equally well authenticated ; and

this title standing alone is impregnable.

Carpenter was therefore not only a dona fide purchaser

for value, but he purchased the only title from the patentee

then on reeord, and the oldest title in date in existence 3

and the seven years statute of limitations of Illinois had

far advanced when this suit was commenced by James

Dexter, claiming a title from the patentee, subsequently to

his conveyance to De Witt; which not having been heard

of in the country where the land lies, and no claim to the

land having been made under it for nearly fifty years, sub-

jects it to the gravest suspicions, and should not be re-

ceived or tolerated, unless by imperious necessity, after

the severest test and closest scrutiny.

This title of the plaintiff in error begins with a deed of

bargain and sale with full warranty, from the patentee to

Ephraim De Witt, the oldest in date and first of record,

properly acknowledged and bearing every evidence of

genuineness, and there can be no doubt but the title passed

to Ephraim De Witt by that deed, and from his heirs to

the plaintiff in error by the deed of July 22, 1861; and

these deeds went to the jury without objection, as indeed

there could be none.

The deed to De Witt bears date Aug. 6, 1818, and was

recorded in Bureau county Dec. 19, 1861, while the pre-

tended deed to Hawley is dated Sept. 1, 1818, and the deed

from Hawley to Munson Dee. 12, 1818, neither of which

have ever been recorded or in any way brought to the no-

tice of the plaintiff in error. It is true that on the margin

of the two last deeds is a certificate (without any proper

venue), evidently not in the recorder’s hand writing, and

without any signature thereto; but this is no proof, and

there is no other proof whatever that those deeds were

ever recorded.

We claim that in this case the court is imperatively

called upon to recognize the well established rule relating

to ejectments, to wit, that the plaintiff in error being in

possession under these circumstances, the defendant in

error was bound to prove a perfect and complete title in

himself before he could call upon the party in possession

for the evidence of his title.

Marshall v. Barr, 35 Il., 106.

Joy v. Lerdell, 25 Il., 537.

Ricard v. Williams, 7 Wheat., 59.

Pilkin v. Yow, 13 Ul., 251.

Covert v. Irwin, 3 Serge. & [., 64.

Colston v. McKay 1 Marsh (Ky.), 251.

Jackson v. Paine, 2 Cowen, 502.

Hamilton v. Doolittle, 37 Tl., 473.—

PLAINTIFF'S TITLE.

1. The deed of Davenport to Hawley, Sept. 1, 1818,

is not proved; First, because it was not acknowledged.

The pretended acknowledgement before H. Wendall, Jr.,:

a justice of the peace is no proot of execution.

The laws of New York at that time, did not allow

justices of the peace to take acknowledgement of deeds, .

notwithstanding J. K. Winne has given a printed certificate

to that effect evidently though without consideration.

I Rev. Statutes, N. Y., (1828) p. 756, § 4.

McCormick, v. Evans, 33 Ill. 327.

Lyon v. Kain, 86 Ill. 362.

The authority to a justice of the peace in New York

was first given in 1840 to take acknowledgements. Chap.

38, sec. 1, Act of 1840.

Second, The laws of Illinois did not then allow justices

of the peace out of the State to take acknowledgments of

deeds to be recorded in this State. This deed was made

prior to Act of Illinois of 1819 relating to the execution

of deeds out of this State, and is governed by the Terri-

torial Act of T807.

Purple’s Real Estate Statutes 459, 462, (Act

Sept. 17; 1807, $ 18).

Adams v. Bishop, 19 Ill. 395.

Buckmaster v. Soh, 15 Ill. 328.

Semple v. Miles, 2 Scam. 315.

It was not acknowledged in conformity to the laws of

either State. It was a nullity, utterly void as proof.

Third, The acknowledgement in form is defective

because it does not state that the grantor was personally

known to the officer, which was required by the laws of

New York and Illinois then in force, and is an indispensi-

ble condition.

1 Revised Statutes New York (1828) 758, § 9

and 12.

Or 1 Rev. Laws, 369, § 1 & 2.

Montay v. Linn, 19 Ill. 399.

Tuly v. Davis, 30 Ill. 103.

Wiley v. Lean, 1 Gil. 303.

Fourth, And this last defect is not aided by the affida-

vit of Wooster (made the next day after the date of the

deed which is a very suspicious circumstance) because,

oe '

that has no assignable locality; the venue being simply

“ State of New York, ss.” which is fatally defective.

2 Rev. Statutes N. Y. (1828) p. 282 § 12.

Vance v. Schuyler, 1 Gil. 160.

Montag v. Linn, 19 Ill. 899.

Nor does the subscribing witness state that he became

such at the request of the grantor, or signed the same at

the time of the execution, as required in that State.

2 Seates’ Comp. (Laws Ill.) 964.

Tlallenback v. Flemming, 6 Will 306.

1 Greenleaf Ev. sec. 569.

Nor does the officer certify that said William D. Wooster

was known to him to be a subscribing witness, nor was

there any proof of that fact.

2 Scates’ Comp. (Laws [Il.) 964.

Montag v. Linn, 19 Ill. 399, 401.

Job v. Tebbetts, 4 Gil. 143.

Tully v. Davis, 30 Ill. 108.

This proof by the subscribing witness is not in conform-

ity to the laws of New York at that time nor to the laws

of Illinois.

1 Rev. Statutes (N. Y.) 758 § 12.

Purple’s Real Estate Statutes (Ill.) 457 § 2.

The affidavit of W. T. Davenport endorsed thereon is a

nullity, not having been sworn to and having no jurat

attached.

Fifth, This deed was not proved at common law. The

deposition of Van [anslaer attached thereto, simply testi-

fies to the genuineness of the signature of one of the sub-

scribing witnesses. There is no evidence of the death or

absence of the other subscribing witness (Wooster) nor

any proof whatever of the signature or identity of the

grantor. These were indispensable.

Kelsey v. Hlammond, 18 Conn. R. 31.

Wiley v. Bean, 1 Gil. 302.

McConnell v. Reed, 2 Seam. 374.

flallenback v Fleming, 6 Mill, 306.

Duondy v. Chambers, 23 Til. 869.

Cunliff v. Sefton, 2 East. 182.

Nor is this deed proved by the deposition of Van Rans-

laer under the law of Illinois, 1845 (Scates’ Comp. laws

Ill. p. 964 $ 41), because that act requires the hand writing

of the grantor and at least one of the subscribing witnes-

ses to be proved by “two or more disinterested persons

swearing to each signature,” and we contend that this act

which is still in force provides the only mode by which

deeds detectively acknowledged can be proved on the trial,

and is really, we think, the controlling rule of evidence

where the deeds are attempted to be proved by witness on

the trial.

This deed cannot be treated as an ancient deed. No

possession or claim to the land was made thereunder until

the commencement of this suit.

”

An ancient deed must be accompanied by possession or

what is equivalent.

1 Greenleaf Ev., § 144, and note 1.

The laws of Illinois since the date of the deed, retro-

spective as they may be claimed to be, do not aid this

deed nor make the certificates thereon of any avail be-

cause they relate only to recorded decds. And this deed

has never been recorded. It is only to recorded deeds

that those acts were intended to apply or effect.

The signature of the recorder is absolutely essential to

prove the recording of a deed. A certificate without any

signature is fatally defective and no proof whatever.

The defective acknowledgement of this deed was at-

OO PONTE

OE TEE

last ett UO ad ance ep

tempted to be obviated by the deposition of Van Rans-

laer, but the law of this State requires the oath of two

witnesses swearing to each signature.

2 Scates’ Comp. 964, sec. 41.

And we make this point to all the certificates of like

character, that the certificate of the clerk is not conclu-

sive that the deed is or was acknowledged in conformity

to the laws of the State when it was so made, but the

law can be shown of such State to contradict such certifi-

cate and show the laws on that subject.

Lyon v. Kain, 36 Ml., 363.

Adams v. Bishop, 19 Ill., 398.

2. The deed from Hawley to Munson dated Dec. 12,

1818, is not proved, because, First, to the certificate

there is no assignable locality, ‘State of New York, ss.,”

is not suflicient.

2 Rev. Statutes N. Y. (1828) p. 282, § 38

§ 40.

Montag v. Linn, 19 Ill. 899.

Vance v. Schuyler, 1 Gil. 160.

Commissioners of Deeds in New York had no Jurisdic-

tion to take acknowledgements beyond the county in

which they resided.

Adams v. Lishop, 19 Il. 395.

2 Rev. Statutes New York (1828) p. 282.

1 Rev. Statutes N. Y. (1818) p. 756 § 4.

See also Dep. of J. S. Van Ranslaer.

Nor does this certificate identify the person described in

the deed, as the same person who executed the same, must

be certified or proved.

Lyon v. Kain, 36 Ill., 369.

Second. The laws of Illinois at that time did not au-

thorize commissioners to take acknowledgements of deeds

to be recorded in this State.

Purple’s Real Estate Statutes, 462.

Nor is this deed proved at common law by Van

Ranslaer’s deposition who was not a subscribing witness

thereto and who does not swear to the signature of the

grantor or the signature of the subscribing witnesses.

The remarks made above concerning the deed from

Davenport to Hawley not being recorded, apply equally to

this deed of Hawley to Munson and we further observe,

that the two deeds being on the same paper, would require

a certificate to each deed of the time and place of

recording.

3. The deed from Thadeus Munson to William James,

of February 13, 1819, is not proved, because—

first. The certificate of acknowledgement has no as-

signable locality. ‘State of New York—ss.,” is not suffi-

cient. Estes Howe could not act out of the County of Al-

bany.

1 Rev. Statutes N. Y. 756, Sec. 4, (ed 1828.)

2 Rev. Statutes N. Y. (1828,) p. 282, Sec. 38

and 40.

2 Rev. Laws N. Y. p. 149, Sec. 16.

Montag v. Linn, 19 Ill. 399.

Vance v. Schuyler, 1 Gil. 160.

Second. Nor was he authorized to take acknowledg-

ments by the laws of Illinois. This was before the Act of

Illinois of 1819, and was governed by the Territorial Act

of September 17, 1807, Sec. 14, which provides that “ All

“deeds and conveyances by any persons not residing

‘ within this Territory, and brought here to be executed

“in the County where the lands lie, the acknowledgment

ee ay |

Pe ee ace ee ne ak = od

Neretiag iME Sot aii Bald A os et tk a s

- —

“thereof being taken and made in the manner hereinbe-

“ fore directed, before any Mayor or Chief Magistrate or

‘ officer of the cities, towns or places where such deeds or

‘¢ conveyances are or shall be made or executed, and cer-

“ tified under the common or public seal of such cities,

‘¢ towns or places, shall be valid, and as effectual in law

‘“asif the same had been made and acknowledged in

‘ manner aforesaid before any Judge of the General Court

“of this Territory, or before any Judge of the Court of

‘ Common Pleas, or Justice of the Peace for the County

‘“ where the land lies, anything herein contained to the

* contrary notwithstanding.”

Section eight of the same Act relates to acknowledg-

ments within the Territory, and names the above officers’

Ifence we say, that, under this Act, Estes Howe, as

Judge of the Common Pleas of Albany, had no power to

take acknowledgments of deeds for the State of Illinois, he

not being Mayor or Chief Magistrate of a city or town,

and not using the seal of any city, town or place.

Third. There is no proof that this deed was acknowl-

edged according to the laws of New York. There is no

certificate of conformity.

Nor has there ever been recorded a certificate that the

same was made before a proper officer, or in conformity to

the laws of New York.

It is a well settled rule in this State, that deeds must be

acknowledged or proved wholly in conformity to the laws

of this State, or in entire conformity to the laws of the

State where executed. The laws of the different States

cannot be invoked at the same time to aid the defect.

Lyon v. Kain, 36 Il., 368.

Montay v. Linn, 19 Ill. 401.

Adams v. Bishop, 19 Ill. 395.

The foregoing defects in the title of the defendant in er-

ror are so palpable and fatal, that that title ought not to

be tolerated by any Court or Jury; and even had it been

proved, it was defeated by the title of De Witt, through

which the plaintiff in error claims, first in date and first of

record. Accordingly, the Court erred in stating to the jury

that the deeds from Davenport to Hawley and Hawley to

Munson, were recorded May 17, 1819, and before the deed

to De Witt. The Court should have left it to the jury to

say which deeds were recorded first; and if they found

that the De Witt title was first recorded, they should have

been instructed to find for the defendant below.

4. The defendant in error sought to connect himself

with the title of William James, by showing a decree

of the Circuit Court of Pike county, Illinois, 72 a chancery

proceeding tor the partition of certain lands ; by the terms

of which, this land was alloted to John B. James, of whom

defendant in error is the executor.

The court allowed this decree to go to the jury against

the objections of the plaintiff in error, which went to the

jurisdiction of the court, as follows:

first. The Circuit Court of Pike county, Illinois, had

no jurisdiction to make the decree of partition as against

the infant heirs of William Jaines without full proof ; nor

to take the bill “ pro-confesso,” as against such infant heirs.

Proof must be made in full; against infants nothing can

be taken pro-confesso. No proof was made, and this goes

to the jurisdiction.

Claflin v. [letre, 18 Ul., 36, 38.

Enos v. Capps, 12 Ml, 255.

MeClay v. Norris, 4 Gil., 370.

Tlough v. Doyle, 8 Blackford, 300.

Chaffin v. Heirs of Kimball, 23 Il, 37.

DODANE A cee!

deiaiaita >

Second. A mere chancery decree of partition of the

Pike County Circuit Court (and this was such) without the

execution of deeds in pursuance thereof, and recorded

where the land lies, could not effect lands beyond the

county, nor does it change the legal title in the county

(and this land is in a different county), and should have

been rejected as evidence.

Aldridge v. Giles, 3 Henry & Mumford, 136.

Chickering v. Fatles, 29 Il., 304.

The defendant in error having declared for the whole

estate in fee simple, and not having devested the heirs of

William James, who were infants at the time of said par-

tition, cannot recover.

Murphy v. Orr, 82 Ml., 489.

It is distinctly decided in Chickering v. Failes, 29 IIL,

304, “ That whilst this is a proceeding in equity, a good

‘and sufficient partition, which a court of equity will rec-

“ognize and enforce between the parties to the bill, it is

‘not such a partition as vested in the parties a legal title

“to the shares assigned to each of them, for want of mu-

* tual releases.

‘ It is settled doctrine of the courts, that to vest the

*“ title in the parties to the shares allotted to each, they

“must execute releases for the portions not assigned to

** them.”

There were no deeds of this kind proved, or introduced

in evidence.

dsut another insuperable objection to this partition pro-

ceeding is, that Wm. James made a will vesting all his real

estate in three executors named, who alone had power to

convey. This will was proved by the plaintiff in error, and

fully explains the reason why in the said record of parti-

tion in Pike county the petition does not appear (which

of course had to allege that William James died intestate,

and which petition is understood long since to have disap-

peared from the files), and adds another strong suspicion

to the pretended claim of William James, and the fairness

and validity of those proceedings.

And this will shows a legal devise of all the lands of

which William James died seized in the State of Illinois,

to his three above executors named Gideon Hawley, James

King, and Augustus James; and therein he says he ap-

points them “ my said trustees.” See will; or //awley v.

Jumes, 16 Wend., 71, 74 and 281, wherein all the title that

William James had to any land in Illinois is confirmed in

them. If it had been averse, wesubmit it would not have

divested their title to the land in Illinois. Their title to

the land here must be governed by our laws.

See— Llawley v. James 7 Paige, 218-220.

An express decision in this very case, of the land of

William James in Illinois ; and the Chancellor holds, that

the title is in the trustees by the laws of Illinois, and that

the children of William James have only an equitable

interest.

Again, by the laws of Illinois, partition can only be

made between those who have title by “‘ purchase, devise,

or descent,” and their title must be shown.

See— 1 Purple Statutes, 7935 or

R. S. of IL, 1845, 394, chap. 79.

This is clear, showing that the defendant in error, as

executor of John Lb. James, had no legal title to maintain

ejectment. And if William James ever had title, it is

still clear, so far as the proof shows, that the same is in

his named trustees.

And the Pike county record recognizes incidentally the

existence of this state of facts, so far as one of the persons

are concerned, and it in no way or manner divests these

trustees of said title.

Therefore we say, that the plaintiff below, not having

shown a perfect title in himself, could not recover, and the

verdict should have been for Carpenter, being in posses-

sion under title. The title of the defendant in error is

open to the gravest suspicions, and full of palpable defects,

and ought not to prevail.

DEFENDANT'S TITLE.

Il.

But Carpenter was in possession under paramount title

from the patentee, every link of whose chain is perfect and

free from suspicion. He relies, of course, on the deed

from W.T. Davenport, the patentee, to Ephriam De Witt,

and from the heirs of Ephriam De Witt, by J. B. Strong,

their attorney, to himself. That Ephriam De Witt was

dead, and that his heirs are correctly named in the power

of attorney by them, was admitted to be true on the trial.

ITT.

Again, Eliphalet Hawley, the pretended grantee of the

patentee (in the title of the defendant in error) was at |

the time he took his pretended deed, a purchaser with —

actual notice of De Witt’s title, he being a subscribing

witness to thedeed from William T. Davenport to Ephraim

De Witt, a fact fully proved and which the jury should

have found, and would have so found had they been

properly instructed by the court.

The deed from Davenport to Hawley did not by its

terms amount to a warranty deed, and only passed such

title as the grantor had at the time.

A. GARRISON,

Lor PU in Error.

IN THE

Supreme Court of the United States,

December Term, A. D. 1868.

HENRY CARPENTER,

a In Error to Circuit Court,

JAMES DEXTER, Executor of Northern District of Ilinois.

JOHN B. JAMES, deceased.

Points, AUTHORITIES AND ARGUMENT, FOR DEFENDANT.

W. C. GOUDY, for Defendant in Error.

Beach & Barnard, Steam Print, 122 & 124 S. Clark St.

IN THE

Supreme Court of the United States,

December Term, A. D. 1868.

HENRY CARPENTER,

4 — In Error to Circuit Court,

JAMES DEXTER, Executor of Northern District of [linois.

JOHN BL. JAMES, deceased.

a A A ni ese nen sme — se

Points, AUTHORITIES AND ARGUMENT, FOR DeEFENDANT.

May it please your Honors :

On the 29th day of August, 1864, James Dexter, Exec-

utor of John B. James, deceased, the defendant in error,

| commenced an action of ejectment against ILenry Carpen-

i ter, the plaintiff in error, in the Circuit Court for the

$ Northern District of [linois, to recover the possession of

the north east quarter of section number twenty-five in

township fifteen north of range six east of the 4th princi-

pal meridian, a tract of land in Bureau County, Illinois.

The defendant plead the general issue.

There were four trials, all of which resulted in favor of

the plaintiff below. From the last judgment the defendant

below prosecuted a writ of error to this court.

Upon the trial the plaintiff below read in evidence a

Patent from the United States to William T. Daven-

port, dated May 27, 1818; a deed from Davenport to

Eliphalet Hawley, dated Sept. 1, 1818, and recorded

May 17, 1819; a deed from Ilawley to Thadeus Munson,

dated Dec. 12, 1818, and recorded May 17, 1819; anda

deed from Munson to William James, dated Feb. 13, 1819,

and recorded May 17, 1819, all conveying the premises

deseribed in the declaration. He also proved the death

of William James Dee. 19, 1832, leaving certain children

and grand children as his heirs at law, one of whom was

John B. James. The plaintiff below then read in evidence

an exemplification of a proceeding in the Circuit Court of

Pike County, Illinois, wherein John B. James and another

were complainants, and the other heirs of William James

were defendants, commenced in 1843, whereby the land

described in the declaration was alloted to John B. James

in severalty as sole owner thereof, in the year 1844. IIe

further proved that John B. James died testate May 22,

1856, and read in evidence his will properly probated, by

which he devised all his estate real and personal to James

Dexter, the plaintiff below.

The defendant below read in evidence a certified copy

of the same original patent produced by the plaintiff: a

x a * ~ a Pm

As Se OR E'S. Soka ets ae

i ig igs a

AL SE RT ie npr ee ae $ om

copy of a deed purporting to be made by William T. Da-

venport to Eph. DeWitt, dated Aug. 6, 1818, and record-

ed Dee. 19, 18615; a copy of a deed purporting to be from

William James to Levi Bebee, dated Oct. 13, 1819, re-

corded in Warren County Sept. 30, 1862; a deed purport-

ing to be from Levi Bebee to Ephraim DeWitt, dated

Nov. 1, 1822, and recorded Jan. 17, 1862. Ile also proved

the death of Ephraim DeWitt before 1845, leaving certain

children heirs at law, and read powers of attorney by such

heirs to John B. Strong, and a deed from these heirs by

the attorney in fact to Henry Carpenter, the defendant

below, dated July 22, 1861.

The plaintiff below to rebut the proof presented by the

defendant, read in evidence a copy of a record from the

Circuit Court of Warren County, Illinois, which shows a

bill in chancery filed by the plaintiff, James Dexter, exee-

utor of John L. James and others against Henry Carpen-

ter, the defendant, and others, Jan. 19, 1862, alleging that

the deeds produced in evidence by the defendant, purport-

ing to be made by William James to Levi Bebee and from

Levi Bebee to Ephraim De Witt were fabricated and

forged, and praying that they be set aside ; it further shows

personal service of a summons on Ilenry Carpenter, Ieb.

24, 1865, and a final decree rendered Oct. 24, 1866, declar-

ing said deeds to be forged and null and void, and restrain-

ing Carpenter trom setting up any claim under them,

Upon the trial the defendant below offered to read a

copy of the will of William James, to which objection was

made because it was not properly authenticated, and the

question was reserved, and the copy was read in evidence

OGLE LOL LL NALA A ALERT ON ~

subject to the objection, but the question was not further

considered, because the Court was of the opinion that the

will was ‘not material as to property in Illinois, and no

exception was taken. Upon the trial Carpenter himself

testified as a witness, but I do not perceive that his evi-

dence is material, and no exception was taken in regard

thereto.

EXCEPTIONS.

Upon the trial certain exceptions to decisions of the Court

were taken by the plaintiff in error and are preserved in

the record, for review by this Court.

I present them in the order taken.

Drrp From Davenport to Haw Ley.

Objection was made to the deed from Davenport to

IIlawley on the ground that it had not been proved.

Printed Record, 12, 19.

The objection was properly overruled.

1. The deed was acknowledged before a Justice of the

Peace in Albany County, N. Y., Sept. 1, 1818. At that

time a Justice of the Peace was not authorized by the laws

of New York to take the acknowledgment of deeds, and

such officer was not allowed by the laws of Illinois, to take

the proof of deeds out of the State. For these reasons it

is admitted that the proof of the execution of the deed

before the Justice was insufficient at the time it was taken.

Yet this acknowlegement was made good by a statute of

Illinois passed in 1847.

In form the certificate conforms to the law in force in

Illinois at the time it was made. The statute governing

the case was passed in 1807 by the Territorial Legislature

of Indiana.

Purples Real Estate Statutes, 460.

The law of 1819 by the first State legislature of Illinois

is a copy of the statute of 1807, changing the word territo-

ry toState. ded, 462.

The statute of 1819 did not require the officer to certify

to the identity of the person acknowledging the deed.

Ayers v. McConnell 2 Scam, 308.

Such a provision was first adopted in 1827.

Purples’s Real Estate Stai. 476.

The certificate to the deed from Davenport to Hawley

was, therefore, in accordance with the laws of Illinois, ex-

cept that it was not made by an officer authorized by the

statutes at that time.

The legislature of Illinois, in 1847, passed a statute that

all deeds of land lying within the State should be acknow-

leged before certain ofticers named, and that “such proof

and acknowledgment may also be made before any jus-

tice of the peace, but if such justice of the peace reside

out of this State, there shall be added to the deed a

certificate of the proper clerk, setting forth that the

person, before whom the proof or acknowledgment was

made, was a justice of the peace, at the time of making

the same;” and then declares that “all deeds and con-

veyances, which have been, or may be, acknowledged or

proved in the manner prescribed by this section, shall

be entitled to record, and be deemed as good and valid in

law, in every respect, as if the same had been acknowledged

or proved in the same manner prescribed, &c.”

Laws 1847, 37.

As the deed had been proved before an officer mention-

ed in this section, and in the form required by the law in

force in 1818, it was after the passage of the act of 1847

entitled to record, and to be read in evidence.

The certificate of the proper clerk that the person mak-

ing the certificate was a justice of the peace at the time

was procured and bears date April 27, 1866.

2. On the 2d day of September, 1818, a second certifi-

cate of acknowledgment was made by a commissioner of

deeds for the city of Albany, N. Y.

Printed Record, 15.

dy this certificate it appears that one of the subscribing

witnesses to the deed, to the commissioner known, came

before him, and swore that he saw the grantor execute and

acknowledge the deed and knew him to be the same per-

son described in, and who acknowledged to have executed

the same.

This proof of the deed was in conformity with the law

of New York.

1 Lev. Law, NV. ¥. 1813, p. 369.

Being according to the law of a sister State the statute

of Illinois declared that it was duly proved, entitled to re.

cord, and to be read in evidence.

Purples Leal Estate Statutes, 465.

Laws 1847, 37.

3. The deposition of a witness was taken who proved

the hand writing of H. Wendell, Jun’r. one of the subscrib-

ing witnesses to the deed, and that such witness was dead.

Printed Lecord, 17.

It appears that the deed was executed at Albany, New

York, from which fact the presumption is that both of the

subscribing witnesses resided at that place, and were be-

yond the jurisdiction of the Court.

The execution of the deed was, therefore, proved ac-

cording to the rules of evidence at common law.

The counsel for the plaintiff in error, however, claims

that the legislature of Illinois has prescribed a rule by see-

tion 41, chap. 24, entitled conveyances, (Rev. Laws 1845,

110), changing the rules of evidence at common law, in

regard to the proof of a deed. The Supreme Court of

Illinois has expressly decided otherwise, and that section

41 relates to proof before a ministerial officer, not to evi-

dence in a court.

Newsom v. Luster, 13 IIll., 185.

The deed is not only sufficiently proved, but is properly

authenticated in these three different modes, either of

which was enough to admit it in evidence.

Il.

Derrp rrom ITAWLEY To Munson.

This deed was properly proved, as appears from the

certificate of I. Wendell, junior, a commissioner of deeds

in New York.

Printed Record, 16.

The acknowledgment was in conformity with the laws

af New York.

1 Lev. Laws 1818, N. Y, 369.

And being so, it was legally proved according to the

statute of Illinois.

Purples Leal Estate Statutes, 465.

Laws 184%, 37.

An objection is made to this certificate, and to one of

the certificates to the former deed, and to the next deed

from Munson to James, because the only venue to it is

‘‘ State of New York, ss.”

The counsel for plaintiff in error refers to Vance v.

Schuyler, 1 Gilm., 168, as authority that such a certificate

has no assignable locality. In that case the Supreme

Conrt held a certificate bad, because the only means of de-

termining where it was acknowledged was the venue.

‘¢ Lincoln ss. Wiscassett.”’

It will be observed at once that the State of New York

8 GER GH

3 —-

is a definite place, while “ Lincoln ss. Wiscassett” does

not certainly show any state, county or town.

This deed differs from the one rejected in Vance v. Schuy-

ler in other respects.

First. It has a certificate attached that Hl. Wendell,

junior, was a commissioner of deeds in and for the city of

Albany, in the county of Albany, State of New York,

dwelling in said city, authorized to take the acknowledg-

ment, and that the deed was executed and acknowledged

according to the laws of New York.

Second. The grantee is described as being of the city

of Albany, and the deed is written on the back of the deed

from Davenport to Ilawley, the grantor, which was ex.

ecuted at Albany, in the county of Albany, in the State of

New York, and describes Ilawley as being of the same

place.

The Supreme Court of Illinois, in a recent case, where

the certificate and venue were exactly the same as that in

Vance v. Schuyler, sustained the deed, upon the ground

that the grantor and grantee were described in the body

of the deed as being “of the State of Massachusetts,” and

there was a certificate that the officer was a notary public

in Lincoln county, Massachusetts. These facts were held

to be sufficient to show the deed was acknowledged in that

county and state.

Harding v. Curtis, 48 111.

It may be true, as claimed by the counsel for the plain-

tiff in error, that a commissioner of deeds in New York

could not take an acknowledgment out of his county, yet

the statute did not require that he should aver that he did

act within his county. The presumption of law always is,

that a public officer performs his official duty at the place

appointed by law.

It is well settled that the court will examine the whole

instrument to ascertain the place where it was acknow-

ledged, and for this purpose it will be presumed that it was

acknowledged where the parties or officer resided.

Bradford v. Dawson, 2 Ala., 203.

Brooks v. Chaplin, 3 Vt., 282.

Fuhrman v. Land, 138. & it., 383.

Beckel v. Pettigrew et al, 6 Ohio, 247.

Truluck v. People, 1 Kelley, 3.

“andler v. Spear, 22 Vt., 388.

I quote from the case of Lrooks v. Chaplin, 3 Vt., 282:

‘“‘It appeared by inspection of the deed, that the grantor

described himself as a resident ot Suffield, in the county

of Hartford and State of Connecticut. The acknowledg-

ment was taken two days after the date of the deed, and

commenced as follows: “Hartford County, ss., April

24th, 1797.’ Then personally appeared,” &e. .

‘er Curiam. “It is not indispensable that the place of

taking should fully appear from the acknowledgment

itself, provided it can be discovered with sufficient certainty

from the whole instrument. And if we can infer, beyond

any reasonable doubt, that the acknowledgment endorsed

upon this deed was taken in the county of Hartford and

State of Connecticut, it is to be regarded as a legal ac-

knowledgment. We deem it a fair presumption in the

absence of all evidence to the contrary, that the deed was

executed at the time it bears date, and at the place of the

grantor’s residence. And finding the acknowledgment so

soon afterwards in the county of Harlford, we can intend

no other than the same county of Hartford in which the

deed is supposed to have been executed.”

IV.

DEED From Mctunson To JAMES.

The objection to the venue “State of New York, ss.,”

to the certificate of acknowledgment to this deed has al-

ready been discussed.

In this deed both of the parties are described as being

of the city and county of Albany, in the State of New

York, and the officer signs the certificate as judge of the

Albany Common Pleas, &c.

The deed was acknowledged according to the laws of

New York.

1 Lev. Laws NV. Y., 1813, p. 369.

And by the statute of Illinois was entitled to record and

to be read in evidence.

Purples Real Estate Statutes, 465.

Laws 1847, 37.

It is claimed that there should have been a certificate

of the official character of the person who took the ac-

knowledgment and of conformity to the laws of New

York.

I answer, neither the laws of New York or Illinois re-

quires any such certificate. Unless the statute requires a

certificate of official character it is unnecessary.

Vance v. Schuyler, 1 Gilm., 163.

Secrist v. Green, 3 Wallace, 749.

And the Court takes jurisdiction of the laws of another

state, so as to determine whether it is acknowledged in

conformity to its laws or not.

In this case, however, it was agreed that the statutes of

New York were to be considered as evidence.

Printed Record, 59.

. .

Recorp or PARTITION PROCEEDING.

1. The defendant below objected to the record of a

decree in the partition proceeding, because, he alleged, it

did not show jurisdiction of the persons and subject matter.

No other objection was made.

L’rinted Lecord, 40.

This identical record was read in evidence in the case of

Secrist v. Green, 3 Wallace, 749.

And this Court then held that jurisdiction was shown by

it.

A further point is now made that no proof was made as

against the infant defendants.

This does not go to the jurisdiction.

Fvidley v. Murphy, 25 Il., 146.

Goudy v. ffall, 36 l., 318.

o™

2. The counsel for the plaintiff in error claims that it

was necessary for mutual conveyances to be made between

the tenants in common, in order to invest John B. James

with the entire title to the tract of land described in the

declaration.

This might be true if the proceeding was in a court of

equity. It was not; but was under the statutes of Illinois

in force at that time. One of the main objects of such

legislation was to dispense with mutual releases; and the

court was authorized to invest the several parties with the

title to the property allotted without reqniring convey-

ances.

Street v. MeConnell, 16 Ill., 126.

The final decree rendered declares that the lands allotted

shall be held in severalty in fee simple in lieu of all the

land described in the proceeding. |

Printed Record, 39, 40.

Vi.

Tue CHARGE OF THE CouRT.

The court below stated fully the facts proven and left

the questions to the jury: jirst, whether the heirs-at-law of

William James were made parties to the partition proceed-

ing in Pike County; second, whether there was notice to

William James of the deed purporting to be made by

Davenport to De Witt.

As both of them were questions of fact they were prop

erly left to the jury. No point is now made for the plain-

titfin error thereon.

This concludes the only exceptions preserved in the

record.

VII.

Tur Question or Priority oF Recorp.

The counsel for the plaintiff in error states that there is

no evidence that the deed from Davenport to Hawley,

under which the defendant in error claimed, and, as the

deed from Davenport to DeWitt was recorded December

19, 1861, under which the plaintiffin error claimed, he

had the better title.

I answer to this point, rst, there was evidence that the

deed from Davenport to Hawley was recorded May 17,

1819; and second, no exception was taken either to the

evidence or charge of the court, so as to preserve any

such question for review in this court.

The evidence consists of a certificate endorsed on the

deeds from Davenport to Hawley and from Hawley to

Munson, both being on the same paper, which reads:

“Srare or Inirvois, Maprison Counry,

“ Recorder’s Office, Edwardsville, May 17, 1819.

“TI certify the within deeds, together with the certificates

“ of acknowledgment, are this day recorded and examined

“in my Office in Book V., p. 353 and 354.”

Printed Record 16, 17.

The deeds, acknowledgments and notes of record were

offered in evidence.

- Ibid 12.

Objection was made to the deeds, but none to the notes

of record.

Lhid 19.

As no objection was made, of course no exception was

taken.

The court instructed the jury that, “ The deed from

Davenport to Hawley was recorded, in the proper office,

before the deed from Davenport to DeWitt,” and no ex-

ception was taken to that part of the charge.

The point to be determined by the jury was one of

actual notice of the unrecorded deed. There was no evi-

dence whatever on that question. It is true the copy of

the deed from Davenport to DeWitt purported to be wit-

nessed by Eliphalet Hawley, but there was no evidence

tending to prove that the signature was that of the grantee

in the first deed.

It is not improper to state, what must be inferred, that

the point now made, that the certificate of the record

of the deed from Davenport to Hawley lacked the signa-

ture of the recorder, was not observed by the court or the

counsel on either side during any of the four trials below.

It is now observed, and the question is raised for the first

time.

Under these circumstances the plaintiff in error cannot

procure a reversal upon this ground.

VIII.

Tue Witt or WILLIAM JAMES.

For the purpose of proving title out of the plaintiff be-

low, the defendant offered a copy of the will of William

James, by the terms of which the estate was devised to

three trustees.

Objection was made, because it was not properly au-

thenticated ; the court reserved the question, and allowed

the document to be read subject to the objection.

Printed Ltecord 61.

During the progress of the trial the will was treated as

immaterial, and was not pressed by the defendants below.

No exception was taken so as to preserve any question in

the record for this court.

Printed Record 116.

The objection to the copy was well taken.

The only authentication was the certificate of the Surro-

gate of Albany County, New York, that the copy was a

correct transcript of the will and proofs.

Printed Record 75.

This is not in compliance with the laws of the United

States in regard to records or office papers in a foreign

State, because there is not a certificate to the official char-

acter of the person making it; it does not appear that the

Surrogate was the sole judge or clerk of his court, or that

the attestation was in due form.

There is a statute in Illinois authorizing foreign wills to

be certified in a particular manner and recorded in Illinois,

and copies from such record to be read in evidence.

Laws 1858, 239.

2 Purple’s Statutes 1226.

This copy fails to show certificates according to the Illi-

nois statute ; the document has not been recorded in that

State, and the copy offered does not come from an officer

of a county court in Illinois.

Had the defendant below urged the copy of the will and

proof, it must have been rejected.

This identical will, however, was set aside and declared

void by the courts of New York.

Hawley v. James, 16 Wend. 71.

It is true that the Court of Chancery in New York sub-

sequently held the will according to the law of Lllinois to

be valid so far as it related to the trust in regard to lands

in Illinois, and the naked title to be in the trustees.

Hawley v. James, 7 Paige 218.

Yet the courts of Illinois have never so decided. The

will was never brought to that State or proved therein,

and, if necessary, we could show that by the law of that

State the title never did pass to the trustees, but, on the

contrary, descended to the heirs-at-law.

Again, the finding and decree of the Pike County Cir-

cuit Court is conclusive on this question.

In conclusion, I have to say that the statement of the

case by the counsel for the plaintiffin error, at the com-

mencement of his brief, isnot maintained by the record.

The questions raised are clearly in favor of the judgment

rendered. The plaintiff in error shows no merits in his

defence, and after four trials, all resulting against him, he

ought to be content.

W. C. GOUDY,

for Defendant in Error.

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