v. Smith
Decision Date | 01 December 1861 |
Citation | 1 Black 459,17 L.Ed. 218,66 U.S. 459 |
Parties | McCool v. SMITH |
Court | U.S. Supreme Court |
Writ of error to the Circuit Court of the United States for the northern district of Illinois.
Hamilton McCool brought ejectment in the Circuit Court against Spencer Smith for the northeast quarter of section eleven, in township 10 north, of range 1 west, of the fourth principal meridian. The defendant pleaded not guilty, and a jury being called, found the following special verdict:
'That the land mentioned in the said declaration was, on the 7th day of June, 1818, duly granted by the United States to Alonzo Redman, for his military services in the late war between the United States and Great Britain; that said Redman was the illegitimate son of Polly Norris; that said Polly Norris had three other illegitimate children, named Eleanor Fogg, Joseph Melcher, and Sophia Norton; that Eleanor Fogg died without issue in the year 1824; that Joseph Melcher died without issue in the year 1814; that Alonzo Redman died without issue in the year 1825; that Polly Norris died without any other issue than as above stated, in the year 1837; that Sophia Norton married Reuben Rand in the year 1816; that Reuben Rand died in June, 1853; that Sophia Rand, on the 23d day of June, 1854, by her quit claim deed of that date july executed, conveyed said land to one Levi F. Stevens; that said Stevens, on the 21st day of April, 1855, by his quit claim deed of that date, duly conveyed said land to Spencer Smith, the plaintiff.
'That the General Assembly of the State of Illinois passed an act, entitled 'An act to amend an act concerning the descent of real property in this State, approved February 12, 1853,' which act was approved by the Governor on the 16th day of February, 1857, which act is in the words and figures following, viz:
'That said lands have never been proceeded against, and the title thereto vested in the State, or other persons, under the law of this State concerning escheats.
Upon this verdict the Circuit Court gave judgment for the plaintiff, and the defendant took his writ of error.
Mr. Browning, of Illinois, for plaintiff in error. Redman being an illegitimate child, his mother could not take under the ordinance of 1787, which speaks only of children, descendants, parents, next of kin, &c. When words denoting kindred are used, either in laws or private instruments, without other additions, they include none but legitimate kindred. 2 Kent's Com., 212-13; 4 Kent's Com., 413-14; 3 Cruise Dig. Tit., 29, ch. 2, sec. 8, and note; 2 Domat., p. 26, Art. 2455; p. 49, Art. 2497 and 8; p. 88, Art. 2571; p. 211, Art. 2861; p. 280, Art. 3029; p. 283, Art. 3036; p. 178, Articles 2793 and 4; Illinois Stat. of Wills, sections 46, 47, and 53; Bayley vs. Mollard, (1 Russel & Mylne, 575;) S. C. 4 Cond. Eng. Chancery R., 565; Wilkinson vs. Adams, (1 Ves. & Bea., 422;) Swaine vs. Kennedy, (1 Ves. & Bea., 469;) Beachcroft vs. Beachcroft, (1 Madd., 234;) Sherman vs. Angel, (1 Bailey Eq. R., 351;) Collins vs. Hoxie, (9 Paige, 88;) Durant vs. Friend, (11 Eng. Law and Eq. R., 2;) Owen vs. Bryant, (13 Eng. Law and Eq. R., 217.)
The Illinois statute of 1829 provided, not that bastards should inherit from each other, or that their mother should inherit from them, but only that they should inherit from their mother. At any rate it does not embrace this case, for Redman died four years before it was passed.
The act of 1853 did provide, that upon the death of an illegitimate person leaving no husband, wife, or children, his or her estate should go to the mother; and if there was no mother, then to the mother's next of kin. But this act was prospective and did not meet a case like this, where the decedent had died long before.
It was after the commencement of this suit that the plaintiff procured the act of 1857 to be passed, which is set forth in the special verdict, and which declares that the act of 1853 shall relate back to the cases of illegitimate persons who died before its passage. As a law which impairs existing rights, its validity cannot be sustained. Gaines et al. vs. Buford, (1 Dana, 499;) Holden vs. James, (11 Mass., 404;) Hoke vs. Henderson, (4 Dev., 7;) Walley's Heirs vs. Kennedy, (2 Yerg., 554;) Bank vs. Cooper's Securities, (2 Yerg., 600;) Jones vs. Perry, (10 Yerg., 69;) Picquet's Appeal, (5 Pick., 65;) Lewis et al. vs. Webb, (3 Greenl., 326.) Was it a legislative grant of public land by the State? The title was not vested in the State by a judgment of escheat, and therefore the grantee could take nothing, certainly nothing more than the inchoate right of the State. Ill. St. of Esch., Rev. Code of 1845, p. 225; 3 Blackstone Com., 259; Fairfax's Devisee vs. Hunter's Lessee, (7 Cranch, 625-6;) 2 Curtis, 690-1; Craig vs. Bradford, (3 Wheat., 599;) S. C. 4 Curtis, 308; 3 Com. Dig., Tit. Escheat, page 598, bottom paging; Den vs. Simpson, (Cam. & Nor., 192;) Marshall vs. Loveless, (Cam. & Nor., 233;) McCrury vs. Allender, (2 Har. & McHen., 409;) Doe vs. Horniblea, (2 Hayw., 37.)
If a proceeding had been instituted against the land as escheated, the present defendant would have been made a party, and his defence would have been unanswerable. He had bought the land from the State at a tax sale, paid for it, and been in possession fourteen years. But the grant was not to the plaintiff. If it vested title in anybody, it was either in Sophia Rand, who would have inherited under the act of 1853, or else in her grantee, Levi F. Stephens. True, Stephens attempted to convey to the plaintiff, but he had no title, and as his deed was merely a quit claim, his subsequently acquired title did not inure to the benefit of the plaintiff. Jac. Law Dict. Grant Dellany vs. Burrett, (4 Grl., 493;) Funk vs. Dart, (14 Ill., 307;) Phelps vs. Kellog, (15 Ill., 135.)
Even admitting that the act of 1857 was valid, conceding that it could operate retrospectively, and granting that it vested a title in the plaintiff himself, still he could not recover in this action, because it was commenced before he acquired his title. Such is the rule of the common law, and the ejectment statute of Illinois is emphatic and clear to the same effect. Section 3 provides that no person shall recover in ejectment unless he has title at the time of commencing the action.
Besides all this, the defendant was completely protected by the statute of limitations, which declares that seven years' possession of land, with payment of taxes, shall entitle the occupant to be adjudged the legal owner to the extent of his proper title.
Mr. Kellogg, of Illinois, for defendant in error, argued that the mother of Redfield was his next of kin within the meaning of the law of descents, though the son was illegitimate; that his illegitimate sister could inherit, through her mother; and that the act of 1857 was constitutional.
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