Russell v. the Baptist Theological Union.

• Decision Date: 30 September 1874
• Citation: 1874 WL 8988,73 Ill. 337
• Parties: CORNELIA RUSSELLv.THE BAPTIST THEOLOGICAL UNION.
• Court: Illinois Supreme Court

73 Ill. 337

1874 WL 8988 (Ill.)

CORNELIA RUSSELL

v.THE BAPTIST THEOLOGICAL UNION.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. ISHAM & LINCOLN, for the appellant.

Messrs. HOLDEN & MOORE, and Messrs. MCCAGG, CULVER & BUTLER, for the appellees. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Appellant filed her petition for the allotment of dower in the premises in controversy about the 9th day of June, 1871. It appears that, in June, 1837, J. B. F. Russell, then the husband of appellant, owned the premises, and executed a mortgage on these and other premises to one Elijah K. Hubbard, to secure a number of acceptances given by him; and appellant's name was signed to the mortgage, which is certified by a justice of the peace of Cook county to have been duly acknowledged by both Russell and wife. This mortgage was subsequently foreclosed by a writ of scire facias, in the Cook county court, by a judgment rendered on the 29th day of November, 1845. The facts in reference to that foreclosure appear in 41 Ill. 183. By mesne conveyances, appellees connect themselves with the sale of the premises under that foreclosure. One of the objections then taken to the judgment was, the want of service to sustain the judgment of foreclosure rendered against this appellant.

There was an indorsement on the writ of scire facias, “We hereby acknowledge service of this writ, and pray the court to enter our appearance accordingly.” This indorsement had the names of Russell and wife signed to it. The judgment in the case finds that both of the makers of the mortgage had been duly served with process, and, being defaulted, a judgment was rendered and the premises sold, and, not having been redeemed, a deed was made to the purchaser. Russell having died in 1861, appellant sued out a writ of error from this court to the April term, 1866, when, on a hearing, the judgment was affirmed, and those proceedings are set up and relied on as a defense in this case.

Appellant, afterwards, in June, 1871, instituted this proceeding, and appellees, as grounds of defense, insist the claim is stale; that appellant is equitably estopped as well as by the judgment of foreclosure rendered in 1845, and that they have a bar under the statute of 1839, by claim and color of title and seven years' payment of taxes. The grounds of recovery now assumed by appellant are, that she never signed or acknowledged the mortgage or the acknowledgment of service of the writ, or authorized it to be done by any person for her. She testifies that she was absent from the State from some time in the latter part of the year 1836 until early in 1838, and hence could not have signed or acknowledged the mortgage at or near its date. Several witnesses testify that they remember her absence about that time, and say they do not remember having seen her in Chicago in June, 1837; and witnesses acquainted with the handwriting of Capt. Russell give it as their opinion that both signatures to the mortgage were written by him. Mrs. Campbell says she remembers meeting appellant in Philadelphia in the early part of June of that year, and appellant left there, saying she was going to Alexandria, Virginia, but did not see her afterwards.

This is the evidence upon which it is sought to impeach the execution of the mortgage, and the certificate of acknowledgment made by a justice of the peace, apparently regularly and in the due course of business. When carefully examined, this evidence, aside from that of appellant, is loose, indefinite and unsatisfactory. The witnesses, exclusive of appellant, do not swear positively that appellant was absent at the date of the deed, but say she was East on a visit that summer, and they do not remember having seen her in June of that year. This may all be true, and appellant have been there and directed her husband to sign her name to the mortgage, and have acknowledged it before the justice of the peace; and she may have been in Philadelphia in the early part of June, and yet returned to Chicago by the 20th of that month.

Again, a married woman may, as well as others, execute any instrument by having another sign her name to it, if she adopts it and acknowledges it as her own; hence, if it were conceded that her name was written by her husband, we would presume it done by authority, rather than impute what would be a forgery. A man has no more right to sign his wife's name to a paper, by which she can be bound and her rights affected, than he has that of any other person.

Then, to decree appellant dower in these premises, we must hold that Capt. Russell and the justice of the peace committed forgery. To so hold we must believe he wrongfully, and to defraud Hubbard, signed his wife's name to the mortgage, and the justice of the peace made a false certificate of her acknowledgment. Before we can find such facts we must have the most clear and satisfactory evidence, whilst here we must hold that the evidence is not of that character. The whole question, as we have seen, depends mainly on the evidence of appellant, the balance of it only slightly tending to corroborate...