Bowman v. Wettig

• Decision Date: 31 January 1866
• Citation: 1866 WL 4413,39 Ill. 416
• Parties: JOHN B. BOWMANv.ANDREW WETTIG.
• Court: Illinois Supreme Court

39 Ill. 416

1866 WL 4413 (Ill.)

JOHN B. BOWMAN

v.ANDREW WETTIG.

Supreme Court of Illinois.

January Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Mr. G. KOERNER, for the appellant.

Mr. WM. H. UNDERWOOD, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment in the Circuit Court of St. Clair county, brought by John B. Bowman against Andrew Wettig, to recover the possession of lot one in block twenty-one, in Illinoistown in that county.

The cause was tried by a jury under the general issue, and a verdict for the plaintiff. A motion for a new trial was made and overruled, and a judgment entered on the verdict and a writ of possession awarded. From this judgment the defendant appeals to this court, and assigns as error, that the court admitted improper evidence for the plaintiff, by admitting all the different papers and title papers to be read in evidence against the objections of the defendant; that secondary evidence was admitted without proper preliminary proof and notice; that the deed from the sheriff to the defendant was improperly excluded by the court; that the court refused to give to the jury the defendant's instructions; the court refused a new trial, the verdict being against the law and the evidence; and for other errors not specially assigned.

It appears from the bill of exceptions, that the plaintiff, to maintain the issue on his part, offered in evidence a book purporting to be a record of the plat of Illinoistown, to the reception of which the defendant objected. The court overruled the objection and admitted the record in evidence. On this ruling the appellant makes his first point. He insists that the record book should not have been admitted for the reason that the law then in existence did not allow such a paper to be recorded.

In the declaration, the premises in controversy are described as “lot one in block twenty-one in the town of Illinois, reference being had to the plat of said town as laid out and caused to be recorded by John McKnight and Thomas Brady, in book C, pages 314 and 315, of the records in the recorder's office, in and for said county of St. Clair.” This record was the evidence offered by the plaintiff, and was made on the 14th day of May, 1818.

The appellant insists that the plat was not authenticated or acknowledged, and that it was irrelevant to the issue.

The record shows, in addition to the recorded plat, that the plaintiff introduced a witness, J. N. Piggot, who testified that prior to 1816, one Etienne Pensonneau claimed a tract of land opposite the city of St. Louis on Cahokia creek or river L'abbe, some ten arpents in front and running back to the bluffs; that he had built some houses on the tract opposite St. Louis; that at that time, the United States authorities had not surveyed the land; that the tract was made up of French arpent claims in the Cahokia common field; that the boundaries of these claims were distinctly marked by stones, some of which were still visible; when these claims were surveyed by the United States the surveys were numbered, and those included in Pensonneau's claim were surveys 117, 118, 119, 120, 121, 122, 123, 124 and 125; Pensonneau sold this tract made up of these surveys to McKnight and Brady, and they laid out upon it the town of Illinois, and built on some of the lots and sold other lots afterward, claiming title; they never resided on the land but were merchants in St. Louis; they built a mill on the tract but not in the “town tract;” the buildings erected by Pensonneau were not on the survey on which the lot in question was located, and he is not certain whether the mill built by McKnight and Brady was on the same survey on which the lot in controversy is, but believes it might touch a part of the block in which the lot is; that defendant was in possession of the lot; had inclosed it with a fence; had an orchard on it, and had occupied it about ten years; the plaintiff also offered in evidence a certified copy of a recorded deed from Etienne Pensonneau and wife to McKnight and Brady for all that certain tract or quantity of land lying and being and situated near the Mississippi river opposite the town of St. Louis, containing ten acres and a half front on the river L'abbe, and running in depth fifty acres, being a north and south course, that is to say, the same course that the land (lines) of the common field of Cahokia run, on which said land is erected a brick house, a store and other outhouses.

The witness, Piggot, testified that the lot in controversy was on this tract of land and was a part thereof. This deed was also objected to by the defendant for uncertainty, and because no proper foundation for its introduction had been laid, and because it was not properly acknowledged and authenticated, and that no notice had been given the defendant to produce the original deed.

To account for the absence of the original deed the plaintiff was sworn in court, and testified that he had made proper search; that the original deed was not in his possession, and that he could not produce it.

It will be observed the plaintiff claimed nothing by force of the town plat. The plat itself was not a necessary muniment of title. A party may establish title to a piece of ground described in his deed as a town lot, although no plat has ever been made and recorded. If he can give locality to the premises, he is not to be prejudiced by any omission of his grantor to comply with the requirements of the statute to make and record a plat. The various provisions of the statute respecting the laying out of land into town lots, do not make it necessary to produce the plat in every controversy concerning the title to a town lot. All this was said by this court in the case of Manly et al. v. Gibson, 13 Ill. 308, and has direct application to this case.

The plaintiff sought, by the introduction of the plat, to locate the premises in controversy, which he was enabled to do by connecting it with the testimony of Piggot. It matters not, then, whether the plat was or not improperly admitted to record. Suppose the plaintiff, on the trial, had made a plat of the Pensonneau tract and of the town of Illinois thereon, and asked the witness Piggot if the lot marked on it as lot one, in block twenty-one, was on a part of the Pensonneau tract? This the witness could do, if he knew the location of the Pensonneau claim. Whether the premises in controversy were included within that claim, was purely a question of fact, of which any one knowing the fact could speak. Any evidence, therefore, tending to solve this question was properly admissible. Manly et al. v. Gibson, supra. The plat then, taken in connection with the testimony of Piggot, went to identify the premises, and was properly admitted in evidence.

As to the objection made to the certified copy of the record of the deed from Pensonneau and wife to McKnight and Brady, it will be observed the plaintiff made oath that he was not in possession of the original, that he had searched for it unsuccessfully, and could not produce it. To this preliminary proof no objection appears to have been made by the defendant, and it will, therefore, be held sufficient, and it brings the case within the act of the General Assembly, entitled “An act to amend chapter 24 of the Revised Code of 1845, entitled ‘Conveyances.’ ” Laws of 1861, p. 174. No notice to the opposite party, in any such case, to produce the original, was ever required. It is only in cases where the party proposes to prove the contents of an instrument, as at common law by parol, that notice is requisite; never, we believe, where the record is intended to be used as evidence. It is understood to be the practice in all courts to read copies from the registry of deeds where the originals cannot be had. 1 Greenl. on Ev. § 571, in note 2. In this State, it has been held if a deed has been recorded a transcript may be introduced, the party offering it making oath that the original was not in his custody and was beyond his control, and this independent of any statute. Ferguson v. Miles, 3 Gilm. 358; Mariner v. Saunders, 5 Id. 113.

The general rule is, that a party will not be allowed to give parol evidence of the contents of a written instrument, unless he has given the opposite party notice to produce the original, but this has no application to recorded deeds. The record can be read, or a certified copy used as evidence, on proof being made of inability to produce the original in conformity with the act of 1861, above cited. The transcript is regarded as the highest and most satisfactory degree of secondary evidence.

The objection that this deed is void for uncertainty in the description of the land conveyed, if ever valid, is removed by the testimony of Piggot. He locates the land, and fully identifies it. He proves the existence of boundary lines marked by stones, and the surveys as made and numbered by authority of the United States, and the erection of buildings on the land by Pensonneau. We are of opinion the description of the land conveyed, was made sufficiently certain by this testimony, so certain as to distinguish it from all other tracts in that locality, and of which the sheriff could, without mistake, put a party in possession, and this degree of certainty is all the law requires.

The plaintiff then offered in evidence a certified transcript of the record of a deed, accompanied by the same preliminary proof of absence of the original, of partition between McKnight and Brady, of the lots in Illinoistown, allotting to themselves in severalty the lots therein, the lot in question falling to the share of Thomas Brady.

The objections made to this deed are, that it refers to a nonexisting town plat or survey, of which there was no evidence, and that the deed was not properly acknowledged under the act of January 19, 1819, in force...