Coleman v. Billings

• Decision Date: 30 June 1878
• Citation: 1878 WL 9999,89 Ill. 183
• Parties: WILLIAM T. COLEMANv.ELIZABETH S. BILLINGS et al.
• Court: Illinois Supreme Court

89 Ill. 183

1878 WL 9999 (Ill.)

WILLIAM T. COLEMAN

v.ELIZABETH S. BILLINGS et al.

Supreme Court of Illinois.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was a bill in chancery, filed by William T. Coleman against Elizabeth S. Billings, Lewis B. Parsons, Catharine W. Gronau, John Gronau and Amos Atkins, for the partition of a half section of land, being the south half of section 25, township 3 north, range 9 west.

The certificate of the acknowledgment of the deed of Joseph Worley, and Elizabeth Worley, his wife, referred to in the opinion, is as follows:

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“STATE OF ILLINOIS,¦)¦     ¦
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                ¦                            ¦)¦ss.  ¦
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                ¦Monroe County.              ¦)¦     ¦
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Personally present the above named Joseph Worley, and Elizabeth, his wife, before me, a justice of the peace in and for said county, and acknowledged their respective signatures to the foregoing instrument of writing to be their voluntary acts and deeds, for the purposes therein contained, the said Elizabeth, wife of said Joseph Worley, being by me, the said justice of the peace, before whom the above acknowledgment was made, examined separate and apart from her said husband, so as done without compulsion or coercion on his part, and accordingly may be recorded.

In testimony whereof I have hereunto set my hand and seal, this 19th day of September, A. D. 1826.

SAMUEL BAILEY, J. P.” [seal]

Messrs. GILLESPIE & HAPPY, for the appellant.

Mr. CHARLES P. WISE, for the appellee E. S. Billings.

Messrs. IRWIN & KROME, for the appellees C. and John Gronau.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This appeal brings before us for review the record of a proceeding, by bill in chancery, for partition, in behalf of appellant and against appellees. The decree, on final hearing, was, that the bill be dismissed.

Appellant claims title to the undivided four-fifths of the tract of land in controversy, derived through a series of mesne conveyances from John Beard, the original patentee, who died intestate many years since. On the hearing he offered in evidence a deed for an undivided one-fifth of the tract, from Elizabeth Worley, one of the children and heirs at law of the said John Beard, to William A. Beard, a remote grantor of appellant. Joseph Worley, the husband of Elizabeth, joined with her in the execution of the deed, and it was acknowledged before a justice of the peace of Monroe county on the 19th of September, 1826. On objection by appellees' counsel, the court refused to receive the deed in evidence, upon the ground that the certificate of acknowledgment was insufficient to pass the estate of a married woman.

The objections taken to the certificate of acknowledgment are, it does not state that the justice of the peace read or otherwise made known the full contents of the deed to the wife; it does not state that the wife, “on separate examination, declared that she did voluntarily, and of her own free will and accord, seal and deliver said deed without any compulsion or coercion of her said husband.”

The statute in force in reference to the acknowledgment of deeds, etc., when this deed was executed, was the act of February 19, 1819. That act required the officer taking the acknowledgment to examine the wife separate and apart from her husband, and to read or otherwise make known the full contents of such deed or conveyance to the wife, and that she should declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed deliver, the said deed or conveyance, without any compulsion or coercion of her husband, etc., but it did not require that the officer taking the acknowledgment should affirmatively show these facts in his certificate. It simply required that he should certify the acknowledgment, under his hand and seal, “upon the back of such conveyance.” Laws of 1819, p. 21, 22, sec. 11.

So far as affects the present question, the act of 1819 is a literal transcript of “a law establishing the recorder's office, and for other purposes,” of the Indiana territory, adopted September 17, 1807. See Purple's Real Estate Statutes, p. 462. And the Supreme Court of Indiana, in Stevens v. Doe, 6 Blackford, 475, under a like objection to that now urged, held that the statute did not require the officer taking the acknowledgment to show anything more than the declaration or acknowledgment of the wife that she had voluntarily executed the deed, observing: “It will be presumed, the contrary not appearing, that the officer did his duty as to the separate examination of the wife, and the making her acquainted with the contents of the deed. It is the acknowledgment only, not the circumstances under which it was made, that is required to be certified.” This case is referred to with approval, in argument, in Hughes et al. v. Lane, 11 Ill. 123. And in Russell v. Admrs. of Whiteside, 4 Scam. 7, the same act received a like construction by this court.

We think the certificate of acknowledgment sufficiently complies with the statute in force when it was made, and, consequently, that the deed was improperly excluded as evidence. The statute applicable in Garrett et al. v. Moss et al. 22 Ill. 364, and other cases cited by appellees' counsel on this point, was entirely different from the act of 1819 in its phraseology. It expressly required that the facts should be set forth in the certificate of acknowledgment. See Revised Laws of 1833, p. 134, § 13; Revised Laws of 1845, title “Conveyances,” § 17.

Appellees, on the hearing, gave in evidence an agreement in writing between appellant and one William E. Wheeler, dated March 5, 1872, whereby Wheeler undertakes, at his own cost and expense, to recover and reinvest appellant with the possession of the property in controversy, and appellant, in consideration thereof, undertakes, when that shall be done, to convey, by quitclaim, to Wheeler, two-thirds of his interest in the property, and the point is made that the decree of the court below may be sustained solely on the ground that Wheeler was not made a party to the bill. We do not coincide with this view. Wheeler had no present interest in the property to be affected by the decree. The agreement was champertous and void. Thompson et al. v. Reynolds, 73 Ill. 11. And it only purported to bind appellant to give him an interest in the property, upon the successful prosecution of this or like litigation for the recovery of the property. The main controversy, however, is in regard to the character and strength of the titles under which appellees claim, and to this we shall now, briefly, direct our attention.

The appellee Elizabeth Billings is widow and executrix and sole devisee of Henry W. Billings, deceased. The appellee Catharine M. Gronau was widow and is sole devisee of Henry Miller, deceased. The latter claims 112 acres of the tract of land in controversy, which is particularly described in the pleadings, by virtue of a deed from Henry W. Billings and Lewis B. Parsons to her former husband and devisor, Henry Miller, executed on the 11th day of January, 1864. This deed she claims as color of title, made in good faith, and relies upon actual possession of the premises and the payment of taxes for seven successive years thereunder, as a bar to the claim of appellant. That the deed from Billings and Parsons to Miller was made in good faith, is not contested; but it is objected that there was neither an actual continuous occupancy of the premises, nor the payment of taxes for seven successive years, in subordination to the claim under that deed. We do not think the evidence before us sustains either of these objections.

A party who enters into possession of land under a conveyance, though from a person having no title, is presumed to enter according to the description in the deed, and his occupancy of a part, claiming the whole, is construed as a possession of the entire tract. Davis v. Easley, 13 Ill. 192; Brooks v. Bruyn, 18 Id. 539; Prettyman v. Wilkey, 19 Id. 241; Barger v. Hobbs, 67 Id. 597; Austin et al. v. Rust, 73 Id. 491.

There is no proof of an actual adverse possession to Miller, after his purchase. Peter J. C. Marion testified that Miller had possession of the part he purchased from the time he purchased until the time of his death, and thinks his widow has had possession since. Daniel Collins testifies that the land was...