Deininger v. Mcconnel

• Decision Date: 30 April 1866
• Citation: 1866 WL 4567,41 Ill. 227
• Parties: HERMAN DEININGER et al.v.MURRAY MCCONNEL.
• Court: Illinois Supreme Court

41 Ill. 227

1866 WL 4567 (Ill.)

HERMAN DEININGER et al.

v.MURRAY MCCONNEL.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bureau county; the Hon. MADISON E. HOLLISTER, Judge, presiding.

This was an action of ejectment, brought by Murray McConnel, in the Bureau Circuit Court, to the September Term, 1864, against Herman Deininger and Lewis Deininger, for the recovery of the S. E. 23, 15 N. R., 7 E., 4 prin. mer. The general issue was filed by defendants.

A trial was had by the court, a jury having been waived by consent of parties. Plaintiff, on the trial, read a patent from the United States government for the land in controversy; also a deed from William Daniels, the patentee, to Horace Jones, dated the 14th day of October, 1818, and acknowledged before a notary public on the same day, and subsequently before a commissioner of deeds in New York, on the 29th day of the same month. On the back of this deed was a certificate that it was recorded at Edwardsville, in this State, on the 19th day of January, 1819. He also read in evidence a certified copy of a deed from Horace Jones and wife to Paris Mason, dated December 30, 1822, acknowledged the same day, and recorded the 11th of October, 1823, at Pittsfield, in this State. A deed from Paris Mason and his wife to James P. Mason, dated the 2d of June, 1849, acknowledged on the 4th, and recorded on the 19th in Bureau county. Also a deed from James P. Mason to himself, dated the 25th of December, 1849, acknowledged on the 28th, and recorded on the 5th of January, 1850, in Bureau county. Defendants admitted possession.

Defendants, to show an outstanding title, offered a certified copy of a deed from Daniels, the patentee, to Parkus Willard, conveying an undivided half of the land, with certified copies of acknowledgment and of recording, which deed purported to bear date the 7th day of October, 1818, acknowledged on the 13th of March, 1819, before a commissioner of deeds in New York, and recorded on the 3d of January, 1820, at Edwardsville, in this State. As a foundation for the introduction of this copy, an affidavit was filed that the original deed was not, nor had it ever been, in the possession, power or control of defendants, or either of them, or their attorney or agent, and that it was not in their power to produce it on the trial.

Plaintiff objected to the reading of this copy in evidence, but the objection was overruled and the copy was admitted, and an exception was taken.

Upon this evidence the court found the issue for the plaintiff, and defendants entered their motion for a new trial, which was overruled by the court, and a judgment rendered on the finding, from which defendants appeal to this court, and ask a reversal of the judgment.

Mr. M. SHALLENBERGER, for the appellants.

Mr. MILO KENDALL and Mr. GEORGE O. IDE, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court: This was an action of ejectment, for the recovery of the N. E. quarter of section 23, T. 15, N. R. 7, E. 4 principal meridian, in Bureau county. Issue was joined, and a trial was had. Appellee traced title from the United States to himself. In his chain of title, was a deed executed by Daniels, the patentee, to Horace Jones, dated October 14, 1818. On this deed there were two certificates of acknowledgment made in the State of New York; one on the date of the deed, given by a notary public, and the other dated on the 29th of the same month, and given by a commissioner. This deed appears to have been recorded at Edwardsville, on the 19th day of January, 1819.

Appellants offered in evidence the copy of a deed, duly certified by the clerk, which purported to have been recorded in Bureau county, and appeared to have been executed by Daniels, the patentee, to one Parkus Willard. It purported to convey the undivided half of the land in controversy, and was dated on the seventh day of October, 1818, seven days before the other, introduced by appellee. It was also acknowledged in New York, before a commissioner, on the 13th of March, 1819, and recorded on the 3d of January, 1820, at Edwardsville. The offer to read this copy in evidence was based upon an affidavit, stating that the original deed was not, nor had “it ever been in the possession, power or control of the defendants, or either of them, or their attorney, or agent, and was not in their power, or of either of them, to produce the original on the trial.” Against the objection of appellee the copy was admitted in evidence. The court found for plaintiff below, and rendered a judgment against defendant, from which he appeals to this court.

It is urged, that this copy of a deed, read in evidence, showed an outstanding title for one-half of the land, and, as appellee had sued for the whole quarter, he was not entitled to recover either the whole or an undivided half. This question turns upon the effect which shall be given to the two deeds executed by Daniels, the patentee. They were executed in another State, and were attempted to be acknowledged before officers, who, at the time, had no authority to receive acknowledgments and grant certificates, under our statutes then in force. They were also recorded before the passage of the act of December 30, 1822. The second section of that act (Sess. Laws, 86) declares that all deeds and conveyances of land in this State, which had been executed and acknowledged in conformity with the laws of the State or territory in which they were executed, and which had been reduced to record, should be deemed...