Doe v. Johnson

• Decision Date: 31 December 1840
• Citation: 2 Scam. 522,1840 WL 2996,3 Ill. 522
• Parties: JOHN DOE, ex dem. MURRAY MCCONNELv.ISAAC JOHNSON.
• Court: Illinois Supreme Court

2 Scam. 522

3 Ill. 522

1840 WL 2996 (Ill.)

JOHN DOE, ex dem. MURRAY MCCONNEL

v.ISAAC JOHNSON.

Supreme Court of Illinois.

December Term, 1840.

OPINION TEXT STARTS HERE

THIS was an action of ejectment instituted in the Morgan circuit court, to recover the possession of the west half of the southwest quarter of section number 32, in township 14, N., R. 12 west, in the county of Morgan.

The declaration as originally filed, contained a demise from McConnel only. At the October term, 1838, the Hon. Jesse B. Thomas presiding, the plaintiff obtained leave to file an amended declaration, making additional demises, and from other and different persons than the lessor named in the original declaration. He then amended his declaration by filing a count laying a demise from Henry H. Haynie, and a count laying a demise from Seth Pratt. Thereupon the defendant filed the following affidavit:

“The said Isaac Johnson being sworn, states that the above named Seth Pratt left the state of Illinois, several years since, with the intention of removing from the state; that said Pratt has not since returned to the state, as he believes. He further states, that said Pratt, as he is informed and believes, does not reside in the state of Illinois. He further states, that the above named Henry H. Haynie conveyed the land in controversy in this suit, on the 8th day of April, 1830, to Samuel Stanfield; that said Stanfield subsequently conveyed the said land to Nicholas Selby, who subsequently conveyed the same to James Tucker, who, as this defendant believes, subsequently conveyed the same to Seth Pratt; that said Seth Pratt conveyed the land to this defendant, on the 16th day of February, 1833, and after this conveyance was made, the above lessor, Murray McConnel, purchased the land upon an execution against said Seth Pratt, and claims the land under and by virtue of that purchase, as defendant believes. This defendant further states, that he does not believe that said Haynie or Pratt ever authorized their names to be used as lessors in this cause. This defendant is satisfied that neither Haynie or Pratt have any claim to said land, or any desire or intention to prosecute suits for the same.

ISAAC JOHNSON.”

“Subscribed and sworn to before me, this 31st day of October, 1838.

WM. GORDAN, J. P.”

The defendant then pleaded the general issue, and upon motion of the plaintiff, and affidavit filed, the cause was continued to the next term of the court.

At the June term, 1839, the Hon. Samuel H. Treat presiding, the following affidavit was filed, and a motion was made for a continuance which was overruled by the court; to which an exception was taken: ¹

“Personally came M. McConnel, the lessor of the plaintiff, and makes oath that the defendant Johnson, as he is informed and believes, is in possession of the land. The said plaintiff claims said land under a deed from the sheriff of Morgan county, which conveys to the lessor of the plaintiff, all the right and title of one Seth Pratt, who, it is claimed, was the owner of said land. Said defendant also claims under a deed from the same Pratt. Said lessor further states, that Daniel Roberts is a witness in this cause, by which he expects to prove, that the conveyance by the said Pratt to the said Johnson, was made without any consideration, and for fraudulent purposes, and to defraud creditors, and for the express purpose of defrauding the creditor upon whose judgment the execution issued, upon which the land was sold, for which the deed under which the plaintiff claims was made. Said Roberts had been subpœnaed, and he resided at the time he was subpœnaed in this cause, in the county of Scott; but this lessor is now informed that said witness has since removed to Greene county. Said subpœna has not been returned from Scott county; but the said witness has acknowledged to the said lessor, that said subpœna has been properly served upon him, and that he would attend this court; but the said witness is not here in attendance upon this court; and therefore the said lessor prays that said cause may be continued to the next term of said court.

M. MCCONNEL.”

“Sworn to and subscribed, this 26th day of June, 1839.

DENNIS ROCKWELL, Clerk.”

The cause was then submitted to a jury, who returned a verdict for the defendant.

From the bill of exceptions it appears, that “upon the trial of this cause, the plaintiff produced, as evidence, and relied upon, the following deeds of conveyance, as showing title in the lessor: 1st. A register's certificate from the register of the land office at Springfield, to Henry Haynie; 2d. A deed from Haynie to Stanfield; 3d. A deed from Stanfield to Selby; 4th. A deed from Selby to Tucker; 5th. A deed from Tucker to Pratt; 6th. A deed from the sheriff of the county of Morgan, conveying all the rights of the said Pratt to the lessor of the plaintiff, which deed of the sheriff bore date the 31st October, 1836, and accompanying which was a transcript of a judgment properly certified to have been filed in the clerk's office of Morgan county, and made a judgment of the circuit court of said county, according to the statute, on the 16th of April, 1835, under which judgment the execution upon which the land was sold, and out of which grew the sheriff's deed, was issued. The possession of the defendant was proved, at the service of the declaration. The possession and occupancy of said Pratt was proven to have existed before the date of said sale under which the sheriff's deed was made. Whereupon the defendants objected to the admissibility of the deed from Selby to Tucker, because of the insufficiency of the certificate of acknowledgment which is as follows:

‘State of Illinois, Morgan county.

Personally appeared before me, Presley N. Haycraft, a justice of the peace within and for said county of Morgan, and state aforesaid, Nicholas Selby, and Margaret his wife, who are personally known to me, and acknowledged the foregoing indenture to be his voluntary act for the purposes within mentioned. And Margaret Selby, wife of the said Nicholas, being by me examined separate and apart from her said husband, declared that she freely and voluntarily relinquished her right of dower in and to the same, without the persuasion, fear, threats, coercion of her said husband, and that she desired the same to be admitted to record. Given under my hand and seal, this twenty-seventh day of December, eighteen hundred and thirty-one.

PRESLEY N. HAYCRAFT, J. P. [SEAL.]'

Which objection was sustained, and the deed excluded. The plaintiff excepted to this decision of the court.

The defendant then offered in evidence a deed from Seth Pratt to him, of the premises in question, to which was annexed the following certificates, to wit:

‘State of Illinois, Morgan county, ss.

Personally appeared before me, the subscriber, and acting justice of the peace for said county, the within named Seth Pratt, who is personally known to me to be the identical person who subscribed the within deed of conveyance, and acknowledged the same to be his voluntary act, for the purpose therein expressed. Given under my hand and seal, this 16th day of February, 1834.

IRA ROWAN, J. P. [SEAL.]'

‘State of Illinois, Morgan county, ss.

I, John Hanback, a justice of the peace within and for said county, do hereby certify, that Levi Harlin of said county, who is a responsible witness, this day appeared before me, and made oath in due form of law, that he is personally acquainted with William Roberts, whose name appears subscribed as a witness to the annexed deed of conveyance, from Seth Pratt to Isaac Johnson; that he has often seen the said William Roberts write and sign his name, and is acquainted with this signature, and his handwriting, and he believes that said Roberts subscribed his name with his own hand, as a witness to said deed; and the said Harlin further states, that he is personally acquainted with Seth Pratt, whose name is subscribed to said deed, as grantor; he is also well acquainted with the handwriting of said Pratt, he has frequently seen said Pratt write and sign his name; and by seeing him...