Gage v. Schroder

• Decision Date: 30 September 1874
• Citation: 73 Ill. 44,1874 WL 8920
• Parties: ALONZO GAGE et al.v.JOHN SCHRODER.
• Court: Illinois Supreme Court

73 Ill. 44

1874 WL 8920 (Ill.)

ALONZO GAGE et al.

v.JOHN SCHRODER.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Lake county; the Hon. THEODORE D. MURPHY, Judge, presiding.

This was an action of ejectment, by Alonzo Gage, Allen Mulkins and Samantha J. Mulkins, against John Schroder, for the recovery of two tracts of land.

The plaintiffs claimed title as children and only heirs of Stephen I. Gage, deceased. The defendant relied upon a deed executed to his grantor by Leonard Loomis, administrator of Stephen I. Gage, deceased, made under a decree of the county court of Lake county in May, 1863, for the sale of the land to pay debts. On the trial, after proof of the loss of the original petition and certain other parts of the record, the court allowed parol proof of their contents, to which the plaintiffs excepted. The judgment was for the defendant.

Messrs. MCDAID, WILSON & PICHER, for the appellants.

Messrs. RUNYAN, AVERY & COMSTOCK, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is first objected that the court below erred in receiving parol evidence of the contents of the petition, printer's certificate, and decree of court ordering a sale of the premises in controversy, which were proved to have been lost. The case of Barnett v. Wolf, 70 Ill. 76, is referred to in support of the proposition. There is scarcely any analogy between that and this case. In that, the record remained full and unimpaired, whilst in this case the record has been lost or destroyed. In that case, the effort was to prove that the notice was sufficient, although as it appeared on file it was insufficient. There was in that case no question as to the proof of the contents of a lost or destroyed record. The questions are different, and involve different rules. In the one case there was a notice on file, but insufficient, and the effort was made, outside and independent of the record, to prove a sufficient service by publication--an effort to aid the record by parol, which was held to be inadmissible.

In this case, however, the proof was not designed to aid or explain a record, but to prove what the record, as it existed, contained.

A record, when lost or destroyed, may be proved, like any other writing, by secondary evidence, and, its loss having been shown, no reason is perceived why witnesses, who know its contents, may not be called to prove them. If this was not permitted in cases of this character, where a complete record is not made by the clerk, the title acquired by the purchaser would be liable to be defeated by loss or destruction of the certificate of publication or the petition. It may be that there is some hazard in permitting titles to depend on the frail memory of witnesses as to the contents of records, but the same objection applies to all verbal evidence of the contents of written instruments. If deemed too uncertain, or liable to abuse, the General Assembly can readily remedy the evil by restoring the statute requiring the clerk, in such cases, to make a full record of all the proceedings in the case, which could be done with slight cost, and would give stability to such titles.

The evidence that there was a proper notice published and filed in this case was ample, being proved by the county clerk and Cook, who had both seen the notice and certificate on file. They also testified, in a satisfactory manner, to having seen a petition on file for the sale of this land by the executor of Gage. We would hardly expect more satisfactory evidence of...