Graham v. Anderson

Decision Date31 January 1867
Citation1867 WL 4969,42 Ill. 514,92 Am.Dec. 89
PartiesDAVID J. GRAHAMv.EDGAR ANDERSON et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Schuyler county; the Hon. C. L. HIGBEE, Judge, presiding.

The facts sufficiently appear in the opinion of the court.

Mr. J. S. BAILEY, for the appellant.

Messrs. PALMER & HAY, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of ejectment, brought in the Schuyler Circuit Court, to the May Term, 1863, by Edgar Anderson and others, heirs at law of James L. Anderson, deceased, against David J. Graham, to recover the possession of a certain tract of land in that county, in and to which defendant claimed a homestead right.

The plaintiffs deduced title through their father, James L. Anderson, who purchased the same at a sale under a trust-deed made by Graham and wife to John C. Bagby, to secure certain judgments against Graham.

The controversy arises upon the execution and acknowledgment of this deed, it being contended by Graham that the premises were the homestead of himself and family, and that his wife had not released her right to it as a homestead. This trust-deed was executed on the 24th of March, 1860, and the certificate of acknowledgment of the justice of the peace purports to release homestead and dower in the usual form, as the statute requires.

The first objection taken to the acknowledgment is, that a venue is wanting, the county being omitted in the caption thereof.

This objection was obviated, if a valid one, by proof that the justice of the peace who took the acknowledgment was a justice of the peace of Schuyler county at the time, and that he took it as such justice.

But the objection was not valid, as this court, in the case of Irving v. Brownell, 11 Ill. 402, where the same point was made, held, that, without this proof, the certificate was sufficient, as the court, when sitting in Pike county, would officially take notice who were the justices of the county without any proof thereof, citing the case of Shattuck v. The People, 4 Scam. 481. In that case the court said, the Circuit Court, as a matter of convenience, takes cognizance of the fact who are justices of the peace for the county in which it is held, and proof of the official character of these officers is never required unless that particular question is directly in issue. See also Livingston v. Kettelle, 1 Gilm. 116.

Another objection was made, that there was no proof that the indebtedness specified in the deed of trust was unpaid at the date of the sale.

This objection was not made in the Circuit Court, where it might have been obviated when the deed was introduced as evidence. It is too late now to make it. Selby v. Hutchinson, 4 Gilm. 319; Norton v. Dow, 5 Id. 459; Morris v. Trustees, 15 Ill. 266; Harmon v. Thornton, 2 Scam. 351; President and Trustees v. Holland, 19 Ill. 271; Gillespie v. Smith, 29 Id. 473; Sargeant v. Kellogg, 5 Gilm. 273; Swift v. Whitncy, 20 Ill. 144; Montain v. Bailey, 27 Id. 419.

Had this objection been made in the Circuit Court, it could not have availed, as, by the trust-deed, the legal estate was vested in the trustee, and he had conveyed it to the plaintiff's ancestor,--whether rightfully or wrongfully, was not a subject of inquiry in the ejectment. If the trustee sold contrary to the conditions of the deed, the remedy was in equity. Reese v. Allen, 5 Gilm. 236.

The trust-deed recited the indebtedness by judgment, and the presumption would be that the indebtedness was unpaid, only to be rebutted by affirmative proof of its payment before the sale.

The remaining point is important. The defendant claims, that, at the time of the execution of the trust-deed to Bagby, the premises conveyed by it were the homestead of the grantors, and the wife did not release her homestead right.

The proof that it was the homestead at the time the deed was executed, is not very clear.

Adam Sapp, a witness for the defendant, testified that the defendant was a married man, having a wife and children living with him upon the land described in the declaration. This witness speaks of the time then, which was the time of the trial; he does not say the defendant, with his family, was living on the land at the time of the execution of the deed.

Another witness for the defendant, his daughter, Mrs. Isabel J. Burnham, in answer to the interrogatory, “state, if you know, what land the deed was about,” said, “it was about the homestead land and farm.”

This witness was present at the time the...

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