Harrell v. Enter. Sav. Bank
| Decision Date | 18 December 1899 |
| Citation | 183 Ill. 538,56 N.E. 63 |
| Parties | HARRELL v. ENTERPRISE SAV. BANK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Alexander county.
Ejectment by the Enterprise Savings Bank against Francis M. Harrell. From a judgment in plaintiff's favor, defendant appeals. Reversed.Lansden & Leek, for appellant.
Green & Gilbert, for appellee.
Appellant commenced an action of ejectment to recover lots 6, 9, 10, and 11 in block 40 in the city of Cairo. Appellee filed a plea of the general issue, and on trial the finding and judgment were entered for the defendant, and the plaintiff prosecutes this appeal. At the same time an ejectment suit was pending and heard as to lots 7 and 8 in the same block, which were held under the same character of paper title; and in the latter case the finding and judgment were entered for the plaintiff, and a new trial taken under the statute. The appellant asked the court to hold that the trustees sold and conveyed the lots to John Ivers on or about May 7, 1855; and the court struck out the word ‘conveyed,’ and held the proposition. The court was further asked to hold that the evidence further showed that the deed to Ivers had been lost, and appellant was authorized to introduce secondary evidence of its contents, which was refused. To the modification and refusal of these propositions, appellant excepted. The court held the tax deed was null and void, for the reason that the notice of the expiration of the time of redemption and the affidavit of compliance are each insufficient, to which appellee excepted. Numerous other errors and cross errors are assigned, to which reference will be made in the discussion of the facts appearing on the record.
PHILLIPS, J. (after stating the facts).
Where there is proof of prior possession by the grantor, or others under whom he claims, and to whose title he is privy, and he or those under whom he holds claim to be the owners of the fee, the law is well settled that in an action of ejectment such proof of prior possession is prima facie evidence of ownership and seisin sufficient to authorize a recovery, unless the defendant shows a better title. Barger v. Hobbs, 67 Ill. 592;Benefield v. Albert, 132 Ill. 665, 24 N. E. 634. The evidence shows that the Cairo City & Canal Company on the 13th day of June, 1846, duly conveyed fractional section 25, in township 17 S., range 1 W. of the third P. M., to Thomas S. Taylor, of the city of Philadelphia, and Charles Davis, of the city of New York, and to the survivor of them, and to the heirs and assigns of such survivor, forever, with other lands in the deed described. The said Taylor and Davis on the 29th day of September, 1846, executed a declaration in trust, stating that the beneficial interest in the lands in the deed mentioned should be divided into 35,000 shares, for which certificates were to be issued by them, declaring that they, and the survivor of them, and their successors, should have the management and control of the real estate and the proceeds thereof; that they shall pay the taxes thereon when in funds, and the expenses incident to the creation and execution of the said trust declared by them; that they should make such contracts, and such purchases and sales of real and personal estate, as they deem necessary and expedient to promote the interest of the shareholders. The real estate is declared to be the ‘Cairo city property,’ and Taylor and Davis are designated ‘trustees of the Cairo city property.’ The said Taylor and Davis in 1853 caused a portion of the land to be surveyed into blocks, lots, streets, avenues, etc., by the county surveyor of Alexander county; and said survey and plat were duly certified to by said county surveyor, and acknowledged by said Taylor and Davis, and the same filed for record in the office of the recorder of deeds of Alexander county. The lots in controversy are a part of the lots so conveyed by the Cairo City & Canal Company to the said Taylor and Davis, and platted as above. When the land above platted was conveyed to Taylor and Davis, it had a forest growth thereon, which was by them cleared up. The evidence discloses that they were in possession of the land so conveyed and so platted. Books were kept by them, showing what lots were sold, the payments made thereon, and to whom sold; and from these books it appears that on May 7, 1855, for the consideration of $1,500, lots 6, 7, 8, 9, 10, and 11 of block 40 were conveyed to John Ivers, Jr., and the books further show that the same was paid in full October 16, 1858. The said John Ivers entered into possession of the said lots, had certain improvements made on two or more of them, and paid taxes thereon, in person or through his agent, until his death, which occurred January 12, 1885. No original deed was produced, no witness was called who ever saw such original deed, and no record of such deed is found to be in existence. The evidence discloses that certain records were destroyed by the burning of the court house of Alexander county between the years of 1852 and 1860, and it is further shown that deeds made about the time of the alleged sale of the lots to John Ivers, Jr., were recorded in such records so destroyed. One S. S. Taylor was for many years the agent of the said Taylor and Davis, who platted said property, and also acted as the agent of John Ivers, Jr., in and about keeping up repairs and the payment of taxes on said lots where they were improved. The fact that the agent of the trustees so acted as the agent of John Ivers furnishes proof of his recognition of the ownership being in the said Ivers; and that fact, with the recitals in the books of the trustees that the said lots were conveyed to John Ivers, together with a copy of the deeds as then used by the said trustees, are the chief evidence on which the plaintiff relies, as showing the execution and delivery of a deed conveying the lots in question to the said Ivers, together with the evidence shown by the books, that he had paid in full for them.
The evidence of the plaintiff shows that the deed conveying the property from the trustees to John Ivers had never been in his possession, and that it was not in his power to produce the same; that he had not disposed of the same for the purpose of introducing secondary evidence of its contents. It appears from the evidence of the administrator and of the devisee under his will that the deed had never been in their possession, and that they had never seen the same, and had made diligent search among all the papers of the deceased, and were unable to find it. This is sufficient to authorize secondary evidence of the contents of such deed. Gillespie v. Gillespie, 159 Ill. 84, 42 N. E. 305. It being further shown by the evidence that two witnesses who were familiar with the public records of Alexander county, and who testified they had made careful search of such records for the purpose of trying to find said deed, and that the same was not of record in said county, and the testimony further showing that the record books in which said deed would have probably been recorded had been destroyed by fire, it was competent for appellant to prove the execution and contents of said deed by the best evidence of which the nature of the case was susceptible. Bestor v. Powell, 2 Gilman, 119;Dugger v. Oglesby, 99 Ill. 405;Tucker v. Shaw, 158 Ill. 326, 41 N. E. 914. Appellant sought to make that proof by offering in evidence the letterpress copy of the receipt found in letterbook 4 of Taylor and Davis, trustees of the Cairo city property, dated May 7, 1855, executed by said Taylor and Davis, by S. Staats Taylor, their agent and attorney in fact, to John Ivers, Jr., acknowledging the receipt from the latter of the sum of $375 on account of lots 6, 7, 8, 9, 10, and 11 in block 40, city of Cairo, and stating that said lots had been sold to the said John Ivers for $1,500, and that he was to execute a bond and mortgage for the balance of the purchase money of said lots when the deed for the same was delivered to him, which was to be done as soon as the same could be obtained from Philadelphia in due course of mail. It was also shown by ‘No. 1, Sales Ledger,’ of said Taylor and Davis, trustees (the itemized account of John Ivers with reference to the purchase and payment for said lots), that the sale of the same was No. 125; that the purchase price thereof was $1,500; that the date of sale of said lots was May 7, 1855; that the payment of the unpaid purchase money was secured by mortgage, and the last payment due was paid in full October 16, 1858. It was shown by another book of said trustees, entitled, ‘Plats, Vol. 1, Cairo City Property,’ that said lots were conveyed to John Ivers May 7, 1855; that said sale was No. 125; and that said lots were paid for in full October 15, 1858. All was competent evidence tending to support plaintiff's claim of the execution and delivery of a deed by the trustees to John Ivers. Such books and entries are written declarations made by the trustees in the regular course of their business, and against their interest. Railway Co. v. Ingersoll, 65 Ill. 399. In seeking to prove the contents of a lost deed, it is sufficient to prove by whom and to whom the deed was executed, about what time it was so executed, and the consideration paid therefor, and the property conveyed. Perry v. Burton, 111 Ill. 138. The term ‘conveyed,’ as used on the books of the trustees, having reference to a transaction in regard to real estate sold, which was referred to in the receipt for the first payment, necessarily authorizes the construction of the term ‘conveyed,’ as used in the books of the trustees, to mean the execution and delivery of a deed. The fact of the trustees taking a mortgage thereafter to secure the payment of the purchasemoney sustains this...
To continue reading
Request your trial