Hewitt v. Young B. Clark.
| Decision Date | 31 January 1879 |
| Parties | WILLIAM T. HEWITTv.YOUNG B. CLARK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Christian county; the Hon. H. M. VANDEVEER, Judge, presiding.
Mr. W. M. PROVINE, and Messrs. JOHN M. & JOHN MAYO PALMER, for the appellant.
Messrs. MCCASKILL & BRO. and Mr. JOHN B. JONES, for the appellee. Mr. JUSTICE DICKEY delivered the opinion of the Court:
This is an action of ejectment, by Hewitt against Clark. The land in controversy was the property of Rice. Hewitt derives title from Rice through a deed dated August 25, 1874, filed for record August 31, 1874; Clark claims title from Rice by a deed dated August 28, 1874, and filed for record on the same day.
It is claimed by appellee, that appellant's deed was never delivered; that it was procured from Rice by fraud and circumvention; and that appellee, at the time of his purchase, had no notice of appellant's title.
Appellee himself testifies, that, on the day he received his deed, and before it was made, he and Rice went to the recorder's office, and appellee inquired if Hewitt had filed for record a deed to him from Rice; that finding no such record, they went to the office of Mr. Taylor, a notary public, and appellee asked Taylor to show him the papers between Hewitt and Rice, and that he there saw what he took to be the deed from Rice to Hewitt. He further says, that Rice told him, before they went to the recorder's office, that deeds had been made between him and Hewitt; that he had made a deed for this land to Hewitt, and that the deeds were left in Taylor's office and that the trade had been broken off. This is conclusive as to notice to Clark of whatever Hewitt's rights under this deed may be. Having bought with information that the deed to Hewitt had been made, even if he supposed that the trade was broken off he took the risk when he acted on the faith of Rice's statement.
As to the charge of fraud, it is of such character as at most to render Rice's deed to Hewitt voidable. The deed could not be held void upon that ground. Until set aside by the action of the parties or a decree in chancery, this deed was adequate to pass the title to Hewitt.
But it is insisted, Hewitt's deed was not delivered by Rice. Goodrich testifies that he drew the deed in question, and a deed from Hewitt to Rice for another tract of land. This was done at the request of Rice and Hewitt. The parties then took these deeds away for the avowed purpose of having them acknowledged before Taylor, the notary; and that in about half an hour Hewitt returned with the deed in question in his possession, duly certified as acknowledged, and the same was then left with the witness by Hewitt.
Taylor, the notary, testifies, that when the deed in question was acknowledged by Rice, and after the...
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