Howard v. Illinois Trust & Sav. Bank

• Citation: 59 N.E. 1106,189 Ill. 568
• Court: Supreme Court of Illinois
• Decision Date: 20 February 1901
• Parties: HOWARD et al. v. ILLINOIS TRUST & SAVINGS BANK et al.

189 Ill. 568

59 N.E. 1106

HOWARD et al.

v.ILLINOIS TRUST & SAVINGS BANK et al.¹

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from superior court, Cook county; F. Q. Ball, Judge.

Action by Montville W. Howard and others against the Illinois Trust & Savings Bank and others. From a judgment for defendants, plaintiffs appeal. Reversed.

T. A. Moran, for appellants.

Tenney, McConnell, Coffeen & Harding and Bancroft & Adams, for appellees.

CARTWRIGHT, J.

Appellants brought this suit in ejectment in the superior court of Cook county against appellees to recover 37 1/2 acres of land in that county, appellant Howard claiming an undivided five-ninths and appellant Lowenhaupt an undivided four-ninths thereof. The plea was the general issue, and upon a trial there was a verdict of not guilty, and that the right of possession in fee simple was in the appellees. Judgment for costs was entered against appellants.

Both parties claimed title from John McCaffery, deceased; the plaintiffs through a conveyance from him to the plaintiff Howard, and the defendants as executor, trustee, and devisees under his will. Plaintiffs, to maintain the issues on their part, offered in evidence a deed of lands, including the tract in question, from John McCaffery to plaintiff Howard in consideration of one dollar, love and affection, and valuable services rendered to the grantor. In the deed McCaffery retained a life estate in the premises, and it was dated December 19, 1893, acknowledged December 20, 1893, and recorded November 18, 1898. The lands described in the deed constituted a farm of about 115 acres, consisting of a fractional 80 and a fractional 40, and this action is for the fractional 40. John McCaffery made his will August 29, 1892, and executed a codicil thereto January 6, 1894. He died June 1, 1894, and the will and codicil were admitted to probate. Plaintiffs also proved by the notary who took the acknowledgment that McCaffery acknowledged the deed before him at the date of the certificate, and delivered it to Howard at that time, and there was no evidence to the contrary; but the notary did not know the contents of the deed. Deeds were introduced in evidence from Howard and wife to plaintiff Lowenhaupt conveying an undivided four-ninths of the premises. The genuineness of the deed from McCaffery to Howard was the sole issue in the case. The defendants did not deny the signature of McCaffery or the acknowledgment, but claimed that the entire deed above McCaffery's signature had been forged by erasing all the writing that was there when McCaffery executed it, and then writing in all that is now in the deed above his signature. Evidence was introduced as to the nature of the consideration for the deed, but in the action of ejectment that question was not material, except so far as it had a bearing, if any, on the genuineness of the deed, which was the single question of fact. The deed acknowledged good and valuable considerations, and, if it was genuine and operative to convey title, the nature or value of the consideration was not a subject of inquiry. On that subject plaintiffs, in making out their case, offered evidence tending to prove the following facts:

Mrs. Rose Howard, the wife of plaintiff Howard, before her marriage was Rose McCahill. She was the niece of Ann McKeon, with whom McCaffery lived, but to whom he was not married; and Rose lived in the family. Rose had a son by McCaffery, named John C. McCaffery. John McCaffery took Rose to the private hospital of Dr. B. A. Colwell, in Chicago, where the child was born February 17, 1884. Rose returned to the McCaffery home to live, and the child was put under the care of nurses until about 2 1/2 years old, when he was brought to the McCaffery home, and taught to call McCaffery his grandfather, and the story was told that he was the son of a friend,-a railroad man. Plaintiff Howard afterwards married Rose in July, 1888, and they still lived in the family, but Howard was ignorant of the boy's parentage until the latter part of 1893. McCaffery then wanted to adopt the boy, and was seeking for the consent of the mother, and thoughtlessly appealed to Howard to get her to consent. In that way the truth became known to Howard, and he was angry, and proposed to take his wife and leave. McCaffery implored them to remain, and then made the deed. Dr. Colwell was dead at the time of the trial, and his widow was plaintiff's witness. She had been in the habit of visiting McCaffery frequently after the boy was born, and getting money or loans from him. The deed was made about six months before McCaffery's death, and was not recorded for 5 years, or 4 1/2 years after his death; and in the meantime Howard had not made any claim to the land. There was evidence tending to prove that he had the deed in McCaffery's lifetime, and that he supposed it was destroyed shortly after McCaffery's death. Mrs. Colwell testified that McCaffery told her he had made the deed, and she said Mrs. Howard brought it to her three or four weeks after McCaffery's death, and she had it until just before it was recorded. On cross-examination she identified a return of a birth made by her husband to the county clerk as that of this boy. The defendants afterwards offered the return in evidence, and it was admitted against the objection of plaintiffs. It gave the name of the child as John; the date of the birth, February 17, 1884; the name of the mother, Harriet Beck; the name of the father unknown; the residence of the mother, Maywood, Ill.; her nationality, Canadian; and the number of the child, the second.

It is argued that this return of Dr. Colwell was legitimate evidence to prove that this was Rose McCahill's second child, and that this fact has some bearing on an explanation which was offered why the deed was not recorded,-at least after the death of John McCaffery. The supposed evidence which, it is said, the return would tend to discredit, consists mainly of a statement made to the jury by plaintiffs' counsel in stating the case, and what he expected to prove, which has been copied into the record. Plaintiffs offered no evidence tending to prove the fact stated and referred to by counsel. If an alleged fact stated by counsel is not proved by the evidence, it is to be disregarded. Such statements do not have the weight of testimony, and the certificate was not admisible to disprove what counsel said to the jury. Counsel stated what he said he expected to prove, but did not prove it or attempt to.

It is also urged that the return would tend to disprove an explanation of plaintiffs' counsel, made before the suit was begun, as to why the deed had not been put on record sooner. Defendants called witnesses, who testified to explanations given by an attorney representing plaintiffs, which, he said, he hoped would induce defendants to give up the land without a lawsuit. Among other statements, the attorney had said that Mrs. Howard dreaded the scandal and disgrace which would follow. Having proven what the attorney said in the endeavor to get the land peaceably, defendants made it the subject of attack of this return, which said that the child was the second, from which alleged fact they argued that Mrs. Howard could not have feared scandal and disgrace. Registers of births, deaths, and marriages, made pursuant to the statute, and within its requirements, are admissible in evidence to prove the fact recorded. On account of the credit due to the officials empowered to record the facts in the public interest, such registers are evidence of the facts without the usual tests of truth. 1 Greenl. Ev. § 484. In this case it had been proved, and it was conceded, that Dr. Colwell kept a place for private cases, as they were called, where it was desired to suppress the truth, and to prevent anybody from getting information of the actual facts. He solicited, by circulars among physicians, the business of parties who had need of falsehood and deceit and the active co-operation of a doctor to that end. The return was made to satisfy the law, and his universal practice was to send in a false return. The return in this case, so far as it purported to state any known fact except the date of birth, was false. The name of the mother was not Harriet Beck, her residence was not at Maywood, she was not a Canadian, and the name of the father was not unknown. The only evidence that this certificate related to John C. McCaffery was parol evidence that he was the only male child born on that day at that place; and all its other statements, if proof of anything, showed that it did not refer to him or his mother. The certificate had been impeached by both parties, and could not be regarded as a genuine certificate or legitimate evidence of the fact that John C. McCaffery was his mother's second child. That was clearly the purpose for which it was introduced; and counsel, after contending that it was legitimate evidence of that fact, also insist that it was proper evidence to show the character of the witness Mrs. Colwell by showing that she assisted and connived at carefully prepared falsehoods, and was engaged in the business of making false returns. Of course, it was not introduced for two opposite and conflicting purposes, or presented to the jury in that way. If it was true, as counsel contend, that the practice of falsehood with reference to matters in violation of public morals and public law would tend to disgrace and discredit Mrs. Colwell as a witness, she had already testified fully to that fact. She said she had been engaged in that business, and in making false returns which were essential to the success of the business, and the fact was not in dispute. Furthermore, the fact which the return was introduced to prove could not be proved in that way if the certificate had not been impeached. The statute provides that physicians shall report, within 30 days from the date of their occurrence,all births which come...