Hulick v. Scovil

• Decision Date: 31 December 1847
• Citation: 1847 WL 3856,4 Gilman 159,9 Ill. 159
• Parties: MATTHIAS HULICKv.IRA SCOVIL.
• Court: Illinois Supreme Court

4 Gilman 159

9 Ill. 159

1847 WL 3856 (Ill.)

MATTHIAS HULICK

v.IRA SCOVIL.

Supreme Court of Illinois.

December Term, 1847.

EJECTMENT, originally brought by the plaintiff in error against the defendant in error in the Fulton circuit court, but subsequently removed into the Peoria circuit court, where it was heard before the Hon. JOHN D. CATON, without the intervention of a jury, by the agreement of the parties. The court found the issue for the defendant and rendered judgment accordingly.

The evidence is stated in the opinion of the court.

E. N. POWELL, for the plaintiff in error.

1. Delivery is essential to the validity of a deed. Yet a delivery in some instances may be to a third person for the use and benefit of the grantee. Church v. Gilman, 15 Wend. 656; Ferguson v. Miles, 3 Gilm. 358. But when the delivery is made to a third person, it must appear that it was for the use of the grantee.

But a deed procured by a mere volunteer, without authority of the grantee, is void. Ferguson v. Miles, Ibid. 358.

In this case, it clearly appears from the testimony that there was no delivery to the grantee or acceptance by him, or to a third person for his use and benefit, and there can be no delivery without an acceptance. Jackson v. Phipps, 12 Johns. 418; Herbert v. Herbert, Bre. 282; Church v. Gilman, 15 Wend. 656; Jackson v. Richards, 6 Cowen, 617; Bryan v. Wash, 2 Gilm. 557.

2. But it will be contended on the other side that the auditor's deed is a patent, and therefore it needs no formal delivery, but, so soon as it is executed, that it at once becomes valid without delivery to or acceptance by the grantee; and the case of Graves v. Bruen, 1 Gilm. 167, will be cited in support of this position.

I can see nothing in that case to call for such a decision, and am, therefore, led to conclude that it was nothing but a “ judicial flourish.” The recording of a deed adds nothing to its validity; the recording of a deed is merely to give notice.

The case in 15 Wend. 656 was a deed emanating directly from the state of Connecticut, and the supreme court of New York placed the deed precisely upon the same grounds as a deed from an individual.

Again, the supreme court of the United States, in the case of Boardman v. The Lessees of Read, 6 Peters, 342, says “Titles acquired under sales for taxes depend upon different principles, and these are the titles to which some of the authorities cited in the argument refer. Where an individual claims land under a tax sale, he must show that the substantial requisites of the law have been observed; but this is never necessary when the claim rests on a patent from the commonwealth.”

Now it seems to me, that if the auditor's deed is to be assimilated to a patent, that then it inevitably follows that the deed of the sheriff for lands sold for taxes, or upon an execution at law, would be a patent. The auditor is the officer appointed by the state to execute the deed; it is called a deed in the act authorizing him to make it; the sheriff is also the officer appointed by the same authority to execute a deed, and his deed is as much a patent as the deed of the auditor. It is true there may be a little more dignity in the office of auditor in consequence of his proximity to the fountain of power, still his deed is under his own private seal, and not like patents, issuing direct from the state, under the great seal.

3. I am also advised that the defendant's counsel will rely upon the case of Doe, etc., v. Knight, 12 Eng. Com. Law R. 361.

By a careful examination of that case, it will be found that it does not run counter to the authorities above cited. In that case the court decided that the deed had been sufficiently delivered, because the grantor had parted with the custody of the deed, and had delivered it to a third person for the use and benefit of the grantee.

Delivery of some kind is deemed necessary, by all the authorities. Now compare the facts in the case above cited with the case now before the court. Here by the bill of exceptions it appears that no delivery to the grantee, or to any person for his use, was ever made. The fact of authority in Elliott to procure the deed is expressly negatived, and there can be no presumption of authority, or that the deed was for the benefit of the grantee. If anything is to be presumed, it is that Wolcott had abandoned his purchase by never taking out his deed, or that he had received his redemption money from the owner of the land.

W. ELLIOTT, Jr. for the defendant in error, filed the following brief:

It is contended by plaintiff that the deed of the auditor was erroneously admitted in evidence in the circuit court, because it was not delivered to the grantee in propria persona. An auditor's deed is a patent for land from the state. Patents or deeds from the United States, or a state, are sufficiently delivered when signed by the proper officer and filed in his office, and vest the title of the land in the patentee without further delivery. Graves v. Bruen, 1 Gilm, 167; Rhinehart v. Schuyler, 2 do. 473.

But admitting that patents are to be subject to the same rules as other deeds, this deed was delivered. Wolcott had prior to its issuance, purchased the land conveyed of the state for taxes; the auditor, in accordance with his duty, had executed a deed to the purchaser, and delivered the same to an attorney of this court for the benefit of the grantee, whose acceptance of the same in behalf of the grantee was sufficient to vest the title to the land in the grantee. A delivery may be made to a stranger for and in behalf of the grantee and to his use, although he may be entirely ignorant of the conveyance. Bryan v. Wash, 2 Gilm. 557; Hatch v. Hatch, 9 Mass. 307.

O. H. BROWNING & N. BUSHNELL, for the defendant in error' argued:

I. The statement of the defendant that he claimed title to the premises in controversy, under the grantee in the tax deed were properly received in evidence. The declaration of a person in possession of land which qualify or give character to such possession, are always admissible in evidence as a part of the res gestæ. 1 Greenl. Ev. sec. 109.

II. The plaintiff in ejectment must recover on the strength of his own title. It is sufficient for the defendant to show title out of the plaintiff, whether in himself or in a third person. Adams' Eject. 275; Bloom v. Burdick, 1 Hill's (N. Y.) R. 130. The only exception is, where it appears affirmatively that the defendant is a mere trespasser or intruder without color or claim of title; in that case he can not set up an outstanding title in a third person. Jackson v. Harder, 4 Johns. 202; Same v. Rowland, 6 Wend. 671; Same v. Moore, 16 Johns. 197; Same v. Schamber, 7 Cowen, 187, 643; Same v. Stambury, 9 Wend. 201. In the present case, the defendant is in possession, claiming title. There is no evidence to show that this claim is fraudulent or colorable; nothing to explain the origin or to qualify the character of this possession. The possession alone, unexplained, is prima facie evidence of title, sufficient to protect the defendant against the whole world except the rightful owner.

III. There was a sufficient delivery and acceptance of the tax deed. A deed may be delivered by words or acts, or by words alone. It may be delivered to the grantee, or to his agent, or to a stranger to his use. If delivered to a stranger, whether or not the grantee is informed of the execution of the deed and formally accepts it, is immaterial. If thus delivered by the grantor to a stranger for the purpose of conveying title and for the use of the grantee, this is a valid delivery; and if the grant is beneficial to the grantee, his acceptance will be presumed. The exercise of volition on his part is not required; this acceptance is a conclusion of law, antecedent to all information on the subject; an inference founded upon the reasonable presumption that every man will accept of an act done for his benefit. Whether the deed has been delivered, depends upon the fact whether the grantor tor has placed it beyond his own control, whether any act remains to be done by him. If it is denied that the deed has been accepted, it is for the party making the denial to disprove the presumption arising from the beneficial nature of the grant. This must be done by evidence, not merely negative, showing that the grantee is ignorant of the deed, but affirmative and positive, bringing home to the party a knowledge of the deed, and a disaffirmance of it. Till such disaffirmance is shown, the presumption of acceptance must continue. For as this acceptance is implied by law for the benefit of the grantee, through his inability to accept in fact from his ignorance of the grant, the mere continuance of this ignorance and consequent inability can not rebut the original presumption. Such is the plain conclusion to be drawn from a careful analysis of the numerous authorities on the subject. Verplank v. Sterry, 12 Johns. 576; Souverbye v. Arden, 1 Johns. Ch. R. 240; Cook's adm'r. v. Hendricks, 502; 4 Munroe, 502; Inlow v. Commonwealth, 6 do. 74; Bryan v. Wash, 2 Gilm. 557; Shelton's Case, Cro. Eliz. 7; 4 Cruise's Dig. 28; Shep. Touch. 57-8; 4 Com. Dig. title Fail, A 3, 273; Taw v. Bury, 2 Dyer, 167 b; Church v. Gilman, 15 Wend. 656; Jackson v. Richards, 6 Cowen, 617; Wankford v. Wankford, 1 Salk. 299, 301; Ferguson v. Miles, 3 Gilm. 358; Cro. Eliz. 54; Wheelwright v. Wheelwright, 2 Mass. 447; Doe v. Knight, 12 Eng. Com. Law R. 351; Maynard v. Maynard, 10 Mass. 456; Harrison v. Phillips' Acad., 12 do. 456; Scrugham v. Wook, 15 Wend. 545; Herbert v. Herbert, Bre. 278; Clark. v. Ray, 1 Har. & Johns. 318; Fay v. Richardson, 7 Pick. 91; Hatch v. Hatch, 9 Mass. 307; Hedge v. Drew. 12 Pick. 141.

O. PETERS, also for the defendant in error, contended there was no necessity for any delivery of the deed of the Auditor of State to E. Wolcott, in order to show title out of the plaintiff.

This court has solemnly decided that a...