Huls v. Buntin

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Huls v. Buntin, 47 Ill. 396, 1868 WL 5006 (Ill. 1868)
• Decision Date: 30 June 1868
• Parties: ANDREW HULSv.JAMES BUNTIN.

47 Ill. 396

1868 WL 5006 (Ill.)

ANDREW HULS

v.JAMES BUNTIN.

Supreme Court of Illinois.

June Term, 1868.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Crawford county; the Hon. AARON SHAW, Judge, presiding.

The opinion states the case.

Mr. E. CALLAHAN, for the plaintiff in error.

Mr. J. C. ALLEN, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, for the recovery of the north-east quarter of Sec. 29, Township 6 north, Range 10 west, in Crawford county. The cause was tried at the April term, 1867, by the court and a jury. On the trial, plaintiff in error offered to read in evidence the book filed in the county clerk's office, giving the names of the purchasers and the date of each entry of lands in the county, for the purpose of proving that Samuel Shaw had entered the land and become the purchaser thereof in eighty acre tracts in the years 1828 and 1829. He also proved that search had been made and the original patents could not be found. Defendant objected to the book as evidence, and his objection was sustained by the court. In this there was no error. If lost, plaintiff should have applied to the commissioner of the general land office, and obtained duplicate patents. They are held to be evidence not subject to our recording laws, and admissible as original testimony without laying a foundation for their introduction. Where the original is lost, a duplicate should be obtained from the authority which issued it. Graves v. Bruen, 1 Gilm. 167.

The book might probably have been admissible, had the register of the land office certified that it was a correct copy from the books of entry in the land office, that officer being authorized by the statute to make certificates that entries have been made, they being declared to be evidence of the fact. But in this case there was no such certificate, and it could not be supplied by parol testimony. The statute has not declared such books to be evidence, and under the rules of evidence they could not be received, because better evidence was within the reach of the party, and he was bound to avail himself of it or submit to the consequences of its non-production.

It, however, appears from the evidence, that both parties claim to derive title from the same source. Plaintiff in error claims from Shaw, through his heirs, while defendant claims from him through his administratrix, under a sale authorized by a decree of court. In such a case, it was unnecessary for plaintiff in error to trace title beyond the common source, and having shown that they both claimed to derive title from Shaw, there was no necessity for him to show how Shaw acquired or held title. The question was then presented, whether plaintiff in error had acquired and was the legal owner of Shaw's title. To establish that fact, he introduced deeds of conveyance from the heirs of Shaw to himself, for the land in controversy. He also introduced orders of the circuit court, licensing the administratrix of Shaw's estate to sell the real estate in controversy, and which are claimed to be irregular and to have conferred no title upon the purchaser, for want of jurisdiction of the court over the heirs to render the decree licensing the sale.

From the portion of the record in that proceeding read in evidence, it seems to have been erroneous, but as it does not purport to be the entire record, we deem it unnecessary to discuss the question whether there was jurisdiction to sustain the decree and sale. If the court had jurisdiction of the subject matter, and of the persons of the parties, and did adjudicate in the case, that determination cannot be attacked collaterally, however erroneous. But if jurisdiction were wanting, the decree and proceedings under it would not bind any one, and they could be attacked in any legal proceeding.

Defendant in error introduced in evidence a deed from the administratrix to himself, for the land in controversy. It, however, appeared that she was sole and unmarried when she became an administratrix, but had married and was a feme covert when she executed the deed; and it is objected the deed is inoperative, because her husband did not join her in its execution. As to her real estate or dower, she is undoubtedly powerless to convey or release, unless joined by her husband, but when acting as a mere agent or instrument of the law, it is different. When the law authorizes a married woman to act as an administratrix, it necessarily clothes her with power to perform all acts necessary to a complete performance of all the duties of the position. An administratrix is not only authorized, but required, when necessary, to petition the court for leave to...