Kerr v. Hitt

• Decision Date: 30 September 1874
• Parties: DAWSON KERR et al.v.WILLIS M. HITT.
• Court: Illinois Supreme Court

75 Ill. 51

1874 WL 9188 (Ill.)

DAWSON KERR et al.

v.WILLIS M. HITT.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

This was a petition filed by Willis M. Hitt against Dawson Kerr, Jr., Luther L. Greenleaf, Lombard Decham, Maximillian Decham, George S. Robinson and Asbel Gage, under the act of the legislature, entitled “An act to remedy the evils consequent upon the destruction of any public records by fire or otherwise,” in force July 1, 1872.

Lombard Decham filed a cross bill alleging a mistake in the deed of John S. Clark to Mary J. Dennis in conveying the north half of the fractional quarter, instead of the north 20 rods thereof, and prayed that Willis M. Hitt be enjoined from prosecuting his claim, and that the deed to him be set aside as a cloud upon the title of Decham.

Luther L. Greenleaf filed his original bill against Willis M. Hitt and others in which he set up the facts of the case in respect to the conveyance from Clark to Mrs. Dennis, and the establishing the boundary line of her land, substantially as in the opinion of the court, and prayed that certain defects in his title be corrected, and for general relief. The opinion of the court contains a substantial statement of the facts giving rise to the controversy.

Mr. W. T. BURGESS, and Mr. B. M. MUNN, for the appellants.

Messrs. FORRESTER, BEEM & GIBBS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was a proceeding commenced under an act of the legislature, entitled “An act to remedy the evils consequent upon the destruction of any public records by fire or otherwise,” in force July 1, 1872. Petitioner alleges, at the date of the destruction of the records of Cook county, Edward M. Dennis, one of the executors of Mary J. Dennis, was the owner of the land involved in this litigation, particularly setting forth the title; that afterwards he conveyed it to petitioner, Willis M. Hitt, by quit-claim deed, makes Lombard Decham and others, supposed to claim some interest in the premises, parties defendant, and prays that the title may be established in him.

A demurrer was filed to the petition, which was by the court overruled, and that decision is one cause assigned for error. Answers having been filed upon which issues were joined, as well as upon the cross-bill of Decham, and the original bill of Greenleaf, a subsequent purchaser of a part of the property from Decham, which latter proceeding was consolidated with this cause on the final hearing, the court decreed the relief sought by the petition and established the title in Hitt.

Without reference to the many objections urged to the validity of the act of the general assembly, under which this proceeding was commenced, and the power of a court of chancery under that law to establish the legal title of the premises in the petitioner, we think the petition ought to have been dismissed on the merits of the case.

There is one objection, however, which has reference to the publication of the notice by which some of the defendants were brought into court, that we ought, perhaps, to notice. The statute requires that notice of the filing of the petition in this class of cases shall be given to all known defendants, and “all whom it may concern,” by publication in some “newspaper,” which notice shall be entitled ““Land title notice,” and shall be published once a week for four weeks successively; each publication to be in the same newspaper. By the 12th section it is made the duty of the clerk to advertise for bids for publishing such notices, and the judge or judges in the courts where the proceedings are had shall award the printing to the newspaper making the lowest bid therefor. All publications, provided for under the act, are to be made in the newspaper designated. In this instance, publication of notice of filing the petition was made in the Chicago Legal News, a journal of legal intelligence, containing decisions of Federal and State Supreme courts, legal information and general news. No complaint is made that this paper had not been selected in the mode prescribed in the statute, but the objection is, it is not a newspaper, in the sense in which that word is used in the statute.

The statutory definition of a newspaper in which legal notices may be published, unless otherwise provided by contract, is twofold, that is, it shall be a secular newspaper of general circulation, or some paper specially authorized by law to publish legal notices. R. S. 1874, p. 723, sec. 5. Any notice published in a paper coming within either definition is legal.

The “Chicago Legal News” is published in the city of Chicago, in the county where this proceeding was commenced, is published once a week, is devoted principally to the dissemination of legal intelligence, but makes reference to passing events, contains advertisements, brief notices of legislative bodies, personal and political items of interest to the general reader as well as the legal profession. Thus it will be seen it comes substantially at least within the definition given by lexicographers of a “newspaper.” It is none the less a “““newspaper” because its chief object is the publication of legal news. Many newspapers published in this and other countries are devoted chiefly to special interests, such as religious and political newspapers, others devoted exclusively to literature, that contain advertisements, news items, personal and political, brief notices of matters of special public concern, and reference to proceedings of legislative and other public bodies. So it is with this journal. Besides legal it contains other items of news, not only connected with the bench and bar, but others of a general interest. It is that class of journal that will circulate among lawyers, real estate and other business men, for it contains information in regard to sales of real estate, whether under judicial process or under powers. Accordingly its advertising columns contain notices of sales under trust-deeds, on execution, judicial sales under decrees of court, and all manner of notices of legal transactions, as well as a limited number of other advertisements usually found in a newspaper of general circulation.

In Kellog v. Carrico, 47 Mo. 157, it was held the “Legal Record and Advertiser,” a journal devoted to the dissemination of legal intelligence, was a newspaper, and that publication in it imparted notice of a sale under a trust-deed. The court in its reasoning said, “It is not the particular kind of intelligence published that constitutes one publication a newspaper rather than another.”

The “Legal News” is published by an incorporated company created by an act of the legislature approved February 27, 1869. By the second section it is declared, “the primary object of the company shall be to publish the ‘Chicago Legal News,’ a weekly newspaper, in the city of Chicago, State of Illinois, devoted mainly to legal matters.” The fifth section provides, “any notice or advertisement required by law or the order of any court to be published in any newspaper, shall be as good and valid if published in the ‘Chicago Legal News' as in any newspaper.”

A public law approved March 27, 1869, made it the duty of the Secretary of State to furnish the “Chicago Legal News Company,” publishing a newspaper called the “Chicago Legal News,” copies of public laws to be printed and published in that journal. These several acts of the general assembly may be regarded as a legislative construction, and recognition of the fact, the “Chicago Legal News” is a newspaper in the sense that term is used in the statute. The law-making power must have so understood it, and since then it has been so recognized by the courts, both Federal and State, held in Cook county, and quite generally by the legal profession and others engaged in the transaction of legal business. Since the pas sage of the act incorporating the “Chicago Legal News Company” it has been the constant practice to publish in that paper legal notices required by law or the order of courts to be published, notices of sales under deeds of trust, notices to non-resident defendants in chancery, and indeed all legal notices required by law or otherwise to be published in a newspaper. Should we now hold such notices illegal because the “Legal News” is not a newspaper, it would unsettle the title to real property of immense value, and work incalculable mischief. Judicial sales, proceedings against non-resident defendants in chancery, proceedings in...