Kerr v. Russell

• Decision Date: 30 September 1873
• Citation: 18 Am.Rep. 634,69 Ill. 666,1873 WL 8536
• Parties: WILLIAM P. KERRv.CORNELIA RUSSELL.
• Court: Illinois Supreme Court

69 Ill. 666

1873 WL 8536 (Ill.)

18 Am.Rep. 634

WILLIAM P. KERR

v.CORNELIA RUSSELL.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a petition by Cornelia Russell against William P. Kerr, Charles B. Phillips, John Phillips, Charles H. Atkins and the South Park Commissioners, to recover dower in the south-west quarter and the south-east fractional quarter of section 13, township 38 north, range 14 east, in Cook county.

The petitioner married John B. F. Russell January 31, 1835, and cohabited with him until his death, on January 3, 1861. It appears that her husband was seized of the lands during coverture, but that, on June 31, 1837, the husband conveyed the same to one Francis Peyton, a brother of the petitioner, which deed purported to be signed and acknowledged by the petitioner. Through this conveyance, the defendant, Kerr, derived title, and the defendants claim through him. The petition was filed seven years, less one day, after the death of the petitioner's husband. The petitioner, on the hearing, rested her claim upon three grounds: 1. Because the acknowledgment of the Peyton deed was defective. 2. Because the signature thereto, purporting to be her own, was a forgery; and, 3, because she never acknowledged the same.

On the hearing the court below granted the relief sought in the petition, from which decree William P. Kerr appealed.

Messrs. GOOKINS & ROBERTS, and Messrs. MONROE, BISBEE & GIBBS, for the appellant.

Messrs. MORRIS & FORRESTER, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This case does not differ very materially from the case of The Calumet and Chicago Canal and Dock Company v. Russell, 68 Ill. 426, which we have discussed at some length. The case is based on substantially the same grounds, namely: defects in the certificate of acknowledgment, proof furnished by her own testimony that she did not acknowledge the execution of the deed, and further, that the signature to the deed is not her handwriting. This point was not in the case, supra.

The first ground we have fully explored, reaching the conclusion that the certificate, taken as an instrument of writing, is in substantial conformity with the statute. We reviewed the authorities on this point, and could come to no other conclusion, and we are entirely satisfied with what was there said.

It may be said, in view of some of the cases cited, decided by this court, that greater strictness is required, where a married woman seeks to convey her own real estate, for the reason the deed does not take effect by delivery, as in the case of a conveyance by a husband and wife conveying his estate, in which the wife has but an inchoate, uncertain and expectant interest, which may never be consummated. In the first case, her deed becomes operative only by her acknowledgment in the mode prescribed by the statute. Until so acknowledged, it has no vitality. Lindley v. Smith et al. 58 Ill. 250.

In the latter case, the great purpose of the law is subserved, that her relinquishment of this uncertain right is not obtained by fraud or compulsion, but is her own free and voluntary act.

Upon the second ground, that, by reason of her absence from Chicago during the year 1837, it was physically impossible for her to have executed the deed and acknowledged the same, we are of opinion, after maturely considering all the testimony on this point, that it greatly preponderates in favor of the fact of her presence at her home, in Chicago, during the whole or greater part of that year, and in the month in which the deed purports to have been executed. The testimony of appellee is not supported by any witness, and, considering its whole character as it appears in this record, it is not satisfactory, and it is contradicted by four or more reputable, disinterested witnesses, who prove her presence there by circumstances which force conviction even upon the unwilling mind.

The records of the county of Cook, in which was her residence, show, most incontestably, deeds purporting to have been executed by appellee and her husband for valuable property, in different months of that year, which she now testifies she never signed or acknowledged, and all of which purport to bear her signature. There are near a score of such deeds, and we can not conceive it to be within the range of reasonable probability, that she did not execute them, one and all.

We have referred to the case of Lickmon v. Harding, 65 Ill. 505, in which this court said, the unsupported testimony of a party to a deed, that he did not execute it, shall not prevail over the official certificate of the officer taking the acknowledgment. Public policy, the security of titles, the peace of society, demand such a rule, and a strict adherence to it.

This court has often said, that the provision of the law authorizing a justice of the peace, or other designated officer, to take the private examination of the wife, was designed as a substitute for the proceeding at common law by fine and recovery, whereby the rights of the wife, on the one hand, might be guarded, and a sure, indefeasible and unquestionable transfer of her right secured on the other. It can not be supposed, whilst the legislature were protecting the wife, they had no regard to the importance of inspiring confidence in the title. They knew well the ruinous consequences which would ensue from doubt and uncertainty as to titles to land, and nothing better calculated to create such doubts could be conceived, than the privilege, at any period, no matter how remote, of alleging and proving that the certificate of the magistrate is false. The proceeding by fine and recovery never could be contradicted; why, then, should its substitute be subjected to that test. No man could be content with a title, in all respects perfect upon its face, when, upon the death of his vendor, his widow, with the assistance of the magistrate, or without it, as in this case, may undo what they have solemnly done, and without the possibility of contradiction, since the magistrate and the wife are alone privies and parties to her examination. Of what value would privy examinations be, where the wife has been quiet during the lifetime of her husband, and conjures up, at a remote day, objections, which are allowed to prevail? Who would take a...