Lindley v. Smith

• Decision Date: 31 January 1868
• Citation: 1868 WL 4920,46 Ill. 523
• Parties: SAMUEL LINDLEYv.HANNAH SMITH.
• Court: Illinois Supreme Court

46 Ill. 523

1868 WL 4920 (Ill.)

SAMUEL LINDLEY

v.HANNAH SMITH.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clark county; the Hon. HIRAM B. DECIUS, Judge, presiding.

The opinion states the case.

Mr. O. B. FICKLIN, for the appellant.

Mr. JOHN SCHOFIELD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of ejectment, brought by Hannah Smith, in the Circuit Court of Clark county, against Samuel Lindley, to recover certain tracts of land. To the declaration, the plea of the general issue was filed and issue joined. By agreement of the parties, the cause was submitted to, and tried by, the court, without the intervention of a jury. After hearing the evidence, the court found for the appellee, and that she recover an undivided half of the premises. A motion for a new trial was entered, which was overruled by the court, and a judgment rendered in favor of plaintiff below.

It is agreed, that appellee (late Hannah Hollenbeck) was seized in fee in her own right, as one of the two, and only, heirs of Lawrence Hollenbeck, deceased, who died about the year 1851, of an undivided half of the lands described in plaintiff's declaration, and that she continued so seized until the 14th day of January, 1859, when she, with her husband, Joseph Hollenbeck, with whom she had previously intermarried, by deed with covenants of general warranty, conveyed the lands, for the consideration of five hundred dollars, to Thomas J. Sturr and Charles M. Taylor, subject to a deed of trust, to Nelson Hoddy, for $950. The deed was acknowledged before William C. Whitlock, a justice of the peace, to which he attached his certificate.

This is the certificate:

“STATE OF ILLINOIS, Clark county, ss.

I, William C. Whitlock, a justice of the peace, in and for the said county in the State aforesaid, do hereby certify that Joseph Hollenbeck, personally known to me as the same person whose name is subscribed to the foregoing warranty deed, appeared before me, this day, in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth.

And the said Hannah M. Hollenbeck, wife of said Joseph M. Hollenbeck, having been by me examined separate and apart, and out of hearing of her husband, and the contents and meaning of the said instrument in writing having been by me made known and fully explained to her, acknowledged that she had freely and voluntarily executed the same, without compulsion of her said husband, and that she does not wish to retract the same. Given under my hand and seal, this fourteenth day of January, A. D., 1859.

W. C. WHITLOCK, J. P. [SEAL.]”

Appellee having established her title, and proved the death of her former husband, in 1865, appellant offered to read this deed in evidence, but it was rejected by the court, on objection by appellee. Appellant then produced Whitlock as a witness, and offered to prove by him that he, at the time of taking the acknowledgment, personally knew Hannah Hollenbeck, and that he knew at the time that she was the identical person who signed the deed, which evidence the court rejected, and refused to receive. Appellant then introduced in evidence, a deed from Sturr and wife, conveying their interest in the land, to Taylor; also a deed from Taylor to appellant for the same lands. It also appears that Sturr and Taylor entered into immediate possession of the premises, and they and their grantees have paid all the taxes legally assessed thereon, since that time.

The questions are raised and discussed upon this record. First, was the certificate of acknowledgment to the deed from Hollenbeck and wife, sufficient to pass the wife's title to the lands? Second, was the proof offered to be made by Whitlock, competent and admissible; and third, was the action barred by the statute of limitations of 1839?

It has been repeatedly and uniformly held by this court, that a feme covert can only convey her real estate by complying with the statute providing for such alienations. Mariner v. Sanders, 5 Gilm. 125; Russell v. Ramsey, 35 Ill. 370; Hughes v. Lane, 11 Ill. 128; Lane v. Soulard, 15 Ill. 123; Mason v. Brock, 12 Ill. 273; Garrett v. Moss, 22 Ill. 363; Gove v. Cather, 23 Ill. 634. In the last of these cases, this objection was sustained by the court as substantial, and fatal to the acknowledgment. The court there say, that “we cannot intend anything in favor of it, or supply words that are wanting, or change the personal pronouns from male to female. The manifest defects in it cannot be supplied by the court, and have not been explained by counsel. Nor does the certificate of acknowledgment, defective in other respects as it is, state that the wife was known to the officer to be the person who signed the deed. The statutory forms must be substantially complied with, and must control.” That case must govern this, as the point was then deliberately determined, and has become a rule of property, under which rights have been acquired, and liabilities incurred.

The statute is explicit, that in order to convey property in real estate, the grantor shall appear before a proper officer, to whom he or she is known, or is proved by a credible witness, to be the person who executed such deed or conveyance. And the officer is required to endorse or annex a certificate to the deed, stating that such person was personally known to him, or proved by a witness who shall be named, to be the person who subscribed the deed. This requirement has been held to be one of substance, and in its absence, the deed is not admissible in evidence. Tully v. Davis, 30 Ill. 103; Shepherd v. Carriel, 19 Ill. 313; Adams v. Bishop, ib. 395; Montag v. Linn, ib. 399. In the case of Tully v. Davis, we...