Martin v. Gilmore
| Decision Date | 31 January 1874 |
| Citation | 1874 WL 8787,72 Ill. 193 |
| Parties | JAMES W. MARTINv.HENRY H. GILMORE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Fulton county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.
Mr. J. S. WINTER, and Mr. D. MCCULLOUGH, for the plaintiff in error.
Mr. W. C. GOUDY, for the defendants in error.
This was an action of ejectment, brought by James W. Martin against Henry H. Gilmore, to recover a certain quarter section of land in Fulton county. By an order of the court, S. Corning Judd, lessor of the defendant, upon his motion, was made a party defendant.
The parties waived a jury, a trial was had before the court, and judgment rendered in favor of the defendants.
The plaintiff brings the case here, and urges that the judgment of the court is contrary to the evidence and the law.
There are but two questions presented by this record for consideration. The first is as to the validity of the deed made by the United States Marshal to Andrew Hoagland. Second, if the deed is valid, then defendants insist the title shown in evidence by them is paramount to that of plaintiff.
Both parties claim title from Joshua J. Moore, who originally owned the land.
The plaintiff introduced in evidence a judgment rendered in the Circuit Court of the United States for the District of Illinois, on the 14th day of July, 1854, in favor of Joseph C. Hoagland, against Joshua J. Moore; also an execution issued on said judgment on the 1st day of September, 1854. The execution shows a levy on the land in controversy September 10th, 1854, and a sale to Joseph C. Hoagland on September 1st, 1856, for $800. The sale was made by H. Wilton, United States Marshal, by A. C. Dixon, special deputy. A certificate of purchase was delivered to Joseph C. Hoagland, in the usual form, providing for a deed at the expiration of fifteen months, in case the land should not be redeemed.
On the 8th day of August, 1857, the certificate of purchase was assigned by Joseph C. Hoagland to Andrew Hoagland.
The plaintiff also introduced in evidence a deed from James W. Davidson, Marshal of Illinois, to Andrew Hoagland, upon the certificate of purchase, bearing date June 28th, 1858. The plaintiff admitted that the term of office of the marshal who made the sale had expired before the deed was made; that, before the execution of the deed, Joseph C. Hoagland had presented a petition to the Circuit Court of the United States for the Northern District of Illinois, for a deed of the premises to be made to him, and the court had ordered a deed to be made, which was the only petition presented, and the only order for a deed ever made.
The plaintiff then read in evidence a deed dated July 14th, 1870, from Andrew Hoagland to the plaintiff.
It is insisted by the defendants that the deed made by the marshal, Davidson, to Andrew Hoagland, is void, under the 3d section of an act of Congress passed May 7th, 1800, which is as follows:
“ Be it further enacted, That, whenever a marshal shall sell any lands, tenements or hereditaments, by virtue of process from a court of the United States, and shall die, or be removed from office, or the term of his commission expire, before a deed shall be executed for the same by him to the purchaser, in every such case the purchaser or plaintiff at whose suit the sale was made may apply to the court from which the process issued, and set forth the case, assigning the reason why the title was not perfected by the marshal who sold the same, and thereupon the court may order the marshal for the time being to perfect the title and execute a deed to the purchaser, he paying the purchase money and costs remaining unpaid.”
The position taken by the defendants would, no doubt, be correct, if the deed was to be governed by the act of 1800, but the validity of the deed does not depend upon the provisions of that act, but it is directly within and must be governed by the Process Act of the 19th of May, 1828, and the subsequent act of August 23, 1842.
The first section of the act of 1828 declares that the forms of mesne process, and the forms and modes of proceeding in suits at common law, in the courts of the United States, held in States admitted into the Union since 1789, shall be the same in each of said States, respectively, as were then used in the highest court of original and general jurisdiction in the same, subject to such alterations and additions as the courts of the United States respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court shall think proper, from time to time, by rules, to prescribe to any circuit or district court, concerning the same.
The third section declares that writs of execution and other final process issued on judgments and decrees rendered in any courts of the United States, and the proceedings thereupon, shall be the same in each State, respectively, as are now used in the courts of such State.
This act as effectually adopts the State laws in force at the time of its enactment, as if the State laws had been incorporated in full in the act itself.
The act of 1842 extends the provisions of the act of 1828 to all State laws in force on the subject at the time of the enactment of the act of 1842.
In the case of Ross v. Duval, 13 Peters, 63, the court, in speaking of the act of 1828, say: “This act adopts, in specific terms, the execution laws of the State.” Again the court say, in the same case: “It must be recollected that this act of 1828 is a national law, and was intended to operate in the national courts in every State.”
In Beers v. Haughton, 9 Peters, 361, the court, in discussing the effect of the act of 1828, use this language: “But the material consideration now to be taken notice of, is, that the act of 1828 expressly adopts the mesne processes and modes of proceedings in suits at common law then existing in the highest State courts, under the State laws, which of course included all the regulations of the State law as to bail; in regard, also, to writs of execution and final process, and the proceedings thereunder, it adopts in equally comprehensive language, and declares that they shall be the same as were then used in the courts of the State.” See, also, McCracken v. Haywood, 2 Howard, 616.
It then remains to be seen what execution laws were in force in this State at the time the acts of 1828 and 1842 were adopted by Congress.
The act of the legislature of the 17th day of January, 1825, was in force and adopted by the act of Congress of 1828.
The 10th section of this act provides, that, upon a sale of lands by a sheriff under an execution, instead of executing a deed to the purchaser he shall give a certificate of purchase. The 13th section provides, if the lands shall...
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