Maxcy v. Clabaugh

• Decision Date: 31 December 1844
• Citation: 1 Gilman 26,6 Ill. 26,1844 WL 4049
• Parties: ALBERT G. MAXCYv.JOHN CLABAUGH.
• Court: Illinois Supreme Court

1 Gilman 26

6 Ill. 26

1844 WL 4049 (Ill.)

ALBERT G. MAXCY

v.JOHN CLABAUGH.

Supreme Court of Illinois.

December Term, 1844.

DEBT under the statute for cutting timber.This cause was heard before the Hon. SIDNEY BREESE, and jury, at the June term of the Clinton circuit court, 1842.Verdict for the defendant, and judgment rendered thereon, with costs against the plaintiff.The evidence offered at the trial appears in the opinion of the court.

B.BOND and J. GILLESPIE, for the plaintiff in error, cited Jackson v. Myers, 3 Johns. 394;Same v. Clark, 7 do. 223;Same v. Blodgett, 16 do. 178;Same v. Loomis, 18 do. 846; Same v. Moore, 9 Cowen, 717;Conolly v. Vernon, 5 East, 80.

L. TRUMBULL, for the defendant in error, contended that the clerk of the county commissioners' court had no authority to correct the mistake.Application should have been made to a court of equity, by making all persons parties who are interested.

GILLESPIE, in reply.There is no occasion for resorting to a court of equity to correct the mistake.The parties are willing to correct it.The deed itself is correct, and its meaning evident.

SHIELDS, J.

This was an action of debt under the statute for cutting timber on the north east quarter of section thirty-six (36), in township two (2) north, of range three (3) west of the third principal meridian, lying in the county of Clinton.The action was commenced at the June term of the circuit court of said county, A. D. 1842, by Albert G. Maxcy against John Clabaugh.The declaration contained two counts in the usual form.Defendant filed the general issue.

On the trial, the plaintiff offered in evidence, as proof of his title to said tract of land, a certificate of the register of the land office in Edwardsville, of the entry of said tract of land by J. Armstrong and Jesse Embree, which was received by the court.Also, a tax deed executed by John S. Carrigan, clerk of the county commissioners' court of Clinton county, and dated March 8, 1838, which recited as follows, to wit:

“Whereas I did on the 3d day of March, 1834, at the court house in the town of Carlisle in conformity with all the requisitions of the several acts in such cases made and provided, expose to public sale certain tracts of land, being the N. E. qr. of section No. 36 in T. 2 N. of R. 3 West of the 3d pr. Mer.;also, the S. E. qr. of section No. 36, Town. 2 N. of R. 3 West of 3d pr. Mer.for the sum of two dollars and sixty-nine cents each for the taxes, interest and costs due thereon for the year 1834, and whereas, at the time aforesaid, Albert G. Maxcy offered to pay the aforesaid sum of money for the whole of said tracts of land, which was the least number of acres bid for, and the said Albert G. Maxcy has paid the sum of two dollars and sixty-nine cents on each of said tracts, and the said sum being in full of the taxes, interest and costs due thereon for the year 1833; I have granted, bargained, sold,” etc.

This deed was acknowledged on the 22d day of October, 1841, objected to the admission of the deed in evidence, and the objection was sustained by the court.To this decision of the courtthe plaintiff excepted.

The plaintiff next offered in evidence an amended deed executed by Parmenius Bond, clerk of the county commissioners' court of the said county of Clinton, and successor of the said Carrigan.The deed, which is dated on the 10th day of November, 1841, recites that his predecessor, in the deed aforesaid, had made a mistake in stating that the lands were sold for the taxes of 1834; that the records and papers on file in his office showed that the lands included in said deed were sold to said Maxcy for the taxes, interest and costs of 1833; and that he,...