Moore v. Titman

• Decision Date: 31 January 1864
• Citation: 1864 WL 2935,33 Ill. 357
• Parties: JOSHUA J. MOORE AND WIFEv.GEORGE TITMAN.
• Court: Illinois Supreme Court

33 Ill. 357

1864 WL 2935 (Ill.)

JOSHUA J. MOORE AND WIFE

v.GEORGE TITMAN.

Supreme Court of Illinois.

January Term, 1864.

ERROR to Circuit Court of Fulton county.

The case is sufficiently stated by the court.

Wead & Powell and Browning & Bushnell, for plaintiffs in error.

Ross, Tipton & Winter, and Hay & Cullom, for the defendant in error.

WALKER, C. J.

This bill was filed by defendant in error against plaintiff in error and his wife, to foreclose a mortgage executed by them. Process was served upon them, they entered their appearance at the return term, and obtained an extension of time to answer for sixty days. At the next term, having failed to answer, a default was entered and the bill taken as confessed; the case was referred to the master to ascertain the amount and report to the court. His report was filed and approved, a decree for the payment of the money within ten days was entered, and on default of payment, that the master sell the mortgaged premises after giving four weeks' notice. A sale was made subject to redemption, which was reported to the court. Upon the coming in of this report, plaintiff in error entered a motion to set aside the decree and sale,² which was overruled, and the sale confirmed. To reverse the decree in this case and set aside the sale, this writ of error is prosecuted.

Exceptions are taken to the sufficiency of the allegations of the bill. It is insisted that the allegation that plaintiff in error and his wife “made, executed, acknowledged and delivered a certain deed of mortgage,” does not imply that it was duly executed and became a valid mortgage. We think the allegation is sufficient, and can only be construed to mean that it was properly made and valid in its operation. But if this were not so, the instrument is referred to as an exhibit, which has the same effect as if copied at large into the bill. The court will refer to the exhibit to see if it sufficiently appears to have been so executed.

It is again urged that the bill fails to show what interest the wife had in the premises, and conveyed by the mortgage. As it is, by reference, made a part of the bill, upon inspection, we find, in the body of the instrument, that she purports to convey all of her interest, and in the acknowledgment, she relinguishes her dower in the premises. From the instrument, as a part of the bill, it appears that it was a dower interest. This allegation is sufficiently made, and this was admitted by the decree pro confesso.

Several objections are taken to the certificate¹ of acknowledgment of the deed. It appears substantially, that Mrs. Moore acknowledged the deed freely and voluntarily; that the officer made her acquainted with the contents of the mortgage, and that he examined her separate and apart from her husband. This is in compliance with the act of 1853, section 1. Scates' Comp. 966. The certificate also states that she relinquished her right of dower in the premises. And the certificate must be held sufficient as to Mrs. Moore's execution of the deed.

It is insisted that the notary public before whom the mortgage was acknowledged, failed to affix his official seal. It appears that in the body of his certificate he describes himself as notary public, and following his signature he designates himself as notary public, and a seal is annexed. It is true, that in the testing clause to the certificate he says: “Given under my hand and seal.” If, when the instrument was produced, it appeared that it was his official seal which was annexed, that would be sufficient, as the seal imports verity, and that the act is official and not individual. Inasmuch as the clerk, in making the transcript, is unable to transcribe a literal copy of the seal, we must suppose that the representation is of his official and not his private seal. Again, the default admits that the mortgage was made and acknowedged. If only the private seal of the officer had been affixed, the acknowledgment would have been insufficient, and the instrument would not have been sufficiently acknowledged. It would only have been an attempt at an acknowledgment; but by the default the sufficiency of the acknowledgment was admitted.

It is again urged, that the special master's report is not sufficient to support the decree. We do not deem it important whether it was or not, inasmuch as there was a hearing on the bill, pro confesso order, exhibits and other proofs. The presumption would be that on the hearing the court had all the evidence that was necessary to sustain the decree. Indeed, the bill having been taken as confessed, proof beyond the exhibits and pro confesso order was unnecessary. It was, according to the uniform practice, entirely discretionary with the court whether it would hear any evidence on a bill taken as confessed, the examination of the exhibits in such a case not being to establish the truth of the allegations of the bill, but simply to ascertain the sum due, upon which to base the decree. There is no force in this objection.

An exception is taken, that notice was not given to plaintiffs to appear before the master on the reference. In cases where a default has been taken and a reference is made, such a notice is not required. It is only in contested cases, where a reference is made, to report evidence, or to hear proofs and report facts, that the rule is applicable. It is true, the parties being in court, they have the right in a case where the bill is taken as confessed to appear before the master on a reference if they think proper. But in such a case the practice does not require notice; or upon the master's making the report of his computation, the defendant may, if he choose, file exceptions and resist its approval.

Did the court below err in overruling the motion to set aside the sale, and in rendering a decree confirming it? It is urged that the master, in conducting the sale, did not conform to the decree under which he acted. He reports that he had given the notice required by the decree. It was not necessary that he should set out the notice in his report, but on an application for its confirmation it was necessary that the court should be satisfied that the sale had been made in accordance with the requirements of the decree. Nor is it necessary, on such a motion, that evidence of that fact should be preserved in the record, unless the confirmation is resisted and it is desired by one of the parties. The presumption is, that the court below had sufficient evidence to warrant the order of confirmation. In the case of Dow v. Seely, 29 Ill., 495, this court said, that we are inclined to think...