Pardee v. Lindley
| Decision Date | 30 April 1863 |
| Citation | 31 Ill. 174,1863 WL 3090,83 Am.Dec. 219 |
| Parties | THERON PARDEEv.WILSON LINDLEY |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of the county of McLean; the Hon. CHARLES EMERSON, Judge, presiding.
This was an action of ejectment instituted in the Circuit Court, by Theron Pardee against Wilson Lindley, to recover the possession of certain premises situate in the county of McLean.
The plea of the general issue being interposed, the cause proceeded to trial.
The plaintiff, having proven that the defendant was in possession of the land described in the declaration, at the time of the commencement of the suit, offered in evidence a certified copy from the record, of a deed of trust from Lindley, the defendant, to Asahel Gridley; and as a foundation for the introduction of such secondary evidence, the plaintiff presented an affidavit of said Gridley as follows:
+---------------------------------------------------------------+
¦“STATE OF ILLINOIS,¦)¦ ¦ ¦
+-------------------+-+---+-------------------------------------¦
¦ ¦)¦ss.¦Circuit Court. December Term, 1862.¦
+-------------------+-+---+-------------------------------------¦
¦COUNTY OF MCLEAN. ¦)¦ ¦ ¦
+---------------------------------------------------------------+
Asahel Gridley, being duly sworn, deposes and says, that he was the owner and holder of a certain deed of trust, made on the first day of April, 1858, by Wilson Lindley, of McLean county, Illinois, to this affiant, as trustee, and in trust for certain purposes therein expressed, wherein the said Lindley conveyed to this affiant, the following real estate, to wit: (setting out the lands as in the copy offered in evidence); that said deed of trust was in the possession of this affiant on or about the 20th day of November, A. D. 1861, and about the time this affiant advertised said land under said trust deed; that since that time he has lost or mislaid said trust deed, or the same has been abstracted; that since the loss of said deed, this affiant has carefully and diligently searched all places where he keeps his papers of that kind; that he has carefully searched all places in his dwelling-house, in his private apartments in the bank, and the entire vault, and all other places in the bank where he kept, or where any person or persons kept papers of any description; that the last he knew of said deed, it was in the possession of this affiant.
This affiant further swears, that he has made careful and diligent personal search in all places where he, or any person connected with him doing business, keep or have kept their papers since the disappearance of said deed, so that for these reasons this affiant says he has lost the said deed, and that the said deed cannot now be produced, nor is it in the power of this affiant to produce this said deed.
Signed,” etc.
The defendant objected to the reading in evidence the certified copy of the deed of trust upon the ground,
1. That there was no sufficient excuse shown for the non-production of the original deed; and
2. That the deed did not purport to convey the lands of the defendant; which objections were overruled and the copy of the deed was allowed to be read in evidence; to which the defendant excepted.
The copy thus read in evidence, was of a deed of trust from Wilson Lindley to Asahel Gridley, by which was conveyed certain lands, and among others, those described in the plaintiff's declaration.
The deed was dated on the first day of April, 1858, and recited that it was made to secure the paymant of a promissory note of that date, executed by Lindley and payable to Gridley, for the sum of forty-two hundred and fifty-four dollars and seventy-five cents, due and payable one year thereafter; and authorized Gridley, the trustee, to make sale of the premises in the mode and upon the conditions therein prescribed.
The plaintiff, against the objection of the defendants, was allowed to introduce in evidence the note to secure which the deed of trust was executed. It was proven that certain credits on the note were made to account for and appropriate the proceeds of sales of land under the trust deed, made by Lindley to Gridley, and to show that the note was then unpaid. Upon the back of this note was the following indorsement: “Pay A. Gridley & Co. A. GRIDLEY.”
A notice of the sale made by Gridley under the deed of trust was introduced, and it was proven that such notice had been published in accordance with the requirements in the deed.
The deed from Gridley, as trustee, to David J. Perry, for the land in controversy, was offered in evidence by the plaintiff, and objected to by the defendant.
This deed recited the deed of trust from Lindley to Gridley, and was objected to upon the grounds, first, that it appeared to be altered in a different handwriting, by erasing the name James, and inserting Wilson in that part of the deed of trust recited therein, which gives the power of sale; second, because the deed does not recite the advertisement of the sale made under the deed of trust, but only refers to a newspaper advertisement pasted on a blank space in the deed; third, that the deed did not show upon its face that it was made in pursuance of the powers contained in the trust deed; and fourth, that it appeared from the note that it had been assigned before the sale, and therefore Gridley had no power to make the sale.
The Circuit Court overruled all these objections, and allowed the deed to be read in evidence; and exception was taken.
The introduction of a deed of conveyance of the same lands, from Perry to Theron Pardee, closed the evidence in chief on the part of the plaintiff.
The defendant then proved that he was the head of a family, and resided with the same, upon the lands in the declaration described, and had so resided on said land as a homestead for twenty-five years. To this evidence the plaintiff objected, upon the ground that it was irrelevant to the issue; but the court overruled the objection, and the plaintiff excepted.
The defendant here closed his evidence.
The plaintiff thereupon proved that said lands were worth more than one thousand dollars, and that they could be divided without injury to the estate, and claimed that the jury should set off to the defendant the dwelling-house and lands, supposed to make, in value, one thousand dollars, and that they should find the defendant guilty as to the residue of the lands.
The court overruling the defendant's objection to this evidence, an exception was taken.
The defendant then offered to prove an outstanding title in one Hair, to a certain portion of the land in controversy, with the view of asking the court to instruct the jury, that if they believed, from the evidence, that the defendant did not own that portion of the land at the time the deed of trust was executed to Gridley, it could not be set aside to the defendant as any part of his homestead; to which the plaintiff objected. The court sustained the objection, and refused to admit this evidence; to which ruling the defendant excepted.
The case was submitted to the jury, who returned a verdict, finding the defendant guilty of unlawfully withholding from the plaintiff the possession of a certain part of the premises which were not of the homestead, and not guilty as to the residue.
The plaintiff entered his motion for a new trial, but not under the statute; the court overruled the motion, and rendered a judgment in accordance with the verdict of the jury. The plaintiff excepted to the ruling of the court, and thereupon sued out this writ of error.
Both parties assigned errors upon the record.
The plaintiff insists that the court below erred,
1. In allowing the defendant to prove that he was the head of a family, and lived with them on the land.
2. In allowing defendant to claim and prove his homestead right against the plaintiff.
3. In allowing the defendant, out of the land described, his homestead of the value of one thousand dollars.
4. In not setting aside the verdict, and not allowing plaintiff a new trial.
The defendant assigns the following:
1. Admitting the copy of the trust deed to be read to the jury.
2. Admitting the note to be read to the jury.
3. Admitting the deed from Gridley to Perry to be read to the jury.
4. Admitting evidence of the value of the land.
5. Refusing to allow the defendant to prove that a part of the land was not his; that there was a superior outstanding title to the same.
Mr. C. H. MOORE, for the plaintiff in error, contended that the defendant could not claim his statutory right of homestead against his own deed to Gridley.
The act of February 11, 1851, protected the homestead of the debtor, of the value of one thousand dollars, from a forced sale under execution or decree, unless he should release the right in the mode pointed out in that act.
The amendatory act of Febuary 17, 1857, simply required that the wife should join the husband in the release, to make it operative; and the law, as thus amended, still applies only to the same character of sales as those mentioned in the act of 1851, and can have no reference to sales made by the party himself.
The title of the act of 1857, shows that the legislature only intended to amend the act of 1851. They voted upon the title, as well as the act itself. 9 Peters R. 301.
The original act having reference only to forced sales, the amendatory act could not operate to change its effect by a simple declaration that the legislative intention was different from that expressed in the act amended.
Mr. R. E. WILLIAMS, for the defendant in error.
The deed of trust from Lindley to Gridley was executed since the act of 1857; the grantor's wife did not join in the deed.
No alienation can be made of the homestead, without the joinder and acknowledgment of the wife.
The amendatory act expressly declares its object to be “to...
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