Partridge v. Chapman

• Decision Date: 31 January 1876
• Court: Illinois Supreme Court
• Parties: PARTRIDGE, WELLS & CO.v.ISAAC CHAPMAN et al.

81 Ill. 137

1876 WL 9936 (Ill.)

PARTRIDGE, WELLS & CO.

v.ISAAC CHAPMAN et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Montgomery county; the Hon. HORATIO M. VANDEVEER, Judge, presiding.

Messrs. BLACKWELL & KINGSBURY, for the appellants.

Mr. E. LANE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that Isaac Chapman executed a deed to Wm. E. Baird, and also a mortgage to Partridge, Wells & Co., on the same piece of land, and the controversy is as to which deed is first in date or delivery, or whether Baird took open, visible possession before the mortgage was filed for record. The deed to Baird bears date the 19th day of March, 1872. The date was first written the 18th, but that was erased and the 19th written in its stead. The mortgage bears date on the 18th.

The justice of the peace who wrote the deed and mortgage and took the acknowledgment of each, swears that the deed was made on the 18th, and was executed before the mortgage, and that he called Chapman's attention to the fact, that the mortgage embraced a part of the land he had conveyed by the deed. Chapman replied that it did not matter, as the mortgage would stand only a short time. Baird swears that the deed was executed and delivered to him on the 18th, and his wife's father and her sister both swear they had it in their hands and read it after Baird returned home, on the 18th, at his house. On the other side, Chapman and one of his sons swear it was executed on the 19th, and another son swears that Baird told him it was executed on the latter date.

On reading this evidence we are strongly impressed with the truth of the evidence that the deed was in fact executed and delivered on the 18th. The justice of the peace, who has the best means of knowing all the facts in regard to the execution of both instruments, as he drew and took the acknowledgment to both, is clear and distinct in his statement, and he is disinterested, and supported by the evidence of two other disinterested witnesses, whose evidence bears the impress of truth, as well as by Baird himself. The evidence of Chapman is positive, and so is that of his son, who swears that the deed was made on the 19th, but he does not explain in what manner he learned the fact; whether he was present when the instruments were made, or whether he learned the fact from the date of the deeds, or otherwise. Nor does the other son say when, where, or under what circumstances, the conversation to which he swears was had. All the evidence on this point considered, we are clearly of opinion that there is a decided and clear preponderance of evidence that the deed was executed on the 18th, and before the mortgage. It is so decided that we are impelled by its force to believe that it has priority in its execution.

The mortgage was delivered by Chapman to the recorder on the 23d day of March, 1872, to be recorded, and he mailed it, directed to Chapman, on the 26th, after spreading it on the record. It was received by Chapman and sent to the mortgagees in New York. They returned it to Chapman to have it executed and acknowledged by his wife, which she did, and it was again sent to the mortgagees by Chapman. It was thus spread upon the record and filed with the recorder before Baird had his deed recorded. This is claimed to give the mortgagees the priority of claim over Baird,...