Reece v. Allen

• Decision Date: 31 December 1848
• Citation: 10 Ill. 236,48 Am.Dec. 336,5 Gilman 236,1848 WL 4148
• Parties: WILLIAM REECEv.WILLIAM H. ALLEN, Administrator of James Mason, deceased.
• Court: Illinois Supreme Court

5 Gilman 236

10 Ill. 236

1848 WL 4148 (Ill.)

48 Am.Dec. 336

WILLIAM REECE

v.WILLIAM H. ALLEN, Administrator of James Mason, deceased.

Supreme Court of Illinois.

December Term, 1848.

EJECTMENT, in the Madison circuit court, brought by the appellee against the appellant and others, and heard before the Hon. Gustavus P. Koerner.

At the March term, 1848, the plaintiff dismissed his suit at to all but William Reece, and a jury was called, who rendered a verdict in favor of the plaintiff. The defendant filed a bill of exceptions, and entered an appeal.

G. TRUMBULL, for the appellant, contended:

1. That the acknowledgment was not sufficient in law. Rev. Stat. 107; Job v. Tebbetts, 4 Gilm. 148.

2. That when a power is prescribed by a particular method, it should be pursued. 4 Kent's Com. 148; Sugd. on Vendors, 87; Hawkins v. Kemp, 3 East, 440, 443; 3 Burrow, 1446; Doug. 28; 4 Peters' Cond. R. 396.

3. That the appellee must show a legal title, in order to recover in ejectment. Hulick v. Scovil, 4 Gilm. 172; 2 Greenl. Ev. 251, 267; Adams on Eject. 285.

H. W. BILLINGS and L. PARSONS, Jr., for the appellee:

1. The proof of the execution of the deed from Daniel Reece to John F. Darby was sufficient. Rev. Stat. Ch. 24, § 20; Job v. Tebbetts, 4 Gilm. 152; Delaunay v. Burnett, ib. 489.

2. A deed by a trustee conveys an absolute title in a court of law, and the vendee need not show that the conditions of the trust have been complied with. Taylor v. King, 6 Munf. 366; Harris v. Harris, ib. 367; Ringgold v. Ringgold, 1 Harris & Gill. 26, 27; Jackson v. Davenport, 20 Johns. 548; Minuse v. Cox, 5 Johns. Ch. R. 446; Hilliard's Abr. 233, § 22; Hill on Trustees, 275, 188, 478.

3. An equitable title can not be set up in action of ejectment in opposition to the legal estate. Jackson v. Pierce, 2 Johns. 226; Same v. Chase, ib. 85.

4. Sales made by trustees can only be avoided in chancery. Davoue v. Fanning, 2 Johns. Ch. R. 257, 265; Jackson v. Van Dalfsen, 5 Johns. 46; Wilson v. Troup, 2 Cowen, 203, 211; Thorp v. McCullum, 1 Gilm. 627; Jackson v. Walsh, 14 Johns. 414; Taylor v. King, 6 Munf. 366; Beach v. Beach, 14 Verm. 28.

5. No one but the cestui que trust has a right to call in question, or set aside a purchase made by the trustee. Wilson v. Troup, 2 Cowen, 238; Greenleaf v. Queen, 1 Peters, 145.

A trustee may recover in ejectment against his cestui que trust. Beach v. Beach, 14 Verm. 28.

6. When a person is bound to do a certain act, the omission of which would be a culpable neglect of duty, the performance of it will be presumed, unless the contrary is proved. Hartwell v. Root, 19 Johns. 346; Jackson v. Shaffer, 11 do. 516; Williams v. East India Comp., 3 East, 199; The King v. Hawkins, 10 do. 216.

The Opinion of the Court was delivered by CATON, J.^a1

There are three questions in this record, which demand our consideration, and the first is, whether the deed from Daniel Reece to John F. Darby was properly proved. “The officer before whom this proof was made certifies: “This day personally appeared,” etc., “Samuel L. McGill, a subscribing witness to the within deed, (who was to me made known by the oath of Isaac Prickett, a credible witness,) and who being by me, the said justice, duly sworn,” etc. The objection is, that it does not sufficiently appear that the person by whose testimony the proof was made, was a subscribing witness to the deed. When proof is made by a subscribing witness, the statute requires that “the judge or officer shall ascertain that the person who offers to prove the same, is a subscribing witness, either from his own knowledge or from the testimony of a credible witness.” According to the decision of this court in the case of Job v. Tebbetts, 4 Gilm. 152, upon the proof taken before Edward Hurst, we think it sufficiently appears, that Samuel L. McGill was a subscribing witness, from the testimony of a credible witness. In that case, the words used in the certificate are the same as here, except that it stated, “with whom I am personally acquainted,” instead of “who was to me made known by the oath of Isaac Prickett, a credible witness.” There are two ways in which we may be satisfied that the person proving the execution of the deed is a subscribing witness. One is by the personal acquaintance or knowledge of the officer who took the proof, and the other is by the oath of a credible witness. The one is as satisfactory as the other, and as legal a mode of identification. We should be at a loss to assign a reason for holding one certificate good and another bad, which are identical in terms, except as to the mode of identifying the subscribing witness, where both modes are equally legal. The proof of that deed was sufficient.

The next question is, whether the instrument referred to is a mortgage or a trust deed, and we are of opinion that it is the latter, and conveyed the absolute legal title to the trustee. It is unnecessary to quote authorities to show, that in construing deeds as well as other written instruments, it should be a primary object with the courts to ascertain from the face of the paper, the real intention of the parties, and to give effect to the instrument accordingly. In the introductory part of this deed, the grantee is described as John F. Darby, “as trustee of Richard H. McGill, of,” etc. The deed then recites, that on a previous day the grantor had executed a deed for the same premises to McGill to secure the payment of one thousand dollars, and that “from the terms and tenor of said deed, it is considered that the same only amounted to a mortgage, which would require the same to be foreclosed in obedience to law, to pay and satisfy the amount due, when in truth and in fact, such was not the intention of the parties to said deed, but the parties thereto had intended to make a deed of trust of the premises described in said deed, giving and granting to the trustee full power and authority to sell and convey the lands, tenements and hereditaments, as properly mentioned in said deed, without any authority or order of court. Now, therefore,” etc. The deed then recites an indebtedness from the grantor to McGill of one thousand dollars; and that for the purpose of securing the prompt payment on a...