Rigg v. Cook

• Decision Date: 31 December 1847
• Citation: 9 Ill. 336,1847 WL 3866,4 Gilman 336,46 Am.Dec. 462
• Court: Illinois Supreme Court
• Parties: RACHEL RIGGv.JOHN COOK, who sues by his next friend, A. G. Edwards.

4 Gilman 336

9 Ill. 336

1847 WL 3866 (Ill.)

46 Am.Dec. 462

RACHEL RIGG

v.JOHN COOK, who sues by his next friend, A. G. Edwards.

Supreme Court of Illinois.

December Term, 1847.

EJECTMENT, in the St. Clair circuit court, brought by the appellee against the appellant, and heard before the Hon. GUSTAVUS P. KOERNER and a jury, at the May term, 1847. Verdict and judgment for the plaintiff.

The evidence and instructions on the trial in the court below, are stated in the opinion of this court.

W. H. UNDERWOOD, for the appellant.

1. The four militia claims mortgaged by Hosea Rigg and wife to Perry, were confirmed under an act of congress of March 3d, 1791, the sixth section of which authorized the governor of the northwest territory to make a grant of not exceeding one hundred acres of land, to certain persons who had done military duty at Vincennes, to be laid in such form and place as said governor should direct. Public Land Laws, etc. Part I, 42. The claims in question were unlocated grants at the time of the making of the mortgage in question. Afterwards, by an act of congress of February 20th, 1812, commissioners were appointed to inquire into the validity of claims derived from conformations of the governors under the above act. Ib. 198, § 1. Afterwards, on the 16th day of April, 1814, an act of congress was passed, confirming the claims in question among other claims, setting apart a district for the same to be entered, and allowing persons having such unlocated claims to enter lands therein, by giving in exchange the old confirmations. Ib. 244-6, §§ 2, 3, 4. 6.

The mortgage was given of claims which were inchoate, and were chattels real (5 Johns. Ch. R. 227) and, at the time it was given, it was presumed from the description in the mortgage, that it would have been located under the act of 1791. The fact that the mortgaged claims were exchanged afterwards under a subsequent act of congress, did not enable the mortgagee or his representatives to proceed at law against the property taken in exchange for the mortgaged chattels. 3 Gilm. 463; 13 Peters, 498, 450. The foreclosure at law only transferred the title of the mortgagor in the mortgaged property at the time of the execuion of the mortgage. State Bank v. Wilson (9 Ill. 57) 4 Scam. 364.

2. The execution against Rigg and wife ought not to have been admitted in evidence, because it varied from the judgment in names of parties. Williams v. Claytor, 1 Scam. 505; Blanchard v. Blanchard, 3 Iredell, 107; and because the property directed to be sold is uncertain, and the execution, therefore, void. Fitch v. Pinkard, 4 Scam. 83. To make a judicial sale valid, there must be a legal judgment, and an execution authorized by such judgment against the property sold. Curtis v. Doe, Bre. 100; Hinman v. Pope, 1 Gilm. 136; Atkins v. Hinman, 2 do. 448.

3. The mortgage not being of the land in question, the title afterwards acquired in 1814 and perfected by patent in 1840 in Rigg, does not enure to the benefit of the purchaser on the mortgage. By the common law, a subsequent title only enures where there is a warranty of title to the particular land. 11 Ohio, 253; 1 Cowen, 616; 9 do. 18; 1 Wend. 502. Our statute in relation to titles enuring, in force July 1st, 1827 (long after this mortgage was made and foreclosed), only applies to a case where a grantor conveys in fee simple absolute. § 7.

4. The patent to Rigg in 1840 is conclusive evidence of title in him at that time, and merges all previous equities in a court of law. 13 Peters, 498, 450, 517.

5. The court below erred in permitting Davis to testify who had the control of Gov. Edwards' real property after his death; that is a question of law. And also who administered upon his estate; that should have been proved by the records of the probate court. Williams v. Jarrot, 1 Gilm. 129.

6. The statements made by Rigg at the time of paying rent were admissible as a part of the res gestæ. 1 Greenl. Ev. 123, §§ 108-9; 1 Starkie's Ev. 36; 2 J. J. Marsh. 383. The payment of rent, as rent, is always open to explanation. Chitty on Con. 260; 1 Eng. Com. Law R. 355.

7. The doctrine of estoppel is construed strictly, and must be certain to a certain intent. 1 Greenl. Ev. 26, § 22. By the common law, a tenant is not estopped from denying the title of his landlord, except a tenant by indenture. The latest decisions are, that only a tenant by indenture and one who enters upon land under his landlord's title, is estopped from denying the landlord's title. 2 Smith's Leading Cases, 472; 2 Thomas' Coke, 331; 7 Wend. 403; 12 do. 108; 1 Greenl. Ev. § 25.

L. TRUMBULL, for the appellee.

1. The witness, Davis, was not asked who administered upon the estate of N. Edwards, and his statement that Mrs. Edwards was executrix was uncalled for and wholly immaterial, as the will of said Edwards, also in evidence, established that fact. Davis was required to state, and did testify all that Rigg said about the payment of rent and explanatory thereof, and the refusal of the court to permit said witness to state what Rigg told him upon other subjects, was right.

II. By the payment of rent and the mortgage with covenants of warranty, Rigg was estopped from disputing plaintiff's title. 3 Peters, 48; 1 Greenl. Ev. § 24.

III. The militia claims were real estate. 15 Peters, 93. A title to land becomes a legal title when confirmed, and such confirmation is a higher evidence of title than a patent. 2 Howard's (U. S.) R. 344.

A confirmation to the original claimant and his legal representatives enures by way of estopped to the grantee of the original claimant. 1 Ohio Cond. R. 181, 487; 5 Ohio, 337; 1 Ld. Raymond, 729; 12 Johns. 204; 4 Bibb, 436; Adams' Ej. 47, 48, and 306 and notes. 2 Gilm. 541; 4 Peters, 85.

The patent to Rigg can not be construed to operate against his grantee. 2 Howard's (U. S.) R. 316, 344.

IV. The generalty of the objection made by defendants below to the admissibility in evidence of the record and proceedings upon the foreclosure of the mortgage, precludes the party from pointing out any specific objections in this court.

A general objection to the introduction of testimony is vague and nugatory, and without weight in an appellate court. Camden v. Doremus, 3 Howard's (U. S.) R. 530. If it were admisisble to raise the objections at this time, they would not be tenable. There is no variance in parties or amount between execution and judgment when carefully examined.

All questions arising on judicial sales, when their validity is questioned in an ejectment suit, must be those of authority, not irregularity, or error in awarding, executing or confirming process. 1 Baldwin's C. C. R. 271, 272.

The regularity of the execution can not be questioned collaterally. Buckmaster v. Carlin, 3 Scam. 111; Swiggart v. Harber, 4 do. 364; Voorhies v. U. S. Bank, 10 Peters, 474.

V. Defendant's right to poll the jury was waived by the agreement of counsel dispensing with the further attendance of the jury; at all events, it is matter of discretion. 2 U. S. Dig. 696, § 296.

Opinion of the court by TREAT, J.

This was an action of ejectment, commenced in the St. Clair circuit court, on the 23d of October, 1845, by John Cook against Rachel Rigg, for the recovery of the south east fractional quarter of section twenty three, and the north fractional half of section twenty six, in township one north of range eight west, containing three hundred and thirty nine acres, and eighty five hundredths of an acre.

On the trial before the jury, the plaintiff read in evidence four several deeds of assignment of military claims from Jean B. Robillard, Michael Chartran, Charles Lefoevre, and Regis Martin to Jean F. Perry, bearing date in 1803, also a warranty deed, for the consideration of $800, from Perry and wife to Hosea Rigg, for the four militia claims, dated the 2d of May, 1808; also a mortgage from Rigg and wife to Perry, bearing date the 3d of May, 1808, in which the mortgaged premises are thus described: “all those four several tracts or quantities of one hundred acres of land, which, by a law of the United States, were severally granted to Michael Chartran, Charles Lefoevre, Regis Martin, and Jean Baptiste Robillard, as being militia men in the Illinois country, on the first day of August, one thousand seven hundred and ninety, and had done militia duty therein, and who, by several deeds recorded in the recorder's office, had conveyed the same to said Jean F. Perry, and which the said Jean F. Perry conveyed to the said Hosea Rigg, in fee simple by deed dated the second instant, and which said four hundred acres of land are laid in the improvement of the said Hosea Rigg, where he now resides, at Turkey Hill aforesaid,” and which mortgage was given to secure the payment of $1544, and contained a covenant of general warranty. The plaintiff then proved by the certificate of the commissioner of the general land office, that the claims of one hundred acres each were confirmed to Jean F. Perry, as the assignee of Robillard, Chartran, Martin and Lefoevre, on the 15th of January, 1813. He then introduced a certificate of the register of the land office at Kaskaskia showing that Hosea Rigg did, on the first day of October, 1814, enter the south east fractional quarter of section twenty-three, and the north fractional half of section twenty-six, in township one, north of range eight west, which contain by the certificate of Elias Bancroft, deputy surveyor, three hundred and thirty-nine acres, and eighty-five hundredths of an acre, and paid for said fractional quarter and fractional half of sections aforesaid, with his confirmed unlocated claim to three hundred and thirty-nine acres, and eighty-five hundredths of an acre, being the whole claim of Jean B. Robillard of one hundred acres, the whole of the claim of Regis Martin of one hundred acres, the whole of the claim of Michael Chartran of one hundred acres, and part of the claim of Charles Lefoevre of one...