Shackelton v. Sebree

• Decision Date: 30 September 1877
• Citation: 86 Ill. 616,1877 WL 9788
• Parties: ISAAC SHACKELTONv.WILLIAM M. SEBREE et al.
• Court: Illinois Supreme Court

86 Ill. 616

1877 WL 9788 (Ill.)

ISAAC SHACKELTON

v.WILLIAM M. SEBREE et al.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of DeKalb County; the Hon. THEODORE D. MURPHY, Judge, presiding.

Messrs. KELLUM & CARNES, for the plaintiff in error.

Mr. R. L. DEVINE, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error, several years before the death of his father-in-law, John S. Sebree, with the consent and by arrangement of the latter went into possession of the eighty acres of land in controversy. He improved it by building a house, sinking a well, building fences, and making other improvements to the amount of between $600 and $700. Two or three years after going into possession his wife died without issue, and he thereupon surrendered possession to Sebree, removing none of the improvements, and the latter had the benefit of the land thus improved during the remainder of his lifetime.

In April, 1873, Sebree died intestate, and under the statute his estate descended to his widow, two children, and a grandchild, according to the rules of descent and distribution. After Sebree's death, plaintiff in error placed on record a deed from Sebree to himself, for the land in controversy, bearing date September 21, 1870, purporting to have been duly acknowledged and certified by a proper officer. It contained covenants of warranty, but it contained this clause: “This deed not to take effect until after my decease--not to be recorded until after my decease.”

Defendants in error contend, first, that this deed is a forgery; second, that it is void because it is an attempt to convey a fee to commence in futuro, without any particular estate granted or reserved, to support it; third, it is in the nature of a testamentary paper, and as such is not so executed and authenticated as to become operative and valid. On the other hand, the first and last propositions are denied, and as to the second, it is contended that though there was no intervening estate created to support the remainder, still it operated as a covenant to stand seized to the use of the grantee.

A careful examination of the evidence in the record fails to show that the deed is a forgery. The justice of the peace who took and certified the acknowledgment, and two others, all swear they were present and saw Sebree execute the deed. And they give details and circumstances that carry conviction to our minds that it was executed at the time and in the manner they describe. Nor is their evidence overcome by the testimony of other witnesses who say Sebree was at another place twenty-five miles distant on the date of the deed. They are no doubt correct in their statement that they saw him at that other place, but all know that the most observing, with the most retentive memory, are exceedingly liable to be mistaken as to dates after years have passed, unless there were strong reasons for charging their memory with precise dates. No such motive seems to have existed here, as no particular interest or sufficient motive seems to have existed for special effort to remember the precise date. The witnesses on the other side have a general recollection of the year, the season of the year, that court was then in session, a particular recollection of the drawing and execution of the deed, but independent of its date, their remembrance of the precise date would no doubt have been indefinite and indistinct. There are but few matters upon which the memory of witnesses differ more than in regard to precise dates. Hence, however honest and intelligent witnesses may be, we should hesitate long in most cases before we would destroy the validity of a deed or other written instrument on their recollection of a particular date.

Nor do we see how a forgery could have been committed unless the three witnesses who swear to its execution had all entered into a conspiracy for the purpose, and there is no evidence to raise the slightest suspicion that they did. On the contrary, the circumstances all repel such a suspicion. What possible motive could Gilbert, the justice, or Muzzy, the constable, have, in entering into a conspiracy for the purpose of perpetrating such a crime? They are not shown to have any, the slightest, interest in doing so criminal an act. It is true, that the other witness who was present is the brother of plaintiff in...