Sharp v. Thompson

• Decision Date: 30 November 1881
• Citation: 100 Ill. 447,39 Am.Rep. 61,1881 WL 10642
• Parties: LOUISA SHARPv.AMOS THOMPSON.
• Court: Illinois Supreme Court

100 Ill. 447

1881 WL 10642 (Ill.)

39 Am.Rep. 61

LOUISA SHARP

v.AMOS THOMPSON.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 21, 1881.Rehearing denied November Term, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Clinton county; the Hon. GEORGE W. WALL, Judge, presiding.

Messrs. BUXTON & WHITE, for the plaintiff in error.

Messrs. MURRAY & ANDREWS, for the defendant in error. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This is a writ of error brought to reverse a decree of foreclosure of a mortgage. The mortgage purports to convey a homestead, and to have been acknowledged before the deputy clerk of the circuit court of Clinton county.

It is objected that the acknowledgment is invalid, because the deputy clerk was not legally appointed such. It appears that he was only verbally appointed such deputy; that he was never sworn into office, nor executed any bond as deputy, but that he was acting as such deputy, and had taken other acknowledgments in the same manner.

The provision of the statute at the time (1867) was, “the clerk of the Supreme Court, the several clerks of the circuit and county commissioners' courts, may appoint deputies, who shall severally take an oath for the faithful discharge of the duties of their offices, and for whose conduct the principal clerk shall in all cases be responsible.” Rev. Stat. 1845, p. 395, sec. 6. The deputy clerk here was at least an officer de facto, and the principle is well settled that the acts of officers de facto are as valid and effectual, when they concern the public or the rights of third persons, as though they were officers de jure. Sullivan v. The State, 66 Ill. 75; Mapes v. The People, 69 Id. 528.

The mortgage purported to convey, among other property, also lots 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, being all of block 25, in Lower Carlyle. These numbered lots are not in block 25, and it is contended by plaintiff in error that it is these numbered lots which are conveyed by the mortgage, and not block 25. The evidence shows that the blocks in Lower Carlyle are consecutively numbered from one to thirty, and contain ten lots each, the lots in all the blocks being consecutively numbered from one to three hundred. Lots 21 to 30 inclusive are in block 3. The lots in block 25 are numbered consecutively from 221 to 230. It appears that the arrangement before the mortgage was made was that the mortgagor should give a mortgage on a house and certain lots in the town of Carlyle, being his residence in which he lived at the time, and that he was living at the time on block 25, in Lower...