Smiley v. Fries

• Decision Date: 29 September 1882
• Citation: 1882 WL 10431,104 Ill. 416
• Parties: MARY SMILEYv.GEORGE FRIES.
• Court: Illinois Supreme Court

104 Ill. 416

1882 WL 10431 (Ill.)

MARY SMILEY

v.GEORGE FRIES.

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 29, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. WILLIAM C. KUEFFNER, for the appellant:

The deeds between the tenants in common, Pensoneau and Kraft, having been executed, acknowledged, and filed for record, at the same time, must be construed together as one entire transaction. Kruse v. Prindle, 8 Or. 158; White v. Breson, 14 Ohio St. 339; Thompson v. McClenachan, 25 Miss. (S. & M.) 110.

If A, being the owner of a piece of land, conveys it to B, and B simultaneously, by warranty deed, conveys it back to him, the title will remain unchanged. This view is strengthened by the consideration that Pensoneau undertook, by warranty deed, to convey the whole of this estate, when the evidence shows he owned only three-fourths. Any title acquired by him subsequently must inure in favor of his grantee, and those claiming under him.

Messrs. HAY & KNISPEL, for the appellee:

The deed to Kraft was improperly admitted, as it fails to describe the land with sufficient certainty. The description is: “That part of the north-west quarter, etc., lying outside of the town, containing 34 81/100 acres.” This conveyance is void. Carter v. Barnes, 26 Ill. 454.

When there is no priority of registry, the deed oldest in date takes preference, and the date of the deed is prima facie evidence of the time of its execution. Meek v. Fowler, 14 Ark. 29; Costigan v. Gould, 5 Denio, 290; Noakes v. Martin, 15 Ill. 118; Deininger v. McConnel, 41 Id. 227.

Where an acknowledgment bears date subsequent to that of the execution of the deed, it does not rebut the presumption that the deed was delivered on the day it bears date. Deininger v. McConnel, 41 Ill. 227; Darst v. Bates, 51 Id. 439.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellant brought ejectment, against appellee, in the court below, for a piece of land, particularly described in the declaration, and recovered a judgment only for the undivided three-fourths thereof. The sole controversy is in reference to the construction of two deeds affecting the land--one by Pensoneau to Kraft, and the other by Kraft to Pensoneau.

A cross-error assigned by appellee in reference to the description of the property conveyed by the deed of Pensoneau to Kraft, first demands our attention. It is contended the description in that deed is too indefinite and uncertain to convey the property in dispute, or any interest therein. The part of the description commented on is as follows: “Also another piece or parcel of land, being all that part of the north-west quarter of the south-west quarter of section 27, lying outside of the town, containing 34 81/100 of an acre.” Taken by itself, undoubtedly, this is not sufficient. But the clear implication from the use of the words “the town,” is, that some particular town, before referred to, is meant; and referring in the description to property previously described, we find a large number of lots in the “town of Athens, St. Clair county, State of Illinois,” described, and the plat of that town referred to as a fixed monument. The word “town” does not otherwise occur. So we know, to a moral certainty, that “that part of the north-west quarter of the south-west quarter of section 27, lying outside of the town,” means outside of the town of Athens, in St. Clair county. The town plat is a fixed monument, and any surveyor, by going to it, can fix, with precision, the location of this property. This court has ruled that any description by which the property might be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient. Colcord v. Alexander, 67 Ill. 581; Chicago Dock and Canal Co. v. Kinzie, 93 Id. 415; Fowler v. The People, Id. 116.

The deed from Pensoneau to Kraft is a warranty deed, bears date June 12, 1837, and conveys the whole title. The deed from Kraft to Pensoneau is a warranty deed, also, bears date June 10, 1838, and conveys the undivided one-fourth. Both deeds were acknowleged October 30, 1838. The delivery of the deed will be presumed to have been on the day it bears date, and in the absence of other proof the subsequent date of the certificate of acknowledgment can not overcome this presumption. Deininger v. McConnel, 41 Ill. 227; Jayne v. Gregg, 42 Id. 413; Blake v. Fash, 44 Id. 302; Hardin v. Osborn, 60 Id. 93; Hardin v. Crate, 78 Id. 533.

On the face of the deeds, therefore, the presumption is the deed from Pensoneau to Kraft is the elder.

But counsel insist the year 1837, in the deed of Pensoneau to Kraft, was a mistake,--that the year in which that deed was executed was 1838,--and this, he insists, is shown by a memorandum to the left of, and below, the...