Stebbins v. Duncan

• Decision Date: 05 March 1883
• Citation: 108 U.S. 32,27 L.Ed. 641,2 S.Ct. 313
• Parties: STEBBINS v. DUNCAN and others
• Court: U.S. Supreme Court

108 U.S. 32

2 S.Ct. 313

27 L.Ed. 641

STEBBINS v. DUNCAN and others.

March 5, 1883.

[Syllabus on page 32 intentionally omitted]

[Statement of Case on pages 32-33 intentionally omitted] Geo. O. Ide and John W. Ross, for plaintiff in error.

[Argument of Counsel from pages 33-35 intentionally omitted] Thomas Dent, for defendants in error.

WOODS, J.

This was an action of ejectment, originally brought by William B. Morris, in the circuit court of the United States for the northern district of Illinois, against Howard Stebbins, the plaintiff in error, for the recovery of a quarter section of land, originally situate in Madison county, Illinois, but, when the suit was begun, situate in Stark county. Before the final trial of the cause, to-wit, on January 22, 1879, the death of the plaintiff was suggested, and the devisees named in the last will were made parties, as appears by the following entry upon the record of the court:

'Now come the parties by their attorneys, and Thomas Dent, Esq., the attorney of the plaintiff, suggests to the court the death of William B. Morris, and that Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge are the devisees of said deceased; and, on motion of the plaintiff's attorney, it is ordered by the court that said devisees, Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge, be made plaintiffs herein.'

The defendant pleaded the general issue. The cause was tried by a jury, who returned a verdict for the plaintiffs, upon which judgment was rendered in their favor for the lands in controversy. To reverse that judgment, the defendant in the circuit court has brought the case here upon writ of error. A bill of exceptions was taken upon the trial, from which the following statement of the case is made:

Disregarding the order in which the testimony was* intro- duced, and arranging it chronologically, the plaintiffs below, to prove title in themselves, offered the following evidence:

(1) An exemplification of a patent from the United States to one John J. Dunbar for the lands in controversy; (2) a certified copy of a deed for the same lands from John J. Dunbar to William Prout, dated January 6, 1818, said copy being certified to have been made February 3, 1875; (3) a certified copy of a deed for the same lands from William Prout to Joseph Duncan, dated May 2, 1834, and recorded in said county October 29, 1838; (4) certified copy of a decree in chancery in the United States circuit court for the district of Illinois, dated June 9, 1846, rendered in a cause wherein the United States were complainants and the widow and heirs of Joseph Duncan defendants, and of the proceedings under said decree by which the premises in controversy in this suit were sold to the United States; (5) certified copy of the deed to the United States under said decree for the same premises, made by William Thomas, commissioner, dated August 12, 1846, and recorded January 17, 1848; (6) certified copy of a deed for the same premises, dated December 28, 1847, and recorded June 5, 1848, to William W. Corcoran, executed by R. H. Gillett, solicitor of the treasury, in behalf of the United States; (7) certified copy of a deed for the same premises, dated December 20, 1867, and recorded March 12, 1868, from William W. Corcoran to William B. Morris; (8) certified copy of the will of William B. Morris and of the probate thereof, from which it appeared that Maria L. Duncan, Harriet B. Cooledge, and Helen L. Cooledge, the plaintiffs, were his residuary legatees.

To sustain the title, which the plaintiffs contended that they derived through these documents, they offered other evidence, which will be noticed hereafter, but they offered no evidence of the death of William B. Morris, the original plaintiff, since the certified copy of his will and of the probate thereof, and the letters testamentary issued thereon.

The defendant Stebbins, to show title in his lessor, offered in evidence the following title papers:

(1) An exemplification of a patent by the United States to John J. Dunbar, dated January 6, 1818, for the lands in controversy; (2) a certified copy from the recorder's office in Stark county, Illinois, in which county the land is situate, of a deed, dated January 6, 1818, from John J. Dunbar to John Frank, conveying said land in fee, and recorded in said county June 18, 1870; (3) other title deeds, by which the title passed from the heirs of John Frank to Benson S. Scott; (4) the stipulation of plaintiffs that Stebbins, the defendant, was in possession of the land in controversy at the commencement of the suit under said Benson S. Scott as his tenant only, and, at no time, under any other claim.

No exceptions were taken by the plaintiffs to the introduction of these title papers by the defendant.

The real contest in the case was between the title of the plaintiffs deduced through the deed of Dunbar to Prout, and their subsequent muniments of title put in evidence, and the title of defendant derived through the deed of Dunbar to Frank, and the subsequent conveyances put in evidence by him.

The defendant was in possession of the premises sued for. His evidence, which was not excepted to, gave him a prima facie title, and, unless the plaintiffs showed a better title, they should not have recovered the lands in controversy. It is, therefore, only necessary to consider the title which the plaintiffs claim to have shown in themselves. The errors assigned all relate to the admission by the court below of the evidence offered by the plaintiffs to sustain their title, and the charge of the court to the jury upon the effect of that evidence. These assignments of error we shall now proceed to consider.

The court admitted as evidence tending to prove the death of William B. Morris, the original plaintiff, the duly-certified copy of his will, and of the probate thereof in the probate court of the county of Suffolk, in the state of Massachusetts and of the letters testamentary issued thereon, and the court charged the jury, in effect, that this evidence, uncontradicted, was sufficient to show the death of Morris. The admission of this evidence and the charge of the court thereon are assigned for error.

Whether the evidence objected to was or was not competent and sufficient to prove the death of Morris, it was clearly competent, the death of Morris being proved, to show title in the plaintiffs. The objection to its admissibility must, therefore, fall, if there was other evidence to show prima facie the death of Morris. We think that the suggestion in the record of the death of Morris, and the order of the court making his devisees parties, was sufficient for this purpose.

Section 10 of chapter 1 of the Revised Statutes of Illinois, P. 94, (Hurd, 1880,) provides that 'when there is but one plaintiff, petitioner, or complainant in an action, proceeding, or complaint in law or equity, and he shall die before final judgment or decree, such action, proceeding, or complaint shall not, on that account, abate if the cause of action survive to the heir, devisee, executor, or administrator of such decedent; but any of such to whom the cause of action shall survive may, by suggesting such death upon the record, be substituted as plaintiff, petitioner, or complainant, and prosecute the same as in other cases.'

The suggestion of the death of Morris, the sole plaintiff, was made in this case, as the record shows, by counsel for the devisees, both parties being present, and the court made the order, without objection, that the devisees be made plaintiffs in the case. We think that this suggestion, made without objection, and the order of the court thereon, settles prima facie, for the purposes of this case, the fact of the death of the original plaintiff. The statute provides upon whose suggestion of the death of a sole party plaintiff the court shall make his heir or devisee, etc., plaintiff in his stead. It certainly cannot be the fair construction of the statute that a party may stand by and see the suggestion of the death of the opposing party entered of record, and his heir or devisee substituted in his stead, and upon final trial require further proof of the death, at least without some notice of his purpose to raise that particular issue. The death of the plaintiff, after the order of the court, may be considered as settled between the parties for that case, unless some motion is made or issue raised on the part of the defendant by which the fact of the death is controverted. We have been referred to no decision of the supreme court of Illinois where a different rule has been announced. In the case of Milliken v. Martin, 66 Ill. 17, cited by counsel for defendant, the court merely decided that where a party plaintiff had died and his heirs were substituted in his place, they must prove that the person under whom they claimed was seized of the title and that they were his heirs. But the report of the case clearly shows that the point now under consideration was neither decided nor touched. We think, therefore, that the ruling and charge of the court below did not prejudice the defendent.

The next assignment of error relates to the admission in evidence by the court of the certified copy of the deed from Dunbar to Prout, and the testimony offered by the plaintiff to sustain such copy. The deed purported to be a conveyance, with covenants of general warranty, by Dunbar to Prout, of the land in controversy, for the consideration of $80. It recited that Dunbar was the patentee thereof, and set out the patent in full. The following is a copy of the in testimonium clause of the deed, of the signatures of the grantor and witnesses, the acknowledgment, affidavit of the grantor of his identity, his receipt for the purchase money, memorandum of registration, and certificate of the recorder of deeds for Madison county, Illinois:

'In witness of all the foregoing I have hereunto affixed my hand and seal, at Washington...