The Calumet v. Russell

• Decision Date: 30 September 1873
• Citation: 68 Ill. 426,1873 WL 8377
• Parties: THE CALUMET AND CHICAGO CANAL AND DOCK CO.v.CORNELIA RUSSELL.
• Court: Illinois Supreme Court

68 Ill. 426

1873 WL 8377 (Ill.)

THE CALUMET AND CHICAGO CANAL AND DOCK CO.

v.CORNELIA RUSSELL.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county.

This was a petition for dower, filed by Cornelia Russell against the Calumet and Chicago Canal and Dock Company. The facts of the case are fully stated in the opinion.

Mr. MILTON T. PETERS, for the appellant.

Mr. B. S. MORRIS, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

Cornelia Russell, claiming to be the widow of John B. F. Russell, deceased, filed in the circuit court of Cook county her petition for dower in certain lands therein described, of which she alleged her husband was seized in fee during coverture, and who died intestate on the 3d day of January, 1862; that appellants, the Calumet and Chicago Canal and Dock Company, claim title to the premises in fee, and that she had demanded of them her dower in the same, and that they were the only party in interest besides herself. A demurrer to the petition was sustained. The petition was amended at the March term, 1872, to which the defendants filed their answer, denying the seizin of Russell at the time of his death, and denying her right to dower. The answer also sets up the act of 1839 in bar of a recovery of dower. A general replication was put in to the answer, testimony taken, and at the May term, 1873, a decree passed in favor of the petitioner, as prayed. The court also decreed petitioner the sum of three hundred and seventy-six dollars as damages for the delay and refusal of defendants to assign the dower. To reverse this decree the defendants appeal.

It appears the land in which dower is claimed was granted by patent from the United States to H. O. Stone, and to H. O. Stone and A. McGregor, who, by deeds duly acknowledged and recorded, one dated May 30, 1836, and the other dated June 2, 1836, conveyed the same to John B. F. Russell.

On the 30th May, 1837, these lands were conveyed by deed of that date purporting to have been executed by John B. F. Russell and the petitioner, his wife, to Josiah S. Breese, for the consideration of fourteen hundred dollars, which deed was duly recorded June 3, 1837.

The deposition of the petitioner was taken in the cause on the 1st of May, 1873, in which she testifies that her husband died on the 3d day of January, 1861. She was married to Russell in 1832, and lived with him to the time of his death, in Chicago the most of the time. Since his death she has lived part of the time in New York and part of the time in Chicago, being at Chicago every year or two from a third to half a year. She states she had the two deeds to her husband for these premises, which, in the spring of 1871, she placed in the hands of her attorney, a Mr. Ewing. At the time of the fire in October, 1871, they were in the hands of her attorneys, Smith, Upton & Williams, who state, as she testifies, that they were burned. She further testifies her husband sold this land to J. S. Breese; that she could not have been a party to this deed, as she was not in Chicago at the time; thinks the deed was for all the land previously described; thinks it was in the spring of 1837, as well as she can recollect; thinks she never joined her husband in executing a deed for these lands. On her cross-examination, she says she thinks she has seen the deed from her husband to J. S. Breese; thinks she had it with the papers in the hands of Smith, Upton & Williams, and she had seen a memorandum of it among old papers as having been sold to J. S. Breese. Her recollection is, that she did not join with her husband in the execution of that deed to Breese; she has no recollection of it; was not in Chicago in the spring of 1837, at the time of its execution; she was with her parents in Alexandria, Va., who lived there, and her husband was in Chicago. It appears appellee's deposition was retaken on the 8th of May, 1873, in which she testified that, in the spring, or early in the summer, of 1871, she examined the record of the acknowledgment of the deed from her husband to J. S. Breese, and the deed--it was written in a pale and an old looking writing, as though it had been written a long time; the certificate to that deed showed at the first glance an alteration, an attempt to alter it; the certificate read, the contents and meaning of said “husband” were fully explained and made known to her; over the word “husband” was written “deed,” with bluish-black ink, and in an entirely different handwriting from that of the deed; the last letter of the word “deed” written above the word “husband” was scratched, as though the ink from the pen was nearly if not quite exhausted; it appeared to have been done recently, certainly within a year; it was in one of the books of record in the recorder's office of Cook county. She then reiterates the statement that, in the months of March, April, May and June, she was in Virginia with her parents, and her husband in Chicago.

Her solicitor then propounded this interrogatory, without objection from the other side: “State whether you were or not positive that you never signed or acknowledged the original deed of John B. F. Russell to Josiah S. Breese, referred to in your direct examination or cross-examination?” “I am very positive that I never signed it. I believe that I have never seen it.” She further testified she did not know William V. Smith, the justice of the peace before whom the acknowledgment purports to have been made.

The son of petitioner, Cornelian P. Russell, deposed, that the deed from Russell to Breese was not among the deeds his mother had deposited with Ewing, and which he received from Ewing and delivered to his mother.

The certificate of the justice of the peace states that “John B. F. Russell and Cornelia, his wife, personally known, etc., appeared and acknowledged execution, etc.; the said Cornelia was examined separate and apart from her said husband, and the contents and meaning of said ‘husband’ were fully explained and made known to her by me, and she acknowledged that she executed the same and relinquished her dower to the premises therein described, freely and voluntarily, without fear or compulsion of her said husband.” This, it appears, was taken from letter press copies of abstract of Shortall & Hoard by Handy, Simmons & Co., successors to Chase Bros., Shortall & Hoard and Jones & Sellars, on the 9th of May, 1873.

These are all the facts of any importance in the cause, in the view we are disposed to take of it. The testimony of Mrs. Campbell, going to show only that she saw the petitioner in Philadelphia in April, 1837, and Mrs. Brown, does not show the petitioner was not in Chicago on the 30th day of May, 1837, the date of the deed to J. S. Breese, and which it is claimed she duly acknowledged.

The case stands alone upon the unsupported testimony of appellee of physical inability, by reason of her absence on the 30th day of May, 1837, in which absence she is not corroborated by any witness, to execute and acknowledge the deed in question. The question is thus again presented to this court, shall the uncorroborated testimony of a grantor be allowed to prevail over the solemn act of an officer appointed by law to take the acknowledgment of deeds, and who has certified, under the solemn sanctions of his oath, that he did take the acknowledgment?

This question was before this court at the September term, 1872, and received our most serious consideration, and we then said we had no hesitation in answering the question; that the certificate must prevail over the unsupported testimony of an interested party, otherwise there would be but slight security in land titles; that public policy demanded such a rule, when no fraud or combination is alleged or proved. The magistrate, in taking the acknowledgment, acts judicially. A duty is imposed upon him by the law of ascertaining the truth of the matter about which he is to certify. Parties act on the faith of his certificate, and in the absence of fraud and collusion, his certificate must be entitled to the fullest credit, only to be overcome by the strongest and most unequivocal testimony. Lickmon, Exr. v. Harding, 65 Ill. 505.

A reference is made in the opinion to Graham v. Anderson et al. 42 Ill. 514, where it was held, in an action of ejectment, that parol evidence was not admissible to impeach a certificate of acknowledgment to a deed. The certificate of the officer as to the acknowledgment must be judged solely by what appears on the face of the certificate, and if that is in substantial compliance with the statute, it ought not to be impeached except for fraud or imposition.

Deplorable indeed would be the condition of land titles in this State, and especially in the city of Chicago, where land records have been destroyed by fire, and original deeds also, if a party to one of such deeds could be permitted to allege its non-execution by him, against the certificate of the judge taking it, who may be dead, and his testimony unsupported by any other evidence.

Much stress was placed by appellee's counsel, in his oral argument, on the asserted fact Mrs. Russell was not in Chicago at the date of the deed and of its acknowledgment, but there is only her own unsupported testimony of this fact of absence, and shall that prevail over the solemn official act of a judicial officer that she was personally present before him? The petitioner was then sailing upon a summer's sea, enjoying the present, taking no thought of the future, and accommodating herself, as she should do, to the business and wishes of her husband. Doubtless she does not remember one-half the deeds she thus executed and acknowledged, and now that all original evidence has been destroyed, shall she be permitted to claim an interest in land to which she once solemnly surrendered all claim? Shall her statement, that she was absent, prevail over the more solemn statement...