Vance v. Schuyler

• Decision Date: 31 December 1844
• Citation: 1 Gilman 160,1844 WL 4066,6 Ill. 160
• Parties: JOHN VANCEv.ROBERT SCHUYLER et al.
• Court: Illinois Supreme Court

1 Gilman 160

6 Ill. 160

1844 WL 4066 (Ill.)

JOHN VANCE

v.ROBERT SCHUYLER et al.

Supreme Court of Illinois.

December Term, 1844.

EJECTMENT in the McDonough circuit court, at the May and October terms, 1842, brought by the defendants in error against the plaintiff in error, and tried before the Hon. STEPHEN A. DOUGLASS and a jury. Verdict for the plaintiffs below at each trial. Such of the facts as are material to the decision appear in the opinion of the court.

W. A. MINSHALL, for the plaintiff in error:

1. The deed from the auditor to S. B. Munn was improperly admitted, without other evidence in connection therewith. If a naked power, not coupled with an interest, is exercised, proof is necessary to show that every pre-requisite of that power was complied with. Williams v. Peyton's Lessees, 4 Wheat. 77; 4 Cond. R. 395.

2. So, also, was the deed from Moulton and others to the plaintiffs below, without any seal of the commissioner of deeds, or certificate of his official character, and proof of the execution of said deed. Jackson v. Colden, 4 Cowen 280, 281. The seal of a private court or person must be proved. 1 Starkie's Ev. 153; 1 Phil. Ev., Cowen & Hill's notes 385. As to the mode of authenticating commissioner's authority, in New York, see Laws of New York, of 1841, vol. 4, page 44, section 5. Our statute of 1829 will not aid it. For construction of statutes, see United States v. Fisher, 1 Cond. R. 422, 425.

3. The provision of the ninth section of the act of January 19, 1829, is peremptory, and not directory merely. The filing of the advertisements of sale is indispensable.

4. As to the law regulating new trials, see Jackson v. Laird, 8 Johns. 489; Same v. Crosby, 12 do. 354; Same v. Hooker, 5 Cowen 207.

O. H. BROWNING, N. BUSHNELL, and A. WILLIAMS, for the defendants in error.

SCATES, J.

Ejectment, brought by Schuyler and others against Vance. It was tried at the May term of the McDonough circuit court, in 1842, when the plaintiffs recovered a judgment, which was vacated and a new trial granted by the court. The cause was again tried, at the October term, 1842, and the jury again returned a verdict for the plaintiffs. The defendant entered several motions;--to vacate the judgment, and grant a new trial;--to arrest;--and a motion, predicated upon affidavits, to vacate the judgment and grant a new trial, under the 30th section of the act in relation to ejectment. The bill of exceptions contains these affidavits, and also several deeds, read in evidence by the plaintiffs; and a patent, and a deed offered in evidence by the defendant; upon which questions were raised at the trial, and preserved. So much of these as will present the questions raised, I will set forth in substance, in the order of the assignment of errors.

The plaintiffs read in evidence a deed from the auditor to S. B. Munn, for the land in question, bearing date the 8th day of November, 1833, which recited a sale of this land by the auditor, on the 8th day of January, 1831, for the taxes, interest, and cost chargeable thereon, for the year 1830; and without any other evidence in connection with it. This is assigned as the first error. This objection can not prevail. The sale was made under the act passed in 1827, and in 1829. The latter act provides how the land shall be advertised, when sold by the auditor. R. L. 525 § 9; Gale's Stat. 571. And in relation to sales made by the auditor, the same section provides, that “it shall not be necessary for any purchaser of lands, so sold for taxes, to obtain, keep, or produce any advertisement of the sale thereof; but his deed from the auditor of public accounts shall be evidence of the regularity and legality of the sale, until the contrary shall be made to appear;” with a proviso, “that no exceptions shall be taken to any such deed, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intentions of the legislature. This provision has repealed that rule of strict construction, applied to the exercise of naked powers uncoupled with an interest, in relation to this sale; and it requires us to take a liberal and fair view, upon exceptions taken to the sale, and throwing the burden of proof upon the objector, to allow only such as “apply to the real merits of the case.” This deed, then, was prima facie, sufficient for the plaintiffs, without other evidence connected with it, in relation to the sale.

In making out their chain of title, the plaintiffs read in evidence a deed from Charles F. Moulton and Casarina J., his wife, and Russell H. Nevins, to plaintiffs. The certificate of acknowledgment upon it commenced thus: “State, City, and County of New York, ss.” and was subscribed, “John Taylor, Commissioner of Deeds for City of New York.” The body of the certificate is a substantial compliance with the statute of this state as to the facts to be embodied in it. The second error assigned is in permitting this deed to be read without proof of its execution, or legal evidence of the official character of the commissioner of deeds. But this objection may not lie, for the statute has authorized acknowledgments to be taken or proved before “any commissioner to take acknowledgments of deeds,” when speaking of persons out of the state, and is silent as to any authentication of their official character. R. L. 137 § 1; Gale's Stat. 155. And we may not superadd thereto, or require more than the legislature thought fit. The less so, in this instance, as the act enumerates in the same connection, “any clerk of a court of record, mayor of a city, or notary public;” but who shall authenticate his character, “under his seal of office.” Justices of the peace are also enumerated. But one out of the state must be authenticated by the certificate of the “proper clerk,” that he “was a justice of the peace at the time of making the same.” And so, in like manner, in the state, by the county commissioners' clerk, when the land lies in a different county, where he is no justice and not known as such. I would note the fact that there is no law in this state that authorizes the appointment of a “commissioner” for that purpose; and so we must understand the law to mean those out of the state appointed for that object.

The defendant offered in evidence a patent from the general government to Spencer Nelson, bearing date 19th November, 1817, for the same land; and a deed from Nelson to James Shaw, dated 22d July, 1818. This last purported to be acknowledged as follows: “Lincoln, ss. Wiscassett, July 22d, 1818. Personally appeared before me, Seth Tinkham, notary public, by legal authority appointed and sworn, dwelling in Wiscassett aforesaid, Spencer Nelson, and acknowledged the above instrument in writing by him subscribed to be his free act and deed for the purpose therein mentioned, and requested that the same might be received and taken as such. And also made oath that he...