Waggoner v. Clark

• Decision Date: 02 June 1920
• Docket Number: No. 12660.,12660.
• Parties: WAGGONER et al. v. CLARK.
• Court: Illinois Supreme Court

293 Ill. 256

127 N.E. 436

WAGGONER et al.

v.CLARK.

No. 12660.

Supreme Court of Illinois.

April 21, 1920.

Petition Stricken June 2, 1920.

Error to Circuit Court, Hardin County; Charles H. Miller, Judge.

Suit to quiet title by Joseph W. Waggoner and others against Thomas H. Clark and others. From a decree quieting title, defendant Thomas H. Clark brings error.

Affirmed.

Charles Durfee and John W. Browning, both of Golconda, James Watson, of Chicago, and Burrell Morris, for plaintiff in error.

Roedel & Roedel, of Shawneetown, for defendants in error.

STONE, J.

This cause comes to this court by writ of error to the circuit court of Hardin county by Thomas H. Clark, plaintiff in error, one of the defendants in said circuit court, to review a decree entered in said court quieting the title to the land of complainants, to wit, the northwest quarter of the northwest quarter of section 18, township 11 south, range 8 east, situated in the county of Hardin and state of Illinois.

The issues raised in this court by the assignmentsof error refer to that portion of the decree of the chancellor holding void a certain exception of one-half of all minerals underlying the surface of the above-described land, appearing in a certain deed from Charlotte Hamp and Henry Hamp, her husband, to complainant Louis Hamp, their son, under date of January 26, 1874, on the ground that said exception had been inserted or interlined in the deed after its delivery, and removing the exception and record thereof as a cloud upon the complainants' title; also that portion of the decree of the chancellor which sets aside as a cloud upon the complainants' title a certain proceeding in partition commenced on March 14, 1911, by plaintiff in error in said court and afterward by him dismissed without prejudice and without a hearing on the merits.

The deed is signed by Charlotte Hamp by mark, witnessed by W. J. Bank and James M. Isham, the latter being the justice of the peace who took the acknowledgment in the usual form required by statute at that time. In the certificate of acknowledgment the justice of the peace certified that Charlotte Hamp is sole owner and the wife of Henry Hamp. After the description of the land in question as well as of other lands conveyed by said deed appears the language, ‘except the timber on twenty acres in the northwest quarter of the northwest quarter on the west side, in township 11 south, range 8 east.’ The word ‘east’ appears near the righthand margin of the deed and a line is drawn diagonally from said word downward to near the left-hand margin, over that portion of the deed not used for description. On the first line below the description, ending in the word ‘east,’ near the left margin of the deed and extending to the right throughout the first line and intersecting the diagonal line and also occupying a portion of the second line under the description, appear the words, ‘one-half of all miniralien of all hundret & forty acer,’ being the language in dispute, which the chancellor decreed should be stricken from deed. The deed was filed for record in the office of the recorder of deeds of said county in Deed Record I, at page 552, on January 30, 1874. The record thereof was afterward destroyed by a fire when the courthouse in which the record was kept burned in the year 1884. On April 6, 1910, the deed was refiled and re-recorded, and then contained the language in dispute. It is stipulated by the parties that the grantors in this deed, Henry and Charlotte Hamp, are dead, and that the former died about 1880.

This cause was before this court in the case of Clark v. Waggoner, 283 Ill. 199, 119 N. E. 273, on a bill of review filed by the plaintiff in error, and the facts and issues and do not require a more complete statement and do not require a more complete statement here. The issue involved in this case is whether or not the interlineation in question in the deed from Charlotte and Henry Hamp, her husband, was made before or after the execution and delivery of the deed; it being practically admitted that the words referred to are interpolations or interlineations.

The principal assignment of error of plaintiff in error, who claims the minerals in these lands by deed from certainof the heirs at law of Charlotte and Henry Hamp, is to the ruling of the court in excluding a certain account book proved to have been kept in the handwriting of the grantor Henry Hamp, which book was sought to be introduced in evidence as a standard of handwriting for comparison; it being the contention of plaintiff in error that the insertion referred to was made by Henry Hamp before the execution and delivery of the deed, and that, the document being an ancient document, the alteration itself being ancient, and the deed being old and faded, and the insertion being apparently as old as the document, it was important that the account book in question be admitted for the purpose of establishing a comparison of handwriting, in order that it might be shown that the insertion was made by Henry Hamp while the deed was yet in the possession of the grantors. Under an act entitled ‘An act concerning proof of handwriting and to permit proof of handwriting to be made by comparison,’ approved June 23 1915, in force July 1, 1915 (Hurd's Stat. 1917, p. 1492), handwriting may be proved by comparison made by a witness or by the jury with writings which are admitted in evidence or treated as genuine or admitted to be genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the court. Sections 2 and 3 of said act provide for notice to the opposing side, with opportunity to examine the proposed standards before the same shall be admitted in evidence. Under this act the book in question was competent evidence, and it is claimed to be important evidence because of the fact that there was no other handwriting of Henry Hamp in the record with which a comparison might be made except his signature to the deed.

[2] Defendants in error contend that, while the book was properly admissible, yet, had it been admitted in evidence and had it established all that could be claimed for it by the plaintiff in error, that could not form a basis for reversing the decree in this case, for the reason that under the...