Wilson v. the South Park Commissioners.

• Citation: 1873 WL 8544,70 Ill. 46
• Parties: ROBERT L. WILSONv.THE SOUTH PARK COMMISSIONERS.
• Decision Date: 30 September 1873
• Court: Supreme Court of Illinois

70 Ill. 46

1873 WL 8544 (Ill.)

ROBERT L. WILSON

v.THE SOUTH PARK COMMISSIONERS.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

Messrs. MILLER & FROST, for the appellant.

Messrs. AYER & KALES, and Mr. J. V. LeMOYNE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant brought ejectment, for the recovery of forty acres of land, situated in Cook county, being the west half of the east half of the north-west quarter of section 15, township 38 north, range 14 east of the third principal meridian. On the trial below, he introduced what was treated by the parties as evidence of title in fee. Whereupon, the defendant below introduced evidence of a trust deed executed by appellant to one James Otis, dated December 24, 1857, which was duly recorded on the 29th of the same month, which was given to secure appellant's promissory note, of the same date, for $1500, payable in six months, with ten per cent interest. The deed contained a power to sell, on default of payment, at auction, to the highest bidder, for cash, after having advertised the sale for ten days in a newspaper published in the city of Chicago, and to execute and deliver a deed to the purchaser; also, evidence of a sale by Otis, the trustee, to one Fletcher, dated on the 14th of April, 1859. The deed from the trustee contained a recital that all of the requisites imposed by the trust deed had been complied with in making the sale, after a default in payment of the note. To overcome this evidence, appellant introduced himself as a witness, and testified that the trust deed, when acknowledged and delivered by him to Wheeler, to be delivered to the person who might loan the money, was a printed blank, having neither grantee's name, a description of the land, the consideration, nor, in fact, anything written therein but the name of himself and his wife. In his statement, he is corroborated by Wheeler, Schenk and Coblentz. On the other side, James Otis and L. B. Otis swear unequivocally that the blank was filled up complete by James before it was executed, and sent back to Sterling for the purpose, and came back signed and acknowledged, before the money was loaned or the deed received. They both testify that Wheeler first presented a deed signed in blank, which they positively refused to receive. Waughop swears he had occasion to examine the original deed, and that it was in the handwriting of James Otis.

From this evidence, we are inclined strongly to believe that the deed was filled up and complete when it was delivered. That it should have been, would only be according to the almost uniform course of business; and to have been delivered in blank, would be strong evidence that a gross and palpable fraud was intended by the parties, which would have rendered each and all of the parties liable to a suit for any and all damages resulting from the fraud; and we can hardly suppose that all the persons engaged in this transaction, saying nothing of common honesty, would be so reckless of their interest as to incur such a liability to the defrauded purchaser, as to execute, deliver and act under such an instrument. Again, we could not expect any but the most reckless, if not depraved, to fill up such blanks in the deed without a power of attorney, thus incurring the hazard of a prosecution for forgery. L. B. Otis was a lawyer of experience, and had for several years been a circuit judge in a sister State, and it is not reasonable to suppose that he would have been so ignorant as not to know that it was criminal, without authority, to fill the blanks in the deed. Even if appellant had verbally authorized Wheeler to fill the blanks, still Judge Otis must have known the power would be insufficient, and would render the deed void, and in case of a criminal prosecution, he would, in all probability, have found it difficult to prove the verbal authority.

Again, L. B. Otis testifies that he received a letter, purporting to have been written by appellant, and postmarked at Sterling, asking for an extension of time for payment, and on the payment of six months' interest by Wheeler & Co., the time was extended. As to such a letter, appellant swears he has no recollection of having written it.

We can hardly suppose that intelligent business men would transact business so recklessly, especially after being informed by Otis that a deed thus altered would be void. There must have been two deeds presented, and these witnesses must have had the first in their mind when they testified; and as to the evidence of Coblentz, we do not think it entitled to any great weight, as he swears that he took the acknowledgment to the blank, and that Mrs. Wilson was not...