Young v. Lorain

• Decision Date: 30 June 1850
• Citation: 1 Peck 624,52 Am.Dec. 463,1850 WL 4295,11 Ill. 624
• Court: Illinois Supreme Court
• Parties: ALEXANDER YOUNG et al.v.JOHN LORAIN et al.

11 Ill. 624
1850 WL 4295 (Ill.)
52 Am.Dec. 463
1 Peck (IL) 624

ALEXANDER YOUNG et al.
v.
JOHN LORAIN et al.

Supreme Court of Illinois.

June Term, 1850.

Error to Jo Daviess County Court.

[11 Ill. 625]

This suit was commenced in the circuit and taken by change of venue by consent to Jo Daviess county court. Heard before Hugh T. Dickey, judge, and a jury, at January term, A. D. 1850. Declaration with three counts. The first count sets forth the seizin in fee of said Alexander Young and Elizabeth his wife, of the one undivided half, in the right of the said wife, of the north half of lot five, and south half of lot six, both in block twenty-nine, on the east side of Fevre river, in the city of Galena, county of Jo Daviess, and state of Illinois; and also the seizin in fee of said Julia Ann Bates, of the one undivided half of said north half and south half of said lots five and six--dispossession by the defendant, and unlawful withholding, etc. The second count is a several count, by Young and wife, setting forth the possession of the one undivided half of said north half of lot five and south half of said lot six, by said Young and wife--a dispossession and withholding by the defendant; that the said Young and wife claim the said undivided half of said lots in fee,

[11 Ill. 626]

in right of the said wife, Elizabeth. The third count is a several count, by Julia Ann Bates, setting forth the possession of the one undivided half of said north half of lot five and south half of said lot six, by said Julia Ann Bates--a dispossession and withholding by defendant; that said Julia Ann claims the one undivided half of said north half of said lot five and south half of lot six in fee.

Plea of the general issue and similiter. Francois Marchildon made a party, by a suggestion of his marriage with Julia Ann Bates.

Evidence on the part of the plaintiff showed a patent from the United States, granting to Elizabeth and Julia Ann Bates, heirs at law of Nehemiah Bates, deceased, according to the act of congress, etc., said north half of lot number five and south half of said lot six, in block number twenty-nine, among other lots; which said lots had been purchased by said Elizabeth and Jane Ann, and granted to said E. and J. A., their heirs and assigns forever, as tenants in common, and not joint tenants. Patent dated 12th September, 1845; which was admitted by the court as evidence. Proof was introduced, showing that Elizabeth Young and Julia Ann Marchildon were the heirs at law of Nehemiah Bates.

Defendant's counsel then admitted that said halves of said lots five and six, at the time of the service of the declaration and notice, were vacant and unoccupied lots, and claimed by defendant in fee simple.

On part of defendant, Richard Seal testified--he is clerk of the county court of Jo Daviess county--keeper of the records of the probate court. He produced one of the records of said late probate court, of its acts, etc., and testified that the entries on pages seventy-one and seventy-two were in the handwriting of Elijah Charles, who was probate justice during the year 1840, and at date of said entries on pages seventy-one and seventy-two, signed “Elijah Charles;” that said signature is the proper signature of said Charles; that said Charles is now deceased. Defendant offered in evidence said entry; which is as follows, to wit:

“At a special term of the court of probate, held at the court house, in Galena, and county of Jo Daviess, and state of Illinois, on the 23d day of May, 1840, the following proceedings were

[11 Ill. 627]

had, to wit: Present Elijah Charles, probate justice of the peace in and for said county. Robert B. M'Dowell, heretofore appointed guardian for Elizabeth and Julia Ann Bates, minor heirs of Nehemiah Bates, deceased, personally appeared in open court, and tendered, in writing, the following resignation: To Elijah Charles, probate justice of the peace in and for the county of Jo Daviess, and state of Illinois: Sir--I this day resign the office of guardianship for Elizabeth and Julia Ann Bates; and whereas, the court having accepted said resignation, and revoked the letters heretofore granted to said M'Dowell, and it appearing to the satisfaction of the court that the said minors are possessed of real estate, do therefore appoint Thomas Drum guardian for said Elizabeth and Julia Ann. Said letters are in words and figures, to wit:

+-------------------------+
                ¦State of Illinois, ¦)¦ ¦
                +-------------------+-+---¦
                ¦ ¦)¦ss.¦
                +-------------------+-+---¦
                ¦Jo Daviess county, ¦)¦ ¦
                +-------------------------+
                

The people of the state of Illinois to Thomas Drum of said county, greeting: Whereas Robert B. M'Dowell, guardian for Elizabeth Bates, of the age of eleven years, in February last, and Julia Ann Bates, of the age of nine years, minor heirs of Nehemiah Bates, deceased, has on this day filed in the office of probate court his resignation as such guardian; and the said court having accepted said resignation, and revoked the letters heretofore granted to said M'Dowell, do, therefore, hereby appoint you guardian of the said Elizabeth and Julia Ann Bates, persons and property, until they shall arrive at the age of eighteen years. Witness, Elijah Charles, probate justice of the peace in and for said county, at his office, in Galena, this the 22d day of May, A. D. 1840.

ELIJAH CHARLES, Probate J. P.”

To the admission of this entry the plaintiff's counsel objected; which objection the court overruled, and plaintiffs excepted. Defendant offered and read in evidence a bond, executed by said Drum, as guardian, with sureties, in the penal sum of $5,000, dated 23d May, 1840, conditioned for faithful discharge of office and trust of guardian, etc., etc. The defendant then offered evidence that notice of sale was printed in four numbers of the Galena Sentinel, the first insertion on 11th February, 1843, and the last 11th March, 1843. The notice was dated Galena,

[11 Ill. 628]

February 14th, 1843, and set forth that Drum was guardian of said Elizabeth and Julia Ann, minors, that they were seized of certain lots and parcels of land, and among them said lots number five and six, in said block twenty-nine; it was necessary for the support and education of said wards, and would be conducive to their interests, to have said lots or some portion of them sold; that it was his intention to petition the circuit court, at Galena, on second Monday of March, then next, for license and authority to sell the same, or so much as should be necessary for their support and education. To the admission of which notice and certificate the plaintiff's counsel objected; which objection was overruled, and the notice and certificate admitted; and plaintiffs excepted.

The defendants then offered in evidence a petition, signed “Thomas Drum, guardian,” addressed to the associate justice of supreme court and judge of the circuit court, etc., which represented and set forth that said Drum was guardian of said Elizabeth and Julia Ann Bates, minors, etc., by the appointment of the probate justice for said county; that his said wards were each seized of an undivided half of certain tracts of land (describing them, and, among others, the said lots five and six, in block twenty-nine), that said Drum was so appointed guardian on the 22d May, 1840; “that at the time of his said appointment, nor at any time before or since, had there come into his hands or possession any personal property of said wards;” that from time to time since said appointment, said petitioner had advanced moneys for the support, maintenance and education of said wards, as appears by account annexed; that they were then indebted to him for such moneys; that there was no money, personal property, or means in his hands, for the support, maintenance and education of said wards; that it is necessary for their support and education, and will be conducive to their interests to sell said lots or parts of them; that notice had been given to all concerned, by publication in the Galena Sentinel, printed in Galena, for three weeks, successively, before the sitting of the court--certified copy annexed; wherefore he prays the court to order a sale of said lots, or as many as shall be deemed necessary by said petitioner, for the support and education of said wards; and that petitioner, on making sale, at such time and place, and on such terms as this court shall order, be authorized to convey the same to the purchasers, by good and

[11 Ill. 629]

sufficient deeds, according to the statute in such...