text:
    John Keenan v. The People of the State of Illinois.

      Filed at Ottawa September 25, 1882.

    New trial—in criminal case—to admit newly discovered evidence. On the trial of one for murder, the only evidence connecting the accused with the crime, which was committed in the city of Chicago, was the testimony of a saloon keeper of that city, who testified to facts and circumstances pointing very strongly toward his guilt or participation in the homicide, no witness seeing the murder or identifying the party who committed the act. The prisoner denied all the material facts in this witness’ testimony, and testified to being absent in the country on the night of the murder, when the saloon keeper said he was in his place of business, about ten or twelve o’clock, the accused stating that early in the morning after the murder took place he boarded a freight train going into the city, as it was moving slowly, and concealed himself in a car, the contents of which he described, to some extent. In this he was in some measure corroborated by other witnesses as to the facts and circumstances detailed by him, and as to the contents of one of the cars on that morning train, thus presenting a question to the jury as to whose story and version were true, or entitled to belief. To rebut the prisoner’s statement, witnesses were called who testified that the car doors on such freight train were shut, and sealed with tin seals, which on examination, after the arrival of the train in Chicago, were found to indicate no evidence of having been broken, the witnesses expressing the opinion that the car could not have been entered without disturbing the seals so as to be readily detected. The jury found the accused guilty, thereby giving no credit to his evidence. On motion for a new trial, affidavits of several persons were produced, one of them being a witness who had testified for the People, who, after experimenting with car doors fastened and sealed as the cars on the train spoken of were, stated on oath that they found that cars fastened the same as the one the accused claimed to have entered, could be opened and closed leaving the seals in apparent good order, and without breaking or injuring the same, and that they would so testify if a new trial should be granted. The facts stated in these affidavits were not contradicted, nor was anything presented to break their force. The court denied the motion for a new trial: Held, that the court erred in refusing a new trial, in order that the newly discovered evidence might be heard.
    Writ of Error to the Criminal Court of Cook county; the Hon. George Gardner, Judge, presiding.

      John Keenan was indicted in the court below for murder, and upon a trial was convicted. A motion for a new trial was denied, and the accused was sentenced to death. He thereupon sued out this writ of error.
    Messrs. Storck & Shubian, for the plaintiff in error.
    Mr. Luther Laflin Mills, State’s Attorney, for the People.
   Mr. Justice Dickey

delivered the opinion of the Court:

The 12th of November, 1879, was the date of the assembling of an immense concourse of people in the city of Chicago. Every part of the city was crowded with strangers. At such times evil-doers abound, and become active. During the night of that day, and about four o’clock in the morning of the 13th day of November, the residence of Mr. Hensley, situate on DeKalb street, in the western part of the city, was entered by burglars, and Hensley received three gunshot or pistol wounds, producing almost immediate death. The other members of the family, aroused from their slumbers, came to the scene, and found Hensley in a dying condition. He said nothing tending to identify the murderer or murderers. His mother saw one man escape through the front doors, which were at that time open. A revolver was found near where the deceased fell. A shoe was also found in the vestibule, between the doors leading to the street. A window in the 'basement story was found to have been forced open, and a screw-driver was also left by the invaders. Some clothing was taken from the room in which deceased had lodged, which was afterwards found, but there were no circumstances shown in connection with the screw-driver or the clothes in any way tending to the identification of the offenders.

Although the police officers made every effort to solve the problem, and ascertain who committed the terrible crime, no further light was discovered on that subject until about the month of June or July, 1881,—nearly a year and a half after the murder. About that time, Habercorn, the principal witness in this case, gave to the police a statement, in substance the same as that sworn to by him on the trial. The substance of his testimony on the trial was, that for a short time before the murder Keenan and two other men (Conners and Eiley) were often together at a saloon kept by the witness, and that on the night of the 12th of November, between ten and a half o’clock that night and midnight, these three men were at that saloon, and engaged in “a fuss among themselves, ” or animated dispute, about some matter; that at that time the witness was engaged playing pool on a billiard table, with a man by the name of Wallace, and did not hear what these men said to each other, or know what was the subject of their dispute; that while witness was so engaged playing pool, Keenan called him to one side, and asked the witness for the loan of his “gun, ” and that the witness stepped behind the counter and gave Keenan a revolver. Soon after this Keenan again called him aside, and asked him for a bottle of whisky, and the witness Went again behind the bar and gave Keenan a bottle of whisky, and the three men, Keenan, Conners and Kiley, at once went out together, Keenan taking with him the revolver and the whisky, and the witness returned to the billiard table and for a short time continued the game with Wallace, but very soon quit. Wallace went away, and the witness closed the saloon for the night, and slept that night in the saloon, and on the billiard table. The revolver which was found shortly after the murder, on the floor near where the deceased ■ fell, was presented to the witness at the trial, and he testified that the same was his property, that he had owned it for several years, and that it was the same revolver that he loaned to Keenan the night of November 12, 1879, as before stated.

, The witness also testified that it was about midnight when he closed the saloon, and that Keenan and his companions left the saloon that night about ten minutes before midnight. He further testified that on the next morning, about five o’clock, he was roused by a rap upon a rear or side door of the saloon, and on opening the door, Keenan, Conners and Kiley came in together, and called for drinks, but before getting the spirits, approaching steps on the sidewalk were heard, and these three men at once concealed themselves in a stairway behind the bar, one of them saying, “cheese it,— cheese it, ” which he said was a phrase among thieves; that the footsteps proved to be those of some teamsters who habitually came into this saloon very early for their drinks, before going to their work; that the teamsters stayed but a few minutes, and when they left, the three men in question came from their hiding place and got drinks, and soon went away together.

The witness testified further, that while these three men were in his saloon on that morning, he observed that Kiley had on but one shoe, and he asked him, “Where is your other shoe?” to which Riley replied, “Keenan or Conners throwed it down the sewer. ” Riley asked for a pair of shoes, and the witness gave him a pair of his old slippers which were behind the bar, and Riley wore them away that morning. He also testified, that while these men were at his saloon on that occasion he asked Keenan for his pistol, and Keenan replied: “We had a pretty hard time; I got the run; I lost it; I will square up with you, or I will get you.another.” He further testified, that during that day (November 13, 1879,) he read in a city newspaper an account of the murder of Hensley, and that after that, and about six o’clock that afternoon, Keenan and Riley came to him, and Keenan, calling him aside, said, “Can you keep a secret?” and the witness replied, “I know what the secret is—I will keep it; ” and they said, “We will depend on you. ” The talk was here interrupted by others coming up, and they went away. He further testified, that on the 11th of December, 1879, he was himself arrested and put in jail in Chicago; that Keenan was arrested and put in jail about a month before he was; that he was kept in jail until the 16th of July, 1880, wdien he gave bail, and was enlarged; that Keenan was in the same jail with him until about three weeks before the witness got out on bail, but not in the same cell; that some time in June, 1880, Keenan was taken from the jail to the penitentiary, and on the morning of the day Keenan was taken away, Keenan stopped at the door of witness’ cell, and handed to him certain papers and a package of clothing to take home, saying when he gave the papers, “Bead that, and don’t let any one see it.” These notes the witness produced, and they were read to the jury, and were as follows:

“Friend Lot: When you write to me sine your name Frank Young In all your letters send your address if them partys should turn up, let me know by saying business is bad and if they should trow up their guts you put a mark on the end of the paper like the one is on this but not so big, just so that I pan see it. If them partys should turn up, and say that thing is yours and that you gave it to me you keep still and I will say it is mine and get you out of it if I got to put •myself onto it dont fail to write and sine your name frank young by by.”
“Friend-Lot: tell Kitt Mcquaind and Frank McQuaid to write to me good by lott I hope that you will get out you may have my best regard to all friends You dont noe how bad I feel as bad as a stub-tail mule" in fly time I.wish to god that you was out lott I will feel weary until' you will get- out good by. ”

Habercorn further testified, that he and Keenan, while in jail together, often talked about the Hensley murder; that he was afraid the revolver would be traced to him, and often told Keenan so, and that Keenan always told him “not to be scared,—that they could not prove it; ” that witness often said to Keenan, “if those other fellows were caught they might peach, and he (the witness) would be in a fix, ” and that Keenan never told him- anything else about this murder. This witness further testified, that in 1881, after Keenan had been brought back from the penitentiary to the jail, and after the witness had told the police what he knew, and before the indictment in this ease was found, he went to the jail to take Keenan’s clothes to him, (which witness had kept for him while he was away,) and at the jail had another conversation with Keenan, in which witness expressed apprehensions that Eiley would be captured and would turn State’s evidence, and put the witness into the thing as deep as any of them, to which Keenan replied, “You are always troubling yourself about that revolver; Eiley never will weaken—Eiley will never say anything. ” On cross-examination this witness said he was still under indictment for receiving stolen property, and for burglary.

There was no other evidence introduced by the prosecution tending in any way to connect Keenan with this murder; This testimony, if true, presents circumstantial evidence tending strongly to convince the mind that Keenan was the murderer, or at least one of the party by whom the murder was committed.

Wallace, of whom Habercorn spoke as playing pool with him, was-not called by the prosecution. Being.called by the defence, he testified that he had been an employé of the firm of Fuller & Fuller for six years; had known the witness Habercorn for about three or four years, and used to be in his saloon nearly -every night; that on the night of the murder (November 12, 1879,) he played pool in Habereorn’s saloon, and it must have been along towards midnight before he left, and that he does not remember of seeing Keenan there that night; that he supposes if he had come up and spoken to Habercorn he would have seen him, but might not remember it. If there had been quarreling he would remember it. If Keenan had interrupted the game to borrow a revolver of Habercorn, and soon after had again interrupted the game to get a bottle of whisky, it is likely it would have attracted his attention,—but he saw no such thing as that. Witness said his memory was not very good. '

Keenan testifies, in his own behalf, that he had known Habercorn some eight months before the date of this murder ; that he spent much of his time at his saloon; that he knew Conners and Kiley, and associated with them; had roomed awhile with Kiley, and had been with them at Haber-corn’s; that he saw Habercorn on the 11th and 12th of November, 1879,—on the 12th in the forenoon, and also about four or five o’clock in the afternoon,—;and that he was again at the saloon and saw him there about ten o’clock on the morning of the 14th of November, shortly before he was arrested on the bridge, but» he swears he was not at that saloon on the evening of the 12th in company with Kiley and Conners; that Habercorn never lent to him a revolver in his life; that he met Habercorn often while they were in jail at the same time; that he had sent notes by Habercorn to other fellows around the jail when Keenan was confined in his cell and Habercorn was working in the halls; that.he never saw the notes read in evidence until they were produced on the trial; that- he never wrote such a thing in his life; that the handwriting of the notes is not his, although in some respects it is like his writing, but something different; that he never wrote them or gave them to Habercorn; that he did give Habercorn his clothes, and may have given him a note with them; that he had given him a note about a burglary,—the Finiger matter,—and he thinks the end of it was “goodbye. ” It was that burglary to which he (witness) had pleaded guilty, and he did so to keep Habercorn out of trouble; that Habercorn and others were with him when that burglary was committed, on the 11th of November, 1879; that it is true ■Habereorn brought to him his clothes after the return of witness from the penitentiary, but nothing was said about the Hensley murder, and that he does not tknow where Eiley or Conners is.

• Keenan also testified, that in the afternoon of the lStli of November, 1879, at about four or five o’clock, he left Haber-corn’s saloon and went to the corner of Kinzie street and Western avenue, and between six and seven o’clock he boarded a freight train and went to Oak Park, a station ■ about nine miles west óf Chicago, getting there about ten or eleven o’clock at night; that three other men (whose names he gives) were with him; that they went out there for the purpose of committing a burglary upon a house about a mile and a half south of that station; that on arriving in front of the house they made no attempt to enter, because of the barking of a fierce dog on the premises, and because there was a light burning in a window on one side of the house, and so they loitered about awhile and then returned to Chicago. On their return, after reaching Oak Park they caught a freight train there. It was moving slowly, and they got on about four o’clock on the morning of the 13th; that they went into a freight car through the end doors between the cars; that that car was not empty, but contained some stove pipe and some bales or bundles of some kind, containing something soft, it appeared like; it was dark in the car; they staid in the car till it reached Chicago, about six or seven o’clock in the morning, (it was about daylight,) and they got off on Kinzie street, west of Western avenue, and that after getting off that train that morning he (Keenan) came down on Halsted street, near Jackson, and there got his breakfast. The witness also testified that he loitered about the city through the day of the 13th, and on that night lodged at his own room on Harrison street, coming in about eight or nine o’clock, and that on the 14th, about noon, when crossing the river going east, he was arrested on the bridge, and after a few days’ confinement at the station was committed to jail upon two charges of burglary, and has been a prisoner ever since.

In corroboration of Keenan’s story as to his whereabouts on the night of the 12th and the morning of the 13th, (the time of the murder,) he produced credible witnesses, employés of the railroad company, who testified, in substance, that freight trains did pass on the railroad leading from Chicago to Oak Park, towards Oak Park on the night of the 12th, and returning to Chicago through Oak Park on the morning of the 13th, about the time indicated by his testimony; and by other witnesses, (hat about one and a half miles south of Oak Park, on the roadside, there was at that time & house occupied by a family, and that at that place there was then kept a fierce dog, much given to barking in a threatening manner at night, and that at that time there was an invalid in that family whose wants required attention frequently through the night, and that it was the custom on such occasions to have a light in the room occupied by the invalid.

To further corroborate this story of Keenan, Mr. Birdsall, a clerk in the freight department of the company operating the railroad in question, testified that in June or July, 1881, the attorney employed in Keenan’s defence called upon him with a memorandum, and at his request witness examined the record to ascertain the contents of the freight ears which came in through Oak Park on the train indicated on the morning of November 13, 1879, and that to do so he had to search books of that year which had been put away for safe keeping; that on examination it was found that a freight car, numbered 6614, of that train contained, among other freight, twenty-eight bags of rags and a lot of household goods and stove pipe, and that no other car of that train contained rags or stove pipe. On cross-examination he said rags were a very common article of transportation. Such freight comes on nearly every train, and stove pipe is frequently an article of transportation of that road. Mr. Brinkerhoff,' the local freight agent, and Mr. Waite, the tally clerk, gave testimony showing the same thing. It was also shown, on examination of' Mr. Birdsall, that there are at least two hooks in which the record of the contents of arriving cars are kept; that one of these is called the delivery book, and that this book was kept in the delivery office, accessible to almost anybody wishing to examine it, and generally open to the public for inspection.

To show that Keenan did not return that morning from Oak Park in car number 5614, and that his story and its corroboration were manufactured, the prosecution called Charles Boedeeker, who, in November, 1879, was night watchman and switchman at Park station, which is a short distance farther east than Western avenue, where Keenan says he got off the train on the morning of the 13th, and Frank G.„ Waite, the custodian of the seal record kept at the State street station, which is some two miles further east than Park station, and Mr. Brinkerhoff, the local freight agent at Chicago, who, after an examination of the seal records of the company, testified, in substance, that the railroad company had at that time, and now, a mode of sealing the doors of freight cars in such a manner that, in their opinion, the door so sealed could not be opened and closed again without making the violation of the seal apparent to an inspector, and also showing that the cars of the train which brought in on that morning this car number 5614 were duly inspected at Park station, and also at the station on State street, and the result of the inspection then and there was entered on their seal records, and that from those seal records it appeared that both at Park station and at the State street station the end doors of the car numbered 5614 were both sealed with a- tin strip, in the manner described by the witnesses, and that the seals were on the -doors on both ends of the car in good order on the arrival of the train at both of these stations.

On this evidence it became absolutely necessary that the jury should determine whether Habercorn or Keenan had spoken the truth in the matters wherein their testimony is at variance. The jury found the prisoner guilty, and thereby necessarily found that his (Keenan’s) story of his trip to Oak Park was manufactured and false. . It can not be known that they would have so found in the absence of the testimony of the three witnesses, Birdsall, Waite and Brinkerhoff, showing that they all were familiar with this mode of sealing cars, and that in their opinion the sealing was of such a character that the car could not be opened and closed without making the violation of the seal plain to the inspector. This evidence, if correct, seems most forcibly to lead to the belief that Keenan’s story in this regard was false, and entirely manufactured.

After the verdict came the motion for a new trial. On the hearing of that motion affidavits were read of Frank G. Waite, the employé of the railroad company who, on the trial, had testified to the security of this mode of sealing ears, and also of Frank McQuaid, a friend of Keenan, showing that after the trial, and on the 8th of September, 1881, McQuaid went with Mr. Storck, one of Keenan’s attorneys, and experimented upon cars fastened and sealed precisely as was ear 5614 when it came into Chicago on the morning of the 13th of November, 1879, and found that the same could be opened and closed leaving .the seals in apparent good order. These affidavits also show that like experiments were made by Mr. Waite in the presence of Mr. Shuman, Mr. Storck, and other gentlemen, with like result, and Mr. Waite swears that by such demonstrations he ascertained that “it is an easy thing to open the end window or door of a box freight car which is secured or fastened with a tin seal,” as described, “without breaking or in any way injuring or impairing the seal,” and that a car cloor of this kind, sealed in that way, can easily be opened and the car entered, and after coming out the door can he closed without injury to the seal, or showing to an inspector in any way that the car has been opened, unless he actually tried the door or window. Mr. Waite swears that he is familiar with this mode of fastening, and understands what he is speaking about, and that if a new trial be granted he will so testify.

The affidavit of an expert was also presented, tending to show that the notes produced as given to Habercorn by Keenan in the jail, are probably forgeries, and not in the handwriting of Keenan.

Nothing was presented on the hearing of the motion tending to break the force of these affidavits, and no reason is suggested why they are not entitled to belief. The truthfulness of Waite is conceded by the prosecution, who produced him as a witness. If it be not true that these sealed cars can be thus opened without detection in that way, it is a fact easy of proof. We must believe it is true. If this be so, it is plain that Keenan did not have a fair trial before that jury. His story had at the trial to be weighed against that of Habercorn by the jury, while under the belief that it was impossible that this car could have been opened and closed in the way he stated without immediate discovery of the fact that the car had been opened. This of itself was decisive against the truth of his story.

The motion for a new trial ought to have been granted. It was error to deny it. For this error the judgment of conviction is reversed, and the cause remanded for a new trial.

Judgment reversed.

Walkee, Sheldon and Scholfield, JJ., dissent.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    John Keith et al. v. Ada C. Keith.

      Filed at Mt. Vernon September 29,1882.

      1. Attacking jttdiciab pboceedings cobbatebabby—for mere error —annual allowance for alimony, without limit as to time. A decree for alimony which directs the defendant to pay the complainant $100 per annum, without stating for what length of time this shall be done, is not for that reason vqid, when the court had jurisdiction of the parties and of the subject matter. It will be a good decree for the payment of $100 per annum until reversed on appeal or error. The objection that no limit is fixed for the duration of the obligation imposed, if good at all, is only so in a direct proceeding to reverse the decree.
    2. Sheeiee’s deed—misrecital as to judgment or decree. A misrecital of the judgment or decree and execution in a sheriff’s deed, where they are so described that they may be fully identified, is not fatal to the validity of the deed. A reference to the decree as a judgment, may be regarded as a clerical error, when it can not mislead any one; and a recital in a sheriff’s deed that the complainant recovered judgment for $175, and costs of suit, when in fact the decree was only for $100, to be paid quarterly, in advance, but there was due $175 on the decree when the exec ition issued, was held to constitute no valid objection to the deed as evidence.
    3. Evidence—secondary evidence—preliminary proof as to loss of execution. In an action of ejectment by the purchaser of land under execution sale, the affidavits of the plaintiff, and the clerk of the circuit court from which the execution was issued, are competent preliminary evidence of the existence and loss of the execution.
    4. Same—sheriff’s deed, as evidence of facts recited therein. By the statute, a sheriff’s deed, or certified copy thereof, is made prima facie evidence of the existence, the issuing and contents of the execution under which land has been sold.
    5. Possession—whether of an entire tract. The visible and exclusive appropriation and use of a part of a tract of land, claiming the whole under color of title, or a deed purporting to convey the whole, is in law the actual possession of the entire tract, except so far as adverse possession may exist.
    6. Same—possession as evidence of title. Prior possession of land alone is evidence of a fee, and although the lowest, until rebutted by a higher evidence it must prevail.

      7. Ejectment—by purchaser under execution against the defendant in execution—estoppel. Whatever title a defendant in execution may have to land, passes to the purchaser under the execution, upon receiving a sheriff’s deed on a valid sale; and in an action of ejectment by such purchaser against the defendant in execution to recover possession of the land, the latter will be estopped-from disputing the title of the purchaser.
    Appeal from the Circuit Court of Jackson county; the Hon. David J. Bakeb, Judge, presiding.
    Mr. W. J. Allen, and Mr. F. E. Albbight, for the appellants :
    T¿ie decree-under which the sale was made is void, for uncertainty. It required the defendant therein to pay complainant $100 as alimony, without stating for how many years, or whether for complainant’s life.
    To entitle the plaintiff in ejectment to recover on the sheriff’s deed for the premises, it was necessary for her to prove a valid judgment, an execution issued thereon, a levy and sale, and a deed corresponding with the judgment., Douglas et al. v. Whiting, 28 Ill. 362; Johnson v. Adleman, 35 id. 267; Kenney et al. v. Knœbel et al. 47 id. 417; Harmon v. Larned et al. 58 id. 167; Fischer v. Eslaman et al. 68 id. 78.
    The recitals in the-sheriff’s deed can not avail, as this is not a case where it is alleged- and proven that the execution was lost or destroyed. It is probably true that a recital in a sheriff’s deed of a certificate of sale, and the assignment thereof, is evidence of their existence, but such recital is not sufficient to establish the existence of a judgment or execution. Carbine v. Morris, 92 Ill. 555.
    There is a fatal variance in the recitals in the deed, from the decree. The decree is for “the sum of $100 during each and every year, commencing on the first day of November, 1882, payable quarterly, in advance.” The sheriff’s deed shows the recovery of a judgment for the sum of $175, and costs of suit. Johnson v. Baker, 38 Ill. 98.

      Mr. Akdbew D. Duff, for the appellee:
    The possession of the land by the defendant long before, and up to the time of, the decree and sale against him, gave him a prima facie title to the land. Herbert et al. v. Herbert, Breese, 354; Mason v. Park, 3 Scam. 533; Brooks v. Bruyn, 18 Ill. 539; Henricksen v. Hodgen, 67 id. 179.
    Entry upon, and possession of, the improved portion of this land, under a deed purporting to convey the entire one hundred and twenty acres in fee, was possession of the whole tract. Hardisty v. Glenn, 32 Ill. 72; Bowman v. Wettig, 39 id. 416.
    By the sheriff’s deed offered in evidence, the appellee acquired all the title of Bowen Keith to the premises.
    Mere error will not render the decree a nullity. Sheldon v. Newton, 3 Ohio St. 494; Huls v. Bunion, 47 Ill. 396; Wimberly v. Hurst, 33 id. 166; Freeman on Judgments, secs. 116, 124.
    The affidavit was proper preliminary evidence for the court, to lay the foundation of secondary evidence. 2 Greenleaf on Evidence, sec. 17; Taylor v. Riggs, 1 Pet. 597.
    Slight evidence that the paper existed, and a strong probability that it is lost or mislaid, is all the law requires. Kelsey v. Hanmer, 18 Conn. 311; Boulden v. Massie, 7 Wheat. 122. Also see Ross v. Hale, 29 Ill. 104.
    This certified copy of the execution docket fully proved the contents of the execution. Ellis v. Huff, 29 Ill. 451.
    By sec. 33, chap. 77, Revised Statutes, as soon as prima facie proof of the loss of the execution was made, the deed itself became evidence of the issuing, levy, etc., of the execution, as recited in the deed.
    The recital in the sheriff’s deed pursues the execution. The proof also shows that the execution was issued under this decree. If this appears, the variance is immaterial. Phillips v. Coffee, 17 Ill. 157; Loomis v. Riley, 24 id. 307; Hayes v. Bernard, 38 id. 303.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal is prosecuted to procure the reversal of a judgment of the circuit court of Jackson county, in an action of ejectment brought by appellee, against appellants.

Appellee claimed title by virtue of a sheriff’s deed, made pursuant to a sheriff’s sale on an execution issued upon a decree of the circuit court of Union county, in her favor, and against the appellant Bowen Keith, for alimony. Appellants urge several objections to this deed, which we shall notice briefly in their natural order.

First—It is contended the decree is void because it directs the payment of $100 per annum, but does not direct how long this shall be done. This, at most, could be but error. The court had jurisdiction of the parties and of the subject matter, and at all events this would be a good decree for the payment of $100 per annum until reversed on appeal or error. It would seem to be equivalent to a decree for the payment of the specified amount during the joint lives of the parties, but it is not necessary that we shall commit ourselves to this view, and we do not do so. It is sufficient the objection is not tenable in this collateral proceeding, and if good at all, is only so on appeal or error. *

Second—Counsel contend that there is a variance between the decree in evidence and the recitals in the sheriff’s deed— that the decree is of the October term, 1872, of the Union circuit court, for “the sum of $100 during each and every year, commencing on the 1st day of November, A. D. 1872, payable quarterly, in advance, ” while the sheriff’s deed recites that “at^the October term, A. D. 1872, of the circuit court in and for the county of Union, and State of Illinois, Ada C. Keith recovered a judgment against Bowen Keith for the sum of $175, and costs of suit,” etc. We have held that this is a mere question of identity, and that a misrecital of the judgment and execution in a sheriff’s deed, where they are so described that they may be fully -identified, is not fatal. Phillips et al. v. Coffee, 17 Ill. 154; Loomis v. Riley, 24 id. 307; Hayes et al. v. Bernard, 38 id. 297,—see on page 303. There seems here to have been no trouble in identifying the decree with the recitals in the deed. The word “judgment, ” instead of “decree,” was purely a clerical error, and, under all the circumstances, could have misled no one, and the amount for which the execution was issued was the correct amount then due on the decree. The objection is not tenable.

Third—The most serious objection urged by counsel for appellant is, there is no proof that an execution ever issued* on the decree, and a sufficient basis for the introduction of secondary evidence of the execution, which was allowed by the court, was not laid. We think the affidavits of appellee and the clerk of the circuit court of Union county were competent, and sufficient preliminary evidence to prove the loss of the execution. (Rev. Stat. 1874, page 845, sec. 28.) And sec. 33, chap. 77, Rev. Stat. 1874, page 626, is as follows; “Any deed which has been heretofore, or which may hereafter be, so executed,”—i. e., as previously in that chapter is provided in relation to sheriff’s deeds,—“or a certified copy of the record thereof, shall be prima facie evidence that the provisions of the law in relation to the sale of the property for which it is or may be given, were complied with; and in case of the loss or destruction of the record of the judgment or decree, or of the execution or levy thereon, such deed or certified copy of the record thereof shall be prima facie evidence of the recovery and existence of the judgment or decree and issuing and levy of the execution,. as therein recited. ” The existence of the judgment is clearly proven, and there is nothing in the record to overcome the prima facie evidence of the issuing and contents of the execution afforded by the sheriff’s deed.

Fourth—Counsel insist that as to the south-east quarter of the south-east quarter of section 34, appellee established no title whatever. They- admit this land was included in the deed from Miller and wife to Alexander H. Keith, but insist it is not shown that Miller had any title, and also that the deed from Miller and wife was not properly acknowledged. There is no controversy but that Alexander H. Keith conveyed this land, as well as the other, to Bowen Keith, and that Bowen Keith took possession, and has retained possession thereof since March, 1860. We have held that the visible and exclusive appropriation and use of a tract of land, claiming the whole under color of title, or a deed purporting to convey the whole, is, in law, an actual possession of the entire tract, except so far as adverse possession-may exist. (Brooks v. Bruyn, 18 Ill. 539; Hardisty v. Glenn, 32 id. 62; Bowman v. Wettig, 39 id. 417.) Prior possession alone is evidence of a fee, and although the lowest, until rebutted by a higher it must prevail. (Herbert v. Herbert, Breese, 354; Mason v. Park, 3 Scam. 532; Brooks v. Bruyn, supra; Watts v. Parker, 27 Ill. 228; Barger v. Hobbs, 67 id. 592.) Therefore, as between appellant Bowen Keith, and appellant John Keith, the latter having shown no title or right of possession whatever, the title of the former was,, before the sheriff’s sale, sufficient to prevail in an action brought for a disturbance to his prior possession; and by virtue of her deed under the sheriff’s sale, appellee came into exactly such estate as Bowen Keith theretofore had, and he can not, in this suit, dispute her title. Gould et al. v. Hendrickson, 96 Ill. 599; Ferguson v. Miles, 3 Gilm. 358.

. We see no cause to disturb the judgment below, and it will therefore be affirmed..

Judgment affirmed.


author: Mr. Justice Craig

text:
    Benjamin F. Henson v. James E. Moore et al.

      Filed at Mt. Vernon September 29,1882.
    1. Homestead—in the wife’s land—by what law governed—power of disposition in the wife. A husband’s homestead rights in the lands of his wife are determined by the law in force at the death of the wife, and not by any different law in force at any time prior thereto. Under the law in force since 1874, a wife has no power to devise her homestead to another, and thus deprive her husband of that estate. •
    2. Same—abandonment—temporary absence. The fact of the absence of a husband from his residence on his wife’s premises for a short time, in consequence of some difficulty with his wife, when he returns during her last sickness, and lives with her on the property till her death, will not be such an abandonment of the homestead as to deprive him of any right the statute gives him, or preclude him from claiming the estate of homestead.
    3. Constitutionad daw—change of law relating to curtesy, dower and descent. It is competent for the legislature to change the law in regard to descent, dower and curtesy, or abolish expectant rights under such laws, at any time before they become vested estates by the death of the person from whom they are derived, when the land or property of the deceased will pass according to the laws then in force. Any change, however, in the law after that will have no bearing on the parties’ rights.
    4. Dower of the husband in wife’s land—and his heirship in-respect thereto—change i/n the law after the marriage. A woman, at the time of her marriage, in 1869, owned certain lands, which she retained until her death. By the law in force at the time of the marriage the husband was not entitled to dower in such land; but by the law in force at the time of the death of the wife, (August 30, 1877,) the estate by the curtesy was declared abolished, and the husband given dower in his wife’s real estate, and by section 12 of the Dower act it was provided, that “if a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower, * * * one-half of all the real and personal estate” remaining after the payment of debts. The wife left a will disposing of her land to others than her husband, and’ he renounced the will, and claimed under the statute: Held, that having elected to take under the statute, he became seized in fee of an equal undivided one-half of the wife’s lands.
    5. Chancery jurisdiction—accounts between co-tenants. A court of equity has undoubted jurisdiction in suits between co-tenants of land for an accounting.

      6. Chanoeby pbactioe—amending and retaining bill as to rights not passed on. A wife by her will devised the east half of a tract of land owned by her at her death, to her brother for life, with remainder to his children, and the west half to a nephew in fee. At her death, in 1877, she had a husband, who survived her, and continued to occupy the land, and receive the rents and profits of the same. The brother filed a bill against the husband, praying for an account of the rents and profits, and that complainant’s rights in the land be ascertained and declared, and he be declared the sole owner of the east half of the tract for life, free from any claim of the defendant, and for possession, and for other relief generally. The husband having renounced the will, was found by the court to be entitled to one-half of the whole tract in fee, and the bill was dismissed: Held, that the bill should have been retained, and amended, so that a partition might be had and an account taken, settling all the rights of the parties, and for this purpose the order of dismissal was reversed.
    Writ op Error to the Circuit Court of Jackson county; the Hon. Daniel M. Browning, Judge, presiding.'
    Mr. B. J. Stephens, for the plaintiff in error:
    The bill should not have been dismissed, but retained, and the rights of the parties adjusted. The court had jurisdiction to adjust the account of rents and profits among the several co-tenants. Story’s Eq. Jur. sec. 466; Freeman on Co-tenancy, sec. 321.
    Although the complainant was not entitled to the specific relief sought, the bill asked that the complainant’s rights be ascertained and declared, and under this, and the general prayer, the court should have granted such relief as the facts authorized. Story’s Eq. Pl. secs. 40-42; Bryan et al. v. Primm, Beecher’s Breese, 59; Isaacs v. Steele, 3 Scam. 103; Manchester v. McKee, 4 Gilm. 519 ; Vansant v. Allmon, 23 Ill. 30; Beebe et al. v. Bank of New York, 1 Johns. 529.
    Where a court obtains jurisdiction for any purpose, it will retain it for all purposes necessary to do complete justice between the parties. Sherlock et al. v. Village of Winnetka et al. 59 Ill. 389.
    By the law in force at the marriage, the husband was 'entitled to no dower in his wife’s land. His rights were the same as at common law, except so far as modified by the Married Woman’s act of 1861. This interest was an estate during coverture,—a freehold acquired by purchase, the consideration for which was the marriage. 2 Kent’s Com. 131; Rose v. Sanderson, 38 Ill. 247; Cole v. Van Riper, 44 id. 64.
    Notwithstanding the act of 1861, curtesy still existed in this State, (Armstrong v. Wilson, 60 Ill. 226, Wolf v. Wolf, 67 id. 55,) and that act could not operate to divest the husband of a vested estate, either of curtesy or during coverture. Rose v. Sanderson, supra; Noble v. McFarland, 51 Ill. 229. See, also, 2 Kent’s Com. 131; Cooley’s Const. Lim. 360; Shortall v. Hinckley, 31 Ill. 226; Russell v. Rumsey, 35 id. 362.
    As to other instances in which it is held such rights are vested, and can not be taken away, see McDavid v. Adams, 77 Ill. 155; Kase v. Painter, 77 id. 543; Allmond v. Brownell, 76 id. 536; Harrer et al. v. Wallner, 80 id. 197; Westervelt v. Gregg, 2 Kern. 202.
    The homestead having been acquired prior to 1874, can not be claimed against heirs or devisees. Eggleston v. Eggleston, 72 Ill. 24; Sontag v. Schmisseur, 76 id. 541.
    Mr. Andeew D. Duff, for the defendants in error:
    A court of equity had no jurisdiction, ejectment and forcible entry affording a plain legal remedy. The premises being occupied adversely, a bill to remove a cloud from the title would not lie. Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366; Oakley et al. v. Hurlbut, 100 id. 204.
    Moore was entitled to an estate of homestead. This estate, when it once attaches, is not lost by the dismemberment of the family. Kimble v. Willis, 97 Ill. 494. His temporary absence was not an abandonment.
    As to the power of the legislature to change the law as to dower, curtesy, etc., before it becomes absolutely vested by death, or even to abolish such estates before they are vested, see Noel v. Ewing, 9 Ind. 37; Strong v. Clem, 12 id. 37; Logan v. Walton, 12 id. 629; Sturgis et al. v. Ewing, 18 Ill. 176; Cooley on Const. Lim. 360.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Benjamin F. Henson, in the circuit court .of Jackson county, against James E. Moore, F. E. Albright, A. B. Pugh, and Wm. S. Murphy. The bill prayed for an account, and that the rights of the complainant in and to the premises described in the hill be ascertained and declared, and that he be decreed to be the sole owner of the lands for life, free from any right or claim of defendant James E. Moore, or any persons claiming under him, and that he and those claiming under him be adjudged and decreed to surrender up to complainant the possession of the premises; that.the conveyances from Moore and Albright be set aside; that complainant be put in possession of the premises; that Moore be required to account for rents and profits, and that complainant may have such other and further relief as to equity and good conscience shall appertain, and as shall seem meet. The defendants put in an answer to the bill, a replication was filed, and a hearing had on the evidence in regard to the homestead rights of defendant Moore, and on an agreed statement of facts as to the other matters alleged in the bill.

It appears from the record that Minerva A. Moore died testate, August1 30, 1877, seized of fifty-six acres of land adjoining the city of Murphysboro, in Jackson county. She left surviving her a husband, James E. Moore, a brother, three sisters, and the son of one deceased sister and the daughter of another deceased sister, but no children or descendants of children. About twenty acres of the east half of the land was in cultivation, where was situated a dwelling-house, which was occupied by the testatrix and her husband at the time of her death. Moore was-married to the testatrix on the 31st day of October, 1869, she being then the owner of the premises. The east half of the land Mrs. Moore devised to her brother, Benjamin F. Henson, for life, and at his death to his children. The west half of the tract of land she devised to her nephew, Benjamin F. Morgan, in fee. To her husband she devised one ton of hay, which was in a barn on the premises, but no other property whatever. The will was admitted to probate October 16, 1877, and on the 27th day of the following month James E. Moore filed in the probate court his written renunciation of the will, and his election to take under the statute. It also appears that at the time of the death of Mrs. Moore, complainant was in the possession of the premises under an unexpired lease; that Moore, in October, 1877, recovered a judgment before a justice of the peace, against complainant, for possession of the premises ; that an appeal was taken, but Moore, under a statute then in force, obtained a writ of possession, and was put in the possession of the premises.

It is claimed by plaintiff in error that as the homestead was acquired prior to the act of 1874, which exempts a homestead from the laws . of descent and devise, the husband could not claim an estate of homestead in the property. We do not regard it as a material question when the property became a homestead. . The husband’s homestead rights must be determined by the law in force at the death of the wife. The first section of the Homestead act in force at that time, in express terms exempts the homestead from the laws of conveyance, descent and devise. Under this statute, which must control, the wife had ho power to devise the homestead to another, and thus deprive the husband of that estate.

It is also said the husband had abandoned the homestead before the death of the wife. It is true the evidence shows that some difficulty arose between the husband and wife, prior to her death, in consequence of which he was absent for a short time, but he returned after his wife was taken sick, and was living with her on the property when she died. ■We do not think this temporary absence would deprive him of any right which the statute- gives him. There was, in our judgment, no such abandonment of the homestead as would preclude him from claiming the estate.

On the trial of the cause the court held that James E. Moore was entitled to dower in the lands owned by the wife at the time of her death, and having renounced the provisions of the will, under section 12 of the Dower act he was entitled to one-half of the lands in fee. This decision is claimed to be erroneous. Mrs. Moore owned the lands at the time she was married, in 1869, and it is true that under the statute then in force the husband was not entitled to dower in the wife’s real estate, and had she died without any change in the statute he could not claim dower in her lands. But section 1 of the Dower act declares that the estate of curtesy is abolished, and the surviving husband and wife shall be endowed of the third part of all the lands whereof the deceased husband or wife was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in a legal form. Section 12 of the same act declares: “If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower, * * * one-half of all the real and'personal estate” which shall remain after the payment of debts.

Had Moore, by the marriage, acquired any vested estate in the lands of his wife, it may be that the legislature could not have deprived him of that estate; but such was not the case, nor is that the question presented by this record. The question is, whether the legislature had the power to so change the law as to invest the husband or wife with an estate or interest in lands which they did not possess at the time of marriage,—or, in other words, has the legislature no power to regulate curtesy, inchoate dower, or any mere expectant interest, except as to lands acquired and marriages solemnized after the law is enacted. The statute to-day provides, that where a person dies intestate, seized of lands, the same shall descend to his children in equal parts. Suppose that A has one thousand acres of land, and five children, under the statute, should he now die, the lands would descend in equal parts to all the children. But the legislature has the power to provide, at its next session, that the fee of these lands shall descend to the wife of A, and thus deprive the children of any right that they may now have in expectancy to these lands. The right of dower which a wife may have in the estate of the husband before his death, is one which may be changed in such manner as the legislature may think for the best interests of the people. It may be entirely abolished, or it may be enlarged. The same is true in regard to the dower rights of a husband in his wife’s lands. It is always subject to legislative change until it becomes a vested estate,—that is, until the wife or husband dies,—then the land passes according to the law then in force, and any change afterwards made in the law can not have any bearing on the rights of the parties. As was held in Sturgis v. Ewing, 18 Ill. 176: “A party who acquires property does not acquire with it the right to devise such property according to the law as it exists at the time he acquires it. Wills and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal law, and the law relating to or regulating any of them may be changed at the will of the legislature. But no change in the law made after the death of the testator or intestate will affect rights which became vested in the devisee, heir or representative by such death.”

Cooley, in his work on Constitutional Limitations,- (10th ed.) 447, in discussing the husband’s right as tenant by the curtesy- initiate, says: “While this right remains in expectancy, merely,—that is to say, until it becomes initiate,—the legislature must have full right to modify, or even abolish it. And the same rule will apply to the case of dower,, though the difference in the requisites of the two estates is such that the inchoate right to dower does not become property, or anything more than a mere expectancy, at any time before it is consummated by the husband’s death. In neither •o'f these cases does the marriage alone give a vested right,— it gives only a capacity to acquire a right. The same remark may be made regarding the husband’s expectant interest in the after-acquired personalty of the wife. It is subject to any changes in the law made before his right becomes vested by the acquisition. ” On page 445 it is also said: “And it is because a mere expectation of property in the future is not considered a vested right, that the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner. ”

Under the statute, we think there can be no doubt that James E. Moore was entitled to dower in his wife’s lands, and having renounced the provisions of-the will in the mode provided by law, and having elected to take under the statute, he became seized in fee of an equal undivided oné-half of the lands owned by the wife at the time she died.

The court, however, on the hearing, dismissed the bill, and it is contended by complainant, conceding that Moore was entitled to an undivided half of the premises, a decree should have been rendered settling the rights of .the parties. It appears that Moore and his grantee had for several years been in possession of the premises, and had ■ received all of the rents. One object of the bill was to require an account, and it is a clear proposition that equity has jurisdiction in actions between co-tenants for an accounting. (Story’s Eq. Jur. sec. 466.) We are of. opinion that the bill should have been retained, and an account stated between the parties, and as all the facts relating to the title to the lands were before the court, no good reason is perceived why the bill should not have been amended, and a partition of the lands decreed. Equity and justice would seem to require that the rights of all the parties should be settled in the proceeding, without requiring the complainant to commence a new suit.

We are therefore of opinion that equity requires that the decree should be reversed, and the cause remanded, with leave to the complainant to amend his bill, making Benjamin T. Morgan, to whom the west half of the premises was devised, a defendant, and for such other and further amendment as will authorize a decree of partition of the premises between the different owners, as their rights may appear from the evidence.

Decree reversed.


author: Mr. Justice Sheldon

text:
    Bridget Burns v. Thomas Middleton et al.

      Filed at Mt. Vernon September 29,1882.

    1. Evidence—relevancy—-to contradict matters admitted by the pleadings. Where a bill in chancery seeks to avoid a sale under a deed of trust, on the ground that $357 was fraudulently, and without consideration, added to the sum really due, and included in the note, evidence as to the transactions of the parties, and their dealings prior to the giving of the note, is irrelevant, and will not be considered. What a party admits or alleges in his pleading can not be gainsaid by him.
    2. Settlement—receipt as evidence thereof. Where the owner of a house and lot took from a party who had been collecting rents for her, and making payments in her behalf, the vouchers for payments and statements of receipts, agreeing to send a receipt in return for them, and did send him by mail a paper acknowledging that “all money due us as rent for our real estate in, etc., to the 24th of October, 1872, except $50, which is to be applied on our note to him,” has been received, and further reciting: “This is given as a receipt in full of all claims, demands or sums of money which we had against” him prior to October 24,1872,—it was held, that this should be taken as evidence of an adjustment of all counter claims of such party and her husband up to that time. 1

      3. Trustee’s sale—grounds for setting aside. A sale of property under a deed of trust for a less sum than the indebtedness secured, will not be set aside' because the holder of the indebtedness, in crediting the amount of rents collected by him of tenants of the mortgaged property, allowed no interest on the rents so received. Any proper claim for such interest will go in reduction of the unpaid balance of the debt secured. Nor will the fact that the property is sold for an inadequate price afford any ground to avoid the sale.
    Appeal from the Circuit Court of Madison county; the Hon. Geobge W. Wall, Judge, presiding.
    Mr. C. F. Noetling, Mr. B. A. Halbebt, and Mr. F. A. McConaughy, for the appellant:
    While the mere fact of inadequacy of price may not justify the setting aside of a trustee’s sale, yet this may be considered with other grounds, such as fraud and oppression, as shown in this ease. In eases involving complicated accounts, running over a period of years, involving large amounts, a reference should be made to the master to state the account, and it is error not to do so. Mosier v. Norton, 83 Ill. 519; Stewart v. Kirk, 69 id. 509.
    This ease is one of unusual hardship and oppression, appealing strongly to the conscience of the chancellor, and should be reversed, so that the rights of the parties may be determined and properly adjusted.
    Messrs. Irwin & Spbingeb, and Mr. Levi Davis, Jr., for the appellees:
    There is no proof of usury. As to reserving more than the legal rate of interest after the maturity of a note, see Pike v. Crist, 62 Ill. 461; Wilday v. Morrison, 66 id. 542; Witherow v. Briggs, 67 id. 96; Lawrence v. Cowles, 13 id. 579; Bishop, etc. v. Edgerton, 26 id. 55; Davis v. Rider, 53 id. 418; Downey v. Beach, 78 id. 53.
    A strong presumption arises that a settlement of accounts between parties embraces all the items each has against the other that are due. Straubher v. Mohler, 80 Ill. 21; Niles v. Hammond, 80 id. 396. See further, as to force and effect of settlements, American Ins. Co. v. Crawford, 89 Ill. 62; Stempel v. Thomas, 89 id. 146; Kellogg v. Moore, 97 id. 282; Conlin v. Carter, 93 id. 536.
    Where a person applies to equity for relief against usurious contracts, he must tender or offer to pay the principal, and legal interest. Tooke et ux. v. Newman et al. 75 Ill. 215.
    Inadequacy of price, even to the extent of one-third the value of the property, will not avoid the sale. Wild et al. v. Rees, 48 Ill. 429; Booker v. Anderson, 35 id. 67; Waterman v. Spaulding et al. 51 id. 426.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On March 18, 1870, John Burns executed his promissory note to Thomas Middleton, for $5950, payable six months after date, with twelve and a half per cent per annum interest, if not paid at maturity, to secure the payment of which, Bridget Burns, the wife of said John, executed to Charles P. Wise, as trustee, her deed of trust of certain real estate in the city of Alton. On September 20, 1873, Wise, the trustee, sold the property under the trust deed, for $5500, Middleton, the beneficiary, becoming the purchaser. About two and one-half years after said sale Bridget Burns filed her bill in chancery in this ease to set aside the sale, and for an accounting, the bill in substance alleging that the sum of $357.95 was included in said note fraudulently, and without any consideration ; that June 2, 1873, Middleton demanded payment of the note, and thereupon complainant made arrangement to sell a portion of the property embraced in the deed of trust for $5000; that the amount at that time due Middleton on the note did not exceed that sum, and that complainant then offered her check for -that amount to Middleton, which he fraudulently refused to accept, in order that he might obtain the property at much less than its value; that under authority from complainant, Middleton had received the rents of the premises, and that they amounted to enough to pay the note; that he fraudulently suffered the property to remain unoccupied, to complainant’s loss • of $1500, and that the property at the time of the sale was worth $9000. The circuit court, on final hearing, dismissed the bill, and complainant appealed.

The note in question, of March 18, 1870, was given in part in renewal of a previous one, and the proofs taken in the case have gone into antecedent transactions of the parties in the making of notes and deeds of trust, commencing in October, 1867, as tending to show what was the amount due from Burns on March 18, 1870. But this is irrelevant under the pleadings, and we shall give no consideration to such prior transactions. The bill alleges that on March 18, 1870, John Burns was indebted to Middleton in the sum of $5562.05, and that to evidence the same the latter took a new note, and that $357.95 was added to such sum, and included in the note fraudulently, and without any consideration. The then indebtedness is admitted by the bill to be $5562.05, and it can not be gainsaid. The only objection the bill makes to the note in question, as originally given, is the inclusion in it of the added sum of $357.95. The evidence fails to sustain the allegation of the bill in regard to this item, but on the contrary, it satisfactorily.shows that there was an additional advance made of this sum at the time of the giving of the note.

All that appears as to the offer and refusal of a check for $5000, which is complained of in the bill, is, that the proposition was made to Middleton that he should accept that, and release a portion of the property,- which the latter refused to do, not deeming the remaining portion sufficient security for the residue of his debt. That there was no more than $5000-then due on the note, appears only from the testimony of complainant and her husband, which is fully contradicted by that of Middleton and Wise. Some insurance money and rents were received by Middleton, but these were accounted for and credited on the note, as Middleton testifies, and Wise testifies to the admission of Burns, at the time the property was first advertised to be sold, in June, 1873, that the amount which Middleton claimed to be due upon the note was correct. The only evidence to the contrary is that of Mrs. Burns and her husband. The testimony of Middleton and Wise is corroborated by documentary evidence in the case.

It appears that Middleton and Mrs. Bums had a settlement on October 24, 1872, after which she took the vouchers for payments and statements of receipts home with her, promising to send a receipt in return for them. , This she did, sending to Middleton by mail a paper acknowledging that “all money due us (the Burns’) as rent from our real estate in the city of Alton, to the 24th of October, 1872, except §50, which is to be applied on our note to him, ” has been received, and further reciting: “This is given as a receipt in full of all claims, demands or sums of money which we had against the said Middleton prior to the 24th day of October, 1872.” This should be taken as an adjustment of all counter claims of the Bums’ up to that time. Since then Middleton renders a detailed statement of all receipts of rent and disbursements, and of the application of the balance upon the note, which is not controverted, except in the respect of there being no allowance of interest on rents received. Any proper claim on this account will go in reduction of the unpaid balance of the note, which is largely in excess of any such claim of interest on rents. It is no ground for setting aside the sale, nor does the inadequacy of the price at which the property was sold afford such ground. The evidence fails to show that Middleton had the renting of the premises, so as to make him chargeable for any loss of rent because of the property not being rented. It shows that the rents were collected by Middleton, and that the renting of the premises was by Bums.

Not finding there to be any preponderance of evidence in support of the allegations of the bill, we think the decree, of the circuit court dismissing the bill was correct, and the decree will be affirmed.

Decree affirmed.


author: .Mr. Justice Scholfield

text:
    Mary Smiley v. George Fries.

      Filed at Mt. Vernon September 29,1882.

    1. Description of land in a deed—sufficiency. Any description of land in a deed by which the property may be identified by a competent surveyor, with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient.
    2. A deed for real estate conveyed a number of lots in the town of Athens, St. Clair county, Illinois, referring to the plat of that town, and purported to convey another tract, described as, “also another piece or parcel of land, being all that part of the north-west quarter of the south-west quarter of section 27, lying out of the town, containing,” etc: Held, that the description of the latter tract, taken by itself, was not sufficient in certainty, but that the word “town,” meant the town of Athens, the plat of which is a fixed monument, from which the location of the tract may be found with precision, and hence the description was sufficient.
    3. Delivery of a deed—presumption as to time. In the absence of other proof, the delivery of a deed will be presumed to have been on the day it bears date, and the subsequent date of the certificate of acknowledgment alone can not overcome this presumption.
    4. Deed—correcting mistake by memoranáwm at the bottom. To a deed purporting to have been executed on June 12, 1837, was appended a memorandum, to the left of and below the signatures of the grantees: “Interlined, altered and scratched out before signed, Belleville, June the twelfth, eighteen hundred and thirty-eight. ” It was not stated by whom this was made, nor was it shown, except by the mere inference to be drawn from the date, that it was made when the deed was signed: Held, that such entry alone was not sufficient to show there was a mistake in the date of the deed.
    5. Covenants for title—effect of outstanding title in grantee. Where the holder of the undivided three-fourths of a tract of land conveys the entire estate therein, by warranty deed, to the owner of the undivided one-fourth part, the coveriants of the grantor are not broken by reason of the outstanding title in his grantee at the time the deed was made, and the grantee can maintain no action on such covenants.
    6. Inuring of title subsequently acquired by grantor. A subsequently acquired title of a grantor inures to the benefit of his grantee by way of estoppel, to avoid circuity of action, and where there is no liability on the covenants of the grantor’s deed there is no foundation for the estoppel, and a title subsequently acquired from his grantee will not inure to such grantee, and thereby make his deed inoperative.
    • 7. Title—interchange of conveyances. A and B owned land in common, or as partners, the first the undivided three-fourths thereof, and the .latter the other undivided fourth. A conveyed by warranty deed to B, the whole title, and B afterward .conveyed to A the undivided one-fourth of the same: Held, that' by these deeds each party conveyed to the other the interest he held at the time in the land, thus exchanging places, and that B did not own the entire estate, but only one-fourth thereof.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. William C. Kueffnee, for the appellant:
    The deeds between the tenants in common, Pensoneau and Kraft, having been executed, acknowledged, and filed for record, at the same time, must be construed together as one entire transaction. Kruse v. Prindle, 8 Or. 158; White v. Breson, 14 Ohio St. 339; Thompson v. McClenachan, 25 Miss. (S. & M.) 110.
    If A, being the owner of a piece of land, conveys it to B, and B simultaneously, by warranty deed, conveys it back to him, the title will remain unchanged. This view is strengthened by the consideration that Pensoneau undertook, by warranty deed, to- convey the whole of this estate, when the evidence shows he owned only, three-fourths. Any title acquired by him subsequently must inure in favor of his grantee, and those claiming under him.
    Messrs. Hay & Knispel, for the appellee:
    The deed to Kraft was improperly admitted, as it fails to describe the land with sufficient certainty. The description is: “That part of the north-west quarter, etc., lying, outside of the town, containing 34^1- acres. ” This conveyance is void. Carter v. Barnes, 26 Ill. 454.
    When there is no priority of registry, the deed oldest in date takes preference, and the date of the deed is frinia facie evidence of the time of its execution. Meek v. Fowler, 14 Ark. 29; Castigan v. Gould, 5 Denio, 290; Noakes v. Martin, 15 Ill. 118; Deininger v. McConnel, 41 id. 227.
    Where an acknowledgment bears date subsequent to that of the execution of the deed, it does not rebut the presumption that the deed was delivered on the day it bears date. Deininger v. McConnel, 41 Ill. 227; Darst v. Bates, 51 id. 489.
   .Mr. Justice Scholfield

delivered the opinion of the Court:

Appellant brought ejectment, against appellee, in the court below, for a piece of land, particularly described in the declaration, and recovered a judgment only for the undivided three-fourths thereof. The sole controversy is in reference to the construction of two deeds affecting the land—one by Pensoneau' to Kraft, and the other by Kraft to Pensoneau.

A cross-error assigned by appellee in reference to the description of the property conveyed by the deed of Pensoneau to Kraft, first demands our attention. It is contended the description in that deed is too indefinite and uncertain .to convey the property in dispute, or any interest therein. The part of the description commented on is as follows: “Also another piece or parcel of land, being all that part of the north-west quarter of the south-west quarter of section 27, lying outside of the town, containing 34^^ of an acre. ” Taken by itself, undoubtedly, this is not sufficient. But the clear implication from the use of the words “the town, ” is, that some particular town, before referred to, is meant; and referring in the description to property previously described, we find a large number of lots in the “town of Athens, St. Clair county, State of Illinois, ” described, and the plat of that town referred to as a fixed monument." The w'ord “town” does not otherwise occur. So we know, to a moral certainty, that “that part of the north-west quarter of the- south-west quarter of section 27, lying outside of the town, ” means outside of the town of Athens, in S.t. Clair county. The town plat is a fixed monument, and any surveyor, by going to it, can fix, with precision, the location of this property. This court has ruled that .any description by which the property might be identified by a competent surveyor with reasonable certainty, either with or without the aid of extrinsic evidence, is sufficient. Colcord v. Alexander, 67 Ill. 581; Chicago Dock and Canal Co. v. Kinzie, 93 id. 415; Fowler v. The People, id. 116.

The deed from Pensoneau to Kraft is a warranty deed, bears date June 12, 1837, and conveys the whole title. The deed from Kraft to Pensoneau is a warranty deed, also, bears date June 10, 1838, and conveys the undivided one-fourth. Both deeds were acknowleged October 30, 1838. The delivery of the deed will be presumed to have been on the day it bears date, and in the absence of other proof the subsequent date of the certificate of acknowledgment can not overcome this presumption. Deininger v. McConnel, 41 Ill. 227; Jayne v. Gregg, 42 id. 413; Blake v. Fash, 44 id. 302; Hardin v. Osborn, 60 id. 93; Hardin v. Crate, 78 id. 533.

On the face of the deeds, therefore, the presumption is the deed from Pensoneau to Kraft is the elder.

But counsel insist the year 1837, in the deed of Pensoneau to Kraft, was a mistake,—that the year in which that deed was executed was 1838,—and this, he insists, is shown by a memorandum to the left of, and below, the signatures of the parties, running thus: “Interlined, altered and scratched out before signed—Belleville, June the twelfth, eighteen hundred and thirty-eight.” By whom .this .was made is not stated, nor is it shown, except by -the mere inference to be drawn from the date, that it was made when the deed was signed. Its position with reference to the signatures of the parties tends rather to prove .that it was made subsequent to the.signing of- the 'deed. We can not regard it as sufficient, alone, to show there was a mistake in the date of the deed.

But counsel insists these deeds were executed as parts of one and the same transaction, between the same parties, and to effect a single purpose, and being so executed, they should be read and ’construed together. For the purpose of proving they were-so executed, Kraft was called as a witness, and hé testified that he and Pensoneau had been in partnership, and "were tenants in common of the real estate described ini the two deeds; that .these deeds were prepared to dissolve and close up the partnership and to make partition of the realty, but on account" of the sickness of witness there was considerable delay about executing them after they had been prepared, and that they finally executed and delivered them as a part of one transaction, to effect a partition of said real estate. He .admits that his memory is not very clear, but says that is his best recollection. If the construction contended for by counsel for appellant is correct, the deed of Kraft to Pensoneau, as respects this property, is simply a nullity,—and so, also, is so .much" of Pensoneau’s deed to Kraft’as assumes to’ Convey moré than three-fourths of the title,—because, accórding to his.view, the grants were instantaneous ; and as to the one-fourth in Kraft, they neutralized each other. It is.not to be presumed the parties intended so useless and absurd a proceeding, and there is nothing in Kraft’s evidence tending to show that they did so intend. The covenants in Pensoneau’s deed were not broken by reason of the outstanding title to one-fourth in Kraft, at the time the deed was made, and he could maintain no action on that account; Beebe v. Swartwout, 3 Gilm. 178; Furness v. Williams, Adrar. 11 Ill. 240.

There are, therefore, 'two reasons why no title conveyed to Pensoneau by the deed of Kraft could -inure to the benefit of the title conveyed by Pensoneau to Kraft: First, such inuring is by way of estoppel, for the purpose of avoiding circuity of action; but since there could be no circuity of action here,—there being no liability on the covenants,—there is no foundation for the estoppel. (Gochenour v. Mowry, 33 Ill. 331; Jones v. King, 25 id. 383.) Secondly, the title which will inure is a title acquired subsequently. If we shall construe both grants so as to give effect, we must necessarily hold the deed of Pensoneau to Kraft conveyed what he had to convey, namely, three-fourths, and the deed of Kraft to Pensoneau conveyed what he had to convey, namely, one-fourth, the parties thus just swapping places. It is true this might have been more easily done by a deed of one-half from Pensoneau to Kraft; but it is done the other way, and effect is thereby given to both grants, while to hold Pensoneau conveyed to Kraft the whole, and took nothing himself, is to hold Kraft’s deed to Pensoneau accomplished nothing whatever. In either view, therefore, the judgment below is right, and must be affirmed.

Judgment affirmed.


text:
    Christopher C. Miller et al. v. Fannie McMannis et al.

      Filed at Mt. Vernon September 29, 1882.

    1. Error—as affecting jurisdiction. Where the court acquires jurisdiction in respect to lands in a suit for partition, and to assign dower, it will not be deprived of it by any error in the proceedings, or by any mistake made in the description of the lands set off as dower. Such mistake is a mere error affecting the dowress alone, and will not affect the validity of the decree under which the lands are sold under the proceeding for partition.
    2. Decree in partition—as to certainty in finding interests of the parties. On a bill for partition and for the assignment of dower, the court in its decree found that the ancestor died intestate, leaving A, his widow, and the other complainants and defendants, seven in number, who were named, his children and only heirs, and also died seized of the lands described in the decree, and that no other person's had any interest in such lands, and then ordered, adjudged and decreed “that partition be made of said real estate among the several parties to this suit, equally, according to their respective shares:” Held, that, taken in connection with the law, the finding of the respective interests of the parties was sufficiently certain.
    3. The finding in the decree that the deceased owner left a .widow, shows that she is entitled Under the statute to one^third of the lands for life, and a finding that there were seven, and only seven, heirs of the deceased, entitles each under the statute to one-seventh of the lands,—in other words, to an equal division among them. Had the parties derived title by deed, or under a will, it might have been necessary for the decree to have defined the interest of each specifically.
    4. Same—certainty as to lands ordered sold. A. decree was entered for the partition of certain lands described, and the assignment of a widow’s dower therein, and appointing commissioners to set off the dower and divide the lands, who, after assigning the dower, repotted that the_ balance of the lands could not be divided without manifest prejudice, etc. The court, after approving this report,' decreed that “the balance of said real estate not set off as aforesaid,” etc., “be sold by the master in chancery:” Held, that the decree of sale was not invalid for want of certainty as to the lands to be sold.
    5. Same—effect of decree as to power of master to convey. In partition, the decree ordered the master in chancery to sell the property, and take from the purchaser “a mortgage on the premises sold, to secure the payment of the purchase money. ” It was held, without reference to the question whether an order to sell, standing alone, would imply authority in the master to make a deed, the order to sell, coupled with the order to take a mortgage on the premises, would permit the implication of authority to convey.
    6. Judicial sale—confirmation of master’s sale—whether necessary. A sale under a valid decree of a court of equity, in other respects regular, can not be impeached .on the ground alone that the master failed to make report to the court and Obtain a decree of confirmation. But the better practice is to report such sale, and have it confirmed. The rule is different in guardian’s sales, as the statute requires a confirmation of them before the title .passes.
    Appeal from the Circuit Court of Massac county; the Hon. David -J. Baker, Judge, presiding.
    Mr. James C. Courtney, for the appellants:
    To give the court jurisdiction, the subject matter of the case must be presented, upon ■ which the court may act.
      Unknown Heirs v. Langworthy, 23 Ill. 484; United States v. Aredonda, 6 Pet. 709; Withers v. Patterson, 27 Texas, 491; Sheldon v. Newton, 3 Ohio St. 494.
    The subject matter in the case in which the decree was rendered, was the partition and assignment of dower in the real estate of Frederick Miller. Dower was assigned in other and different lands, and consequently the decree was void. Jackson v. Meyers, 14 Johns. 355. It was the duty of the court to ascertain and set out in the decree the respective shares of these parties. Gibbs v. Allen, 27 Ill. 119; Greenup v. Sewell, 18 id. 53; Herdman v. Short, id. 59. The court had no authority to delegate'this judicial power to the commissioners. McLain etai. v. Van Winkle, 79 Ill. 504; 24 id. 406; Cobb v. People, 84 id. 511; Hoagland v. Creed, 81 id. 506.
    If the widow was not • bound, the other parties are not. Decrees bind all parties or none. Williams et al. v. Chalfant, 82 Ill. 218; Brockman et al. v. McDonald, 16 id. 112; Rider et al. v. Alleyne, 2 Scam. 474; Bank v. Wilson, 14 Grant’s Ch. 473; Jackson v. Meyers, 14 Johns. 355.
    A decree of sale in a partition suit without a prior report of commissioners, is a nullity. George v. Murphy, 1 Mo. 558 ; Schuyler v. Marsh, 37 Barb. 356; Smith v. Moore’s Heirs, 6 Dana, 417; Newell v. Sadler, 16 Mass. 122.
    The court should not only render the decree itself, but it, when rendered, should be certain and specific. Welsh v. Louis et al. 31 Ill. 446; Morgan v. Pfeifer et ux. 56 id. 485. It must be such as may be readily understood, and capable of being performed. People ex rel. v. Pirfenbrink, 96 Ill. 68. If it does not conform to these requirements it is void for uncertainty. Mulvey v. Carpenter et al. 78 Ill. 580; Faulk v. Kellums, 54 id. 188; Avery v. Babcock, 35 id. 172; Carpenter v. Sherfy et al. 71 id. 427.
    Until a master has reported his sale, and it has been confirmed, no title will pass. Dills v. Jasper, 33 Ill. 262; Bozza
      v. Rowe, 30 id. 198; Yerby v. Hill, 16 Texas, 377; Williamson v. Berry, 8 How. 496; Griffith v. Fowler, 18 Vt. 394; Eakin v. Herbert, 4 Cold. 116; Rorer on Judicial Sales, 1; Henderson v. Herod, 23 Miss. 434; Dickerson v. Talbott, 14 B. Mon. 60; Freeman on Executions, sec. 311.
    The master or other person making the sale under the decree is the mere agent of the court. The court is the vendor at such sales, and the act of confirmation is the assent of the court to the contract of sale. Garrett v. Moss, 20 Ill. 549; Freeman v. Hurt, 3 Dana, 614; Gowan v. Jones, 10 S. & M. 164; Griffith v. Fowler, 18 Vt. 394; Andrews v. Scatton, 2 Bland, 629 ; Busey v. Hardin, 2 B. Mon. 407; Owen v. Owen, 5 Humph. 355; Campbell v. Johnson, 4 Dana, 614; Sessions v. Peay, 23 Ark. 39.
    Messrs. C. N. & A. Gf. Damron, and Messrs. Green & Gilbert, for the appellees:
    The presumption of jurisdiction of both the subject matter and of the persons who are parties to a suit, in a court of general jurisdiction, is always indulged in favor of the judgments and decrees of such courts, when attacked collaterally. Pensoneau v. Heinrich, 54 Ill. 271; Mulford et al. v. Stelzenbach et al. 46 id. 303; Osgood v. Blackmore, 59 id. 261; Clark v. Thompson, 47 id. 25; Freeman on Judgments, (2d ed.) secs. 124, 125; Rorer on Judicial Sales, (ed. of 1873,) sec. 466.
    If the land set off for dower was misdescribed, the error affects :the dowress only, and can not affect the decree as to the land properly described. Utile per inutile non vitiatur. The decree, when considered as to all its findings, does sufficiently show the interest of the respective parties in interest. It finds there were seven, and only seven, heirs, and a widow. From these facts found the law will determine the rest.
    An order of confirmation is not essential to the validity of a master’s sale under a decree. Pensoneau v. Heinrich, 54 Ill. 273; 4 Kent’s Com. 192.

      The case of Dills v. Jasper, 33 Ill. 362, is overruled in Comstock v. Purple, 49 Ill. 158, and this last case is approved in Hill v. Hill, 58 Ill. 239.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by appellants, to recover-a certain tract of land in Johnson county, which they claimed to own as heirs at law of Frederick Miller, deceased. Appellees claimed title under a decree of sale rendered in the circuit court of Johnson county, in a proceeding instituted by the widow of Frederick Miller and a portion of the heirs, to assign dower, and partition the lands among the heirs of Miller. In the partition proceedings dower was assigned to the widow, and the residue of the lands was ordered sold, and the only question presented by the record is, whether the sale under the decree was sufficient to pass the title to the purchaser.

The first objection to the decree is, that the court had no jurisdiction of the subject matter of the suit, and this is based upon the theory that the land set off to the widow, Lavina Miller, was not described in the decree. It is no doubt true that a mistake was made in the description of the lands set off to the widow as her dower in the premises, but this does not establish the proposition that the court had no jurisdiction of the subject matter. Frederick Miller died seized of two hundred and sixty acres of land in Johnson county. These lands constituted the subject matter of the action of partition of which the court in which the proceeding was pending had jurisdiction, and although a mistake was made, and no part of the lands owned by the deceased was .in fact assigned to the widow, yet that mistake did not deprive the court of jurisdiction. It was a mere error, which affected the widow,—one which she might have availed of on appeal or writ of error,—but such error did not affect the validity of the decree under which the land here involved was sold. The land involved in this action was properly described in the decree of sale, and a sale was made under the decree, which was sufficient to pass title to the purchaser,', although an error was committed, in regard to the land assigned as dower.

' The next objection to the decree is, that the court did not adjudicate upon and determine the interests of the respective parties in the lands, but delegated that power to the commissioners who were appointed to assign dower and make partition. This position, in our judgment, is predicated upon a misapprehension of the decree. The court, as appears from the decree, found that Frederick Miller died intestate, leaving the complainant La vina Miller his widow, and the other complainants and defendants, seven in number, who, are named, his children and only heirs; that Miller died seized of certain lands, which are described in the decree, including the land in controversy; that no other persons have any interest in said lands. The decree then contains these words: “Jt is ordered, adjudged and decreed by the court, that partition be made of said real estate among the several parties to this suit, equally, according to their respective shares, ” etc. •The decree then appoints three persons therein named to make the partition. It will be observed that the court found that there were seven named persons, only heirs at law of Frederick Miller, deceased, and a widow, and that they were the only persons interested in the lands. Now, while perhaps it might have been more specific if the court had recited in the decree that the widow was entitled .to one-third of the lands for life, and each of the seven heirs to one-seventh of the remainder in fee, yet, when the law is applied to the facts found, it amounts to the same thing. The finding that there was a widow, entitled her, under the statute, to' one-third of the lands for life, and the finding that there were seven, and only seven, heirs, entitled each, under the statute, to one-seventh of the lands,—in other words, to an equal division ámong the séven' heirs, after the dower had been set off to the widow. Had the parties derived title to the lands by deed, or under a will, then it might have been necessary for the court, in the decree, to have gone on and found specifically the interest of each of the parties in the land. But when the court find that Frederick Miller died intestate,— seized of the lands,—leaving a widow, Lavina, and seven children, who were his only heirs, and ordered the lands divided equally, according to their respective shares," such, in view of the law of descents, was a finding that the widow owned a third for life, and each of the heirs an undivided seventh.

- It is also urged that the decree of sale is invalid, because it is uncertain as to the lands to be sold. The commissioners, after assigning dower to the widow, reported that the balance of the lands could not be divided without manifest prejudice to the interest of the owners, and the court, after approving the report, decreed that the “balance of said real estate not set off, as aforesaid, to Lavina Miller, be sold by the master in chancery.” We perceive no valid objection to the decree as respects the description of the lands. All the lands embraced in the decree were ordered sold, except that part set off to the widow. The report and decree showed what had been set off and what remained, and there could be no uncertainty in regard to the lands ordered sold.

It is next urged that the sale under the decree did not pass the title to the lands sold, because it was not confirmed by the court. The law requires a guardian!s sale to be confirmed in order to vest the title to lands sold under a decree, as held in Young v. Keogh, 11 Ill. 642, and Young v. Dowling, 15 id. 482. But this is owing to the language of the statute which authorizes the sale of lands belonging to a minor by a guardian, and the rule established in that class of eases has no application to a sale made by a master in chancery under a decree of a court of equity. In a sale of this character it is usual, and the better practice, for the master to report the sale to the court, and for the court to enter a decree of confirmation; but when this has not been done, we are not aware of ány case where "this court has held 'the sale -invalid. On ■ the other hand, we are satisfied that the law is well .settled that a sale under a valid decree, in other respects regular, can not be impeached on the ground alone that the master in chancery failed to make report to the court and obtain a decree of confirmation.

It is also claimed that the decree did not empower the master to make a deed, and hence the deed did not pass the title to the premises. The decree orders the master in chancery to sell the property, and take from the purchaser “a mortgage on the premises sold, to secure the payment of the purchase money. ” Whether an order to'sell, standing alone, would imply - authority to make a deed, need not here be determined, as the order in the decree directing the master to take a mortgage on the premises sold would seem to leave no room to doubt the authority to make á deed. The clear implication from the authority to sell and take a mortgage is, that the master^ in making sale, should deed'the premises.

In conclusion, we are of opinion that the decree and the deed read in evidence were sufficient, in this collateral proceeding, to prove that whatever title the plaintiffs originally had to the premises, "passed from them under the sale made by the master in -chancery.

The judgment of the circuit court will be affirmed.

Judgment affirmed.