l. A justice of the peace was not authorized by the laws of
Illinois, in 1818, to take the acknowledgment or proof, without the
state, of deeds of land situated within the state, but this want of
authority was remedied by a statute passed on the 22d of February,
1847.
2. In aid of the certificate of acknowledgment or proof of a
deed, reference may be had to the instrument itself or to any part
of it.
Thus, where a law of Illinois in force in 1847 provided that no
officer should take the acknowledgment of any person unless such
person should be personally known to him to be the real person who
executed the deed and in whose name such acknowledgment was
proposed to be made or should be proved to be such by a credible
witness, and that such personal knowledge or proof should be stated
in the certificate, and the certificate of the officer, following
immediately after the attestation clause of the deed, stated that
the "above-named grantor, who has signed, sealed, and delivered the
above instrument of writing, personally appeared" before the
officer and acknowledged the same to be his free act and deed, but
omitted to state that the person making the acknowledgment was
personally known to the officer to be the person who executed the
deed,
held that the omission was supplied by reference to
the attestation clause, which declared that the instrument was
"signed, sealed, and delivered" in presence of the subscribing
witnesses, of whom the officer taking the acknowledgment was
one.
3. It will be presumed that a commissioner of deeds in New York,
whose authority to act is limited only to his county, exercised his
office within the territorial limits for which he was appointed,
although the only venue given to his certificate of acknowledgment
be "State of New York." If such were not the presumption, the
defect in this particular
held to be supplied in this case
by reference to the deed and the previous certificate of
acknowledgment by the same person, in the first of which the
grantor designated the county in which he had affixed his hand and
seal to the instrument, and in the second of which the county is
given in its venue.
4. When a deed showed that one Wooster was a subscribing witness
with the officer, and the certificate of proof given by the officer
stated that "Wooster, one of the subscribing witnesses," to the
officer known, came before him, and being sworn, said, that he saw
the grantor execute and acknowledge the deed,
held that
there was a substantial compliance with the statute requiring the
officer to certify that be knew the affiant to be a subscribing
witness.
5. Unless the statute of a state requires evidence of official
character to accompany the official act which it authorizes, none
is necessary. And where one state recognizes acts done in pursuance
of the laws of another state, its courts will take judicial
cognizance of those laws so far as it
Page 75 U. S. 514
may be necessary to determine the validity of the acts alleged
to be in conformity with them.
Thus where a statute of Illinois provided that deeds of land
within the state which had been or might thereafter be executed
without the state and within the United States and which had been
or might be acknowledged or proved in conformity with the laws of
the state where executed, were admissible to record in the counties
of Illinois in which the property was situated, and a deed executed
in New York was acknowledged before a judge of a court of record of
that state -- an officer authorized by the laws of New York to take
the acknowledgment and proof of deeds -- and the certificate of
this judge was not accompanied by any evidence of his official
character or that his certificate was in conformity with the laws
of that state,
held that no such certificate of conformity
was necessary for the reasons given above.
The action was ejectment to recover the possession of certain
real property situated in the County of Bureau in the State of
Illinois. Both parties claimed title from the same source -- a
patent of the United States issued to William T. Davenport in May,
1818. The points in dispute arose upon the deraignment of title
from the patentee.
The plaintiff produced in evidence the patent, a deed from the
patentee to one Hawley, dated in September, 1818, a deed from
Hawley to Thaddeus Munson, dated in December, 1818, and a deed from
Munson to William James, dated in February, 1819, all of which
embraced the demanded premises. The deeds were inscribed upon the
record in the proper register's office in May, 1819. Those from
Davenport to Hawley and from Hawley to Munson contained this
endorsement (unsigned by the recorder) of the fact:
"RECORDER'S OFFICE"
"EDWARDSVILLE, May 17th, 1819"
"I certify the within deeds, together with the certificates of
acknowledgment, are this day recorded and examined in my office, in
Book V, p. 353 and 354. [
Footnote
1]"
William James died in 1832 leaving several heirs-at-law. The
premises in controversy were allotted in severalty to
Page 75 U. S. 515
John B. James, by a decree of one of the circuit courts of the
state in a suit for partition between him and his coheirs. John B.
James died in 1844, leaving a will by which he devised the premises
to the plaintiff. The record of partition and the record of the
will and of its probate were produced in evidence.
The defendants, also relying upon the patent of the United
States to Davenport, introduced in evidence a conveyance of the
premises, from the patentee, to one De Witt bearing date in August,
1818, and a conveyance from the heirs of De Witt to himself bearing
date in July, 1861. The first of these deeds was recorded in
December, 1861, and the other was recorded in February, 1862.
Beginning with the plaintiff's case. The deed from Davenport to
Hawley concluded with the following attestation clause:
"In witness of all the foregoing, I have hereunto fixed my hand
and seal,
at Albany, in the County of Albany and State of New
York, this first day of September, one thousand eight hundred
and eighteen."
"WM. T. DAVENPORT [L.S.]"
"Signed, sealed, and delivered in the presence of"
"WM. D. WOOSTER"
"H. WENDELL, JR."
The certificate of acknowledgment following immediately after
the above clause, was thus:
"STATE OF NEW YORK,"
"COUNTY OF ALBANY,
ss."
"Be it remembered, that on the first day of September, 1818, the
above-named William T. Davenport, who has signed, sealed, and
delivered the above instrument of writing,
personally
appeared before me, the undersigned justice of the peace, and
acknowledged, in due form of law, the same to be his free act and
deed, for the purposes therein set forth, and also gave his
consent, that the same should be recorded wherever it might be
deemed necessary. In witness of all of which, the said justice
Page 75 U. S. 516
has hereunto affixed his hand and seal, and undersigned the
same."
"H. WENDELL, JR. [L.S.]"
"
Justice of the Peace"
[The reader will note that the magistrate who takes the
acknowledgment was a subscribing witness to the execution, but that
nothing is said as to the grantor's being known to him, as the real
party who signed the deed.]
A certificate of the official character of Wendell as a justice
of the peace at the time he took the above acknowledgment from a
clerk of a court of record of New York accompanied the above
certificate.
In addition to the record of acknowledgment, there was upon this
deed from Davenport a certificate (by the same magistrate who took
the acknowledgment) of the proof of execution by the person who
with him had attested the execution as a subscribing witness. That
certificate ran thus, no particular city or town being given as the
place where it was made:
"STATE OF NEW YORK:"
"On this second day of September, 1818, before me came William
D. Wooster, one of the subscribing witnesses to the within
indenture, to me known, who being sworn, saith that he saw the
within-named grantor, William T. Davenport, duly execute and
acknowledge the within indenture, and that he knows him to be the
same person named and described in, and who acknowledged duty to
have executed the same as his free act and deed. I allow the same
to be recorded."
"H. WENDELL, JR."
"Commissioner &c."
[The magistrate taking this probate, it will be observed, signs
himself Commissioner &c. By the statute of New York in force on
the 2d of September, 1818, commissioners of deeds were authorized
to take the acknowledgment and proof of deeds [
Footnote 2] for the county where they
resided.]
Page 75 U. S. 517
A certificate of the official character of Wendell as a
commissioner of deeds and of his authority to take the proof of
deeds at the time when the above-mentioned proof was taken
accompanied the certificate just mentioned.
So far as respected the deed from Davenport.
The commencement of the deed from Munson to James was as
follows:
"This indenture, made the thirteenth day of February in the year
of our Lord one thousand eight hundred and nineteen between
Thaddeus Munson,
of the City and County of Albany and State of
New York, of the first part, and William James, of the
city, county, and state aforesaid, of the second part,
witnesseth &c."
The certificate of acknowledgment to this was with the same
general form of place of making as was the last deed.
"STATE OF NEW YORK,
ss."
"Be it remembered, that on this thirteenth day of February in
the year of our Lord one thousand eight hundred and nineteen came
before me the above-named Thaddeus Munson, to me well known, and
acknowledged to have signed, sealed and delivered the above deed
for the uses and purposes therein expressed. All which I certify
according to law, and allow the same to be recorded."
"ESTES HOWE"
"Judge, Albany Common Pleas, Counselor &c.,"
"ex-officio performing the duties of a Judge"
"of the Supreme Court at Chambers &c."
This certificate was unaccompanied by any evidence of the
official character of this judge or that his certificate was in
conformity with the laws of New York.
To the introduction of the several deeds produced by the
plaintiff objection was made on the ground that they had not been
duly proved. No specification was made of the particulars in which
the proof failed.
How far certain objections made on the argument here, and which
may perhaps be assumed to have been the true ground of objections
below, were well founded depended upon certain statutes of Illinois
now to be mentioned.
Page 75 U. S. 518
A statute of 1845, [
Footnote
3] which enacts that all deeds and other instruments relating
to or affecting the title to real property shall be recorded in the
county where the same was enacted in regard to the acknowledgment
&c. (prior acts as to acknowledgments not having required a
certificate of personal knowledge &c), as follows:
"No judge or other officer shall take the acknowledgment to any
deed unless the person offering to made such acknowledgment shall
be personally known to him to be the real person who executed the
deed, and in whose name such acknowledgment is proposed to be made
or shall be proved to be by a credible witness, and the judge or
officer taking such acknowledgment shall in his certificate thereof
state that such person was personally known to him to be the person
whose name is subscribed to such deed, as having executed the same,
or that he was proved to be such by a credible witness."
The statute further provided that the fact of such personal
knowledge or proof should be stated in the certificate.
At the time of this act, justices of the peace could not take
acknowledgments.
An Act of February 27, 1847, provided, however, that all deeds
of land lying within the state might be acknowledged or proved
before any commissioner of deeds and "before any justice of the
peace," but it enacted that:
"If such justice of the peace reside out of this state, there
shall be added to the deed a certificate of the proper clerk
setting forth that the person before whom the proof or
acknowledgment was made was a justice of the peace at the time of
making the same."
And then declared that:
"All deeds and conveyances
which have been or may be
acknowledged or proved in the manner prescribed by this section
shall be entitled to record, and be deemed as good and valid in law
in every respect as if the same had been acknowledged or proved in
the manner prescribed"
by a previous law.
Page 75 U. S. 520
The same act provided further:
"That deeds of lands situated within the state which have been
or may hereafter be executed without this state and within the
United States and which have been or may hereafter be acknowledged
or proved in conformity with the laws of the state, territory, or
district
in which they were executed shall be admitted to
record in the county wherein the lands are situated, and such deeds
&c., acknowledged or proved as aforesaid, when so recorded, may
be used as evidence without further proof of the execution
thereof."
It was agreed between the parties that the statutes of New York
and of Ohio were to be considered as evidence.
The court admitted the deeds notwithstanding the forms of
acknowledgment and proof.
When the record of partition in the suit between James and his
coheirs was produced, objection was made by the defendant on the
alleged ground that it did not show jurisdiction of the persons and
subject matter, but the objection was overruled and exception was
taken. No particulars in which the record failed to show
jurisdiction were stated with the objection. The record itself
showed, however, that some of the heirs were minors and that the
guardian
ad litem for these having filed his answer and
set up no opposition to the prayer of the bill, the bill had been
taken
pro confesso.
The court instructed the jury that if the heirs of William James
living at the time the proceedings for partition were commenced
were made parties to that suit, then whatever title William James
had at his death passed, by the operation of the decree in that
case to John B. James, and the court left the question whether his
heirs were made parties to the partition proceedings to the jury,
to be determined from the evidence.
To that part of the instructions of the court which left it to
the jury to say under what circumstances the decree in partition
was to vest title in John B. James the defendant excepted.
Another question perhaps involved, or at least one which
Page 75 U. S. 520
was discussed here was whether, admitting the deed from
Davenport to Hawley to have been in fact inscribed in the official
record books in the recorder's office, they were, with such
acknowledgment and proof as they had, to be considered as being
recorded in law, so as to give constructive notice to purchasers.
And this matter depended in part on certain provisions of the
already quoted act of 1845, thus:
"All deeds &c. which are required to be recorded shall take
effect and be in force from and after the time of filing the same
for record, and not before, as to all creditors and subsequent
purchasers without notice, and all such deeds and title papers
shall be adjudged void as to all such creditors and subsequent
purchasers without notice until the same shall be filed for
record."
"Deeds &c., shall be deemed, from the time of being filed
for record, notice to subsequent purchasers and creditors, though
not acknowledged or proven according to law."
The blank certificate [
Footnote
4] (not signed) on the back of the deeds by Davenport to Hawley
and from Hawley to Munson was read on the trial of the case,
without any objection thereto as evidence of the said recording,
and no objection was made that the said blank certificate was not
signed by the clerk or recorder, and no exception was taken to the
instruction of the court that the said deeds were recorded May 17,
1819.
On this part of the matter, the court instructed the jury that
the deed from Davenport to Hawley was recorded in the proper office
under the laws of Illinois before the deed from Davenport to De
Witt, and if Hawley was a purchaser for a valuable consideration
without notice of the unrecorded deed from Davenport to De Witt,
then Hawley and those claiming under him acquired a good title as
against De Witt and those claiming under him. The court was of the
opinion from the circumstances proven in this case that the law
would presume that the deed to Hawley was made upon and for a
valuable consideration. The court left
Page 75 U. S. 521
the question to the jury to decide whether Hawley had such
notice, and they were to determine whether there was notice or not
from the evidence.
To that part of the instructions which left it to the jury to
say whether or not Hawley was a
bona fide purchaser
without notice of any other deed from Davenport the defendant
excepted.
The jury rendered a verdict for the plaintiff, and judgment in
his favor was entered thereon.
Page 75 U. S. 524
MR. JUSTICE FIELD delivered the opinion of the Court.
To the introduction of the several deeds produced by the
plaintiff objection was taken that they were not duly proved, but
in what particulars the proof failed the objection does not
specify, and it is only by the brief of counsel that we are
informed.
General objections of this character are too vague to serve any
useful purpose, and under them particular defects in evidence or in
proceedings cannot be urged upon our notice if their consideration,
for want of specification, be opposed by the adverse party. Here,
however, no such opposition is made, and we will therefore proceed
to the consideration of the points raised in the brief of
counsel.
The deed from Davenport to Hawley was executed in New York, and
was acknowledged on the day of its date before a justice of the
peace of that state. The certificate of acknowledgment states that
the person who "signed, sealed, and delivered" the instrument,
"personally appeared" before the justice, but does not, in terms,
state that he was personally known to that officer. The justice
himself was one of the subscribing witnesses.
There is also attached to the deed a certificate of the proof of
its execution by the other subscribing witness. This certificate is
signed by the same person who took the acknowledgment, but not in
his capacity as justice of the peace, but
Page 75 U. S. 525
as commissioner of deeds. The certificate does not state that
the commissioner knew that the affiant was one of the subscribing
witnesses, nor does the affiant declare that he became such witness
at the request of the grantor.
The objections taken in the brief of counsel to the proof of the
deed bearing these certificates are in substance as follows:
1st. That the justice of the peace had no authority at the time
to take the acknowledgment;
2d. That the certificate of acknowledgment is defective in not
stating that the grantor was personally known to the officer,
and
3d. That the certificate of proof by one of the subscribing
witnesses is defective in not having any assignable locality and in
not stating that the affiant was known to the officer to be a
subscribing witness or that the affiant declared that he became
such at the request of the grantor.
It is true that at the time the acknowledgment was taken in
1818, a justice of the peace was not authorized by the laws of
Illinois to take the acknowledgment or proof of deeds without the
state. The only officers thus authorized were "mayors, chief
magistrates, or officers of the cities, towns, or places," where
the deeds were executed. [
Footnote
5] But this want of authority of the justice of the peace was
remedied by a statute passed on the 22d of February, 1847. The
first section of that statute provides that all deeds and
conveyances of land lying within the state may be acknowledged or
proved before certain officers named, and among others before any
commissioner of deeds and "before any justice of the peace," but
enacts that
"If such justice of the peace reside out of this state, there
shall be added to the deed a certificate of the proper clerk
setting forth that the person before whom such proof or
acknowledgment was made was a justice of the peace at the time of
making the same."
and then declares that
"All deeds and conveyances which have been or may be
acknowledged or proved
Page 75 U. S. 526
in the manner prescribed by this section shall be entitled to
record and be deemed as good and valid in law in every respect as
if the same had been acknowledged or proved in the manner
prescribed"
by a previous law providing for the acknowledgment and proof of
conveyances before certain officers both within and without the
state. [
Footnote 6]
The law of Illinois in force in 1818 did not require the officer
taking the acknowledgment of a deed to certify from his personal
knowledge to the identity of the party making the acknowledgment
with the grantor. It did not require the acknowledgment to be
certified in any particular form, except in case of a married
woman. A certificate, without declaring such identity or even
personal knowledge of the parties making the acknowledgment, was
held by the supreme court of that state to be as full and exact as
was contemplated by the law of 1819, a law which was identical in
terms, so far as it relates to the point under consideration, with
the law in force in 1818 except that the word "territory" was
changed to that of "state." [
Footnote 7]
But it may be said that the object of the act of 1847 was simply
to give authority to additional officers to take the acknowledgment
and proof of deeds and to cure their defect of authority in cases
where they had previously acted, and not to remedy defects in
certificates already given by them, and that therefore the statute
can only avail where the certificate conformed to the requirements
of the law then in force. If this be the correct interpretation of
the statute, we answer that the certificate to the deed in question
did, in substance, conform, when read in connection with the deed
itself, to the requirements of that law. In aid of the certificate,
reference may be had to the instrument itself or to any part of it.
It is the policy of the law to uphold certificates when substance
is found, and not to suffer conveyances, or the proof of them, to
be defeated by technical or unsubstantial objections.
The law of Illinois in force in 1847 upon the manner of
Page 75 U. S. 527
taking acknowledgments, provides that no officer shall take the
acknowledgment of any person, unless such person
"shall be personally known to him to be the real person who
[executed the deed], and in whose name such acknowledgment is
proposed to be made, or shall be proved to be such by a credible
witness,"
and such personal knowledge, or proof, shall be stated in the
certificate. [
Footnote 8]
Looking now to the deed itself, we find that the attestation
clause states that it was "signed, sealed, and delivered" in the
presence of the subscribing witnesses. One of these witnesses was
the justice of the peace before whom the acknowledgment was taken,
and he states in his certificate following immediately after the
attestation clause that the "above-named William T. Davenport, who
has signed, sealed, and delivered the above instrument of writing,
personally appeared" before him and acknowledged the same to be his
free act and deed. Read thus with the deed, the certificate amounts
to this, that the grantor personally appeared before the officer,
and in his presence signed, sealed, and delivered the instrument
and then acknowledged the same before him. An affirmation in the
words of the statute could not more clearly express the identity of
the grantor with the party making the acknowledgment.
But if we lay aside this acknowledgment as evidence, there
remains the certificate of proof made on the 2d of September, the
day following the execution of the instrument, before a
commissioner of deeds in the State of New York. At that time,
commissioners of deeds were authorized by a law of New York to take
the acknowledgment and proof of deeds, [
Footnote 9] and by the third section of the statute of
Illinois of 1847, deeds previously or which might be subsequently
executed without the state and within the United States,
acknowledged or proved in conformity with the law of the state
where executed, are admissible to record in the counties of
Illinois in which the property is situated, and
Page 75 U. S. 528
"when so recorded" may be used as evidence without further proof
of their execution. The terms "when so recorded" apply, we think,
equally to past records as to those which might be subsequently
made.
Now the certificate of proof produced in this case shows a
substantial conformity with the law of New York of 1813 on the
subject, which was in force when the certificate was made.
[
Footnote 10] The venue to
it is simply "State of New York," and it is objected that the
certificate has no assignable locality, and is therefore fatally
defective. In support of this position, the case of
Vance v.
Schuyler [
Footnote 11]
is cited. In that case, the Supreme Court of Illinois held a
certificate insufficient to authorize the admission of a deed
without proof of its execution because the only means of
determining where it was acknowledged was the venue, "
Lincoln
v. Wiscassett." This is a different case from the one at bar.
The words "State of New York" present some definite locality, at
least, while there can be none to the words "
Lincoln v.
Wiscasset." The commissioner of deeds in New York had
authority to act only in his county; and it will be presumed,
although the state be named, that the officer exercised his office
within the territorial limits for which he was appointed. [
Footnote 12] But if such were not
the presumption, the defect in this particular is supplied by
reference to the deed and the previous certificate of
acknowledgment by the same person. In the attestation clause of the
deed, the grantor declares that he has affixed his hand and seal to
the instrument, "at Albany, in the County of Albany and State of
New York," and the venue of the certificate of acknowledgment taken
on the previous day is "State of New York, County of Albany."
As already stated, courts will uphold a certificate if possible,
and for that purpose will resort to the instrument to which it is
attached. Thus, in
Brooks v. Chaplin, [
Footnote 13] the certificate
Page 75 U. S. 529
of acknowledgment did not show in what state the acknowledgment
was taken, and the omission was supplied by reference to the deed,
in which the grantor described himself as a "resident of Suffield,
in the County of Hartford and State of Connecticut." The
acknowledgment was taken two days after the date of the deed,
having as its venue simply "Hartford County" -- and the court said
that it was a fair presumption in the absence of evidence to the
contrary that the deed was executed at the time it bore date and at
the place of the grantor's residence and that, finding the
acknowledgment taken so soon afterwards in the County of Hartford,
it could intend no other than the same County of Hartford where the
deed was supposed to have been executed. "It is not indispensable,"
said the court,
"that the place of taking should fully appear from the
acknowledgment itself, provided it can be discovered with
sufficient certainty by inspection of the whole instrument."
There is good sense in this decision, and it answers the
particular objection of counsel just stated and the further
objection that the certificate does not state that the officer knew
that the party produced was a subscribing witness. The deed shows
that Wooster was a subscribing witness with the officer, and the
certificate states that "Wooster, one of the subscribing
witnesses," to the officer known, came before him, and being sworn,
said that he saw the grantor execute and acknowledge the indenture.
When the officer, being a subscribing witness himself with Wooster,
certifies that "Wooster, one of the subscribing witnesses," came
before him and was known to him, he does in fact certify that he
knew Wooster to be a subscribing witness as plainly as if he had
added those words. There is here a compliance, in substance if not
in form, with the statute, and that is all which is required. In
Luffborough v. Parker, [
Footnote 14] the certificate of proof stated that A.B.
appeared before the officer and made oath that he saw the grantor
sign, seal, execute, and deliver the deed, without stating that
A.B. was a subscribing
Page 75 U. S. 530
witness; but as it appeared upon the deed that A.B. was a
subscribing witness, the court held the certificate sufficient. The
statute of Pennsylvania under which the certificate was given
required the proof of deeds to be made by one or more of the
subscribing witnesses. "The act," said the court,
"must be substantially complied with, but when substance is
found, it is neither the duty nor the inclination of the court to
defeat conveyances by severe criticism on language."
The remaining objection to the certificate that it does not
appear from it that the subscribing witness became such at the
request of the grantor or signed his name at the time the deed was
executed is answered by the fact that the statute of New York under
which the certificate was made did not require any statement to
that effect. Besides, the fact that the witness was present at the
execution, which is all that is necessary, does sufficiently appear
from the deed, with which the certificate is to be read. In the
one, the declaration is made that the instrument was signed in his
presence, and in the other that he saw the grantor execute the
deed.
After a careful consideration of the several objections
presented by counsel, we are satisfied that the certificate of the
commissioner was sufficient under the act of New York of 1813 to
entitle the deed to be admitted to record in that state, had the
land been there situated, and to be read in evidence in her courts
without further proof of execution, and was entitled to like record
in the State of Illinois and to be received in evidence in like
manner in her courts under the third section of the statute of
1847.
The several objections urged by counsel to the other two deeds
produced by the plaintiff are, with one exception, sufficiently met
by what has already been said in answer to those taken to the deed
from Davenport. The certificate of acknowledgment to the deed from
Munson to James is given by the "judge of the Albany Common Pleas,"
an officer authorized at the time to take the acknowledgment
Page 75 U. S. 531
and proof of deeds by the laws of New York, and the objection
referred to not already met is that the certificate of this judge
is not accompanied by any evidence of his official character or
that his certificate was in conformity with the laws of that
state.
The answer to this objection is brief and conclusive. Unless the
statute requires evidence of official character to accompany the
official act which it authorizes, none is necessary. And where one
state recognizes acts done in pursuance of the laws of another
state, its courts will take judicial cognizance of those laws so
far as it may be necessary to determine the validity of the acts
alleged to be in conformity with them. In this case also, the laws
of New York are, by stipulation of parties, considered as evidence.
[
Footnote 15]
When the record of partition in the suit between James and his
coheirs was produced, objection was made by the defendant on the
alleged ground that it did not show jurisdiction of the persons and
subject matter, but wherein it failed to show such jurisdiction the
objection does not indicate, and it is no part of our duty to act
as counsel for the party and search for particulars to give point
to his objection. As it now stands, it is as vague and pointless as
would be a general objection to either party's right of recovery.
If the proof against the infant heirs was not as full as a due
regard for their rights should have exacted, it will be time for us
to consider that matter when they or parties representing them are
before the court. It is not a matter which defeated the
jurisdiction of the local tribunal in the partition, and it is not
a matter of any concern to the defendant, who was a stranger to and
in no way interested in the proceeding. [
Footnote 16]
There was no necessity for mutual releases between the parties
in order to clothe John B. James in severalty with the entire
ownership of the premises in controversy. The suit for partition
was under the statute of Illinois, which dispensed with the
necessity of mutual releases and authorized
Page 75 U. S. 532
the court to invest by its decree the several parties with the
title to the parcels respectively allotted to them, without
requiring conveyances. [
Footnote
17] And the decree rendered in the case declared, that the land
allotted should be held by the parties respectively, in fee simple,
in lieu of all their respective rights and interests previously
enjoyed in common in the entire tract.
The law of Illinois relating to the record of deeds and other
instruments affecting the title to real property differs materially
from the law of nearly every other state in the Union. In most
states these instruments can only be recorded after they have been
acknowledged or proved before certain designated officers and the
certificate of such acknowledgment or proof is attached. An
inscription upon the books of record of an instrument, without such
authentication, is considered a mere unofficial entry of the
register, constituting no record, and imparting no notice to
purchasers or creditors. [
Footnote 18]
But in Illinois the law requires all "deeds and other
instruments, relating to or affecting the title to real property"
with or without such authentication to be recorded, provides that
they shall not take effect, as to creditors and subsequent
purchasers without notice, until they are filed for record, and
enacts that
"they shall be deemed, from the time of being filed for record,
notice to subsequent purchasers and creditors, though not
acknowledged or proven according to law, but the same shall not be
read as evidence unless their execution be proved in manner
required by the rules of evidence applicable to such writings, so
as to supply the defects of such acknowledgment or proof. [
Footnote 19]"
Upon this state of the law, after the proof of the deeds
Page 75 U. S. 533
of the parties, and of their record, and the production of the
record of partition, and of the probated will of John B. James,
there could only be two matters of inquiry: one respecting the
identity of the heirs of William James, deceased, with the parties
to the partition suit, and the other whether there was notice to
Hawley, at the time he received his conveyance, of the unrecorded
deed from Davenport to De Witt. These matters were left to the jury
to determine, and rightly so left.
No question was raised in the court below upon the sufficiency
of the evidence that the deeds produced by the plaintiff were
recorded, at the time indicated by the endorsement thereon in May,
1819, nor was any exception taken to the instruction of the court
that the deed from Davenport to Hawley was recorded in the proper
office before the deed from Davenport to De Witt, nor was any
question raised or ruling asked upon the will produced of William
James, and therefore no point is presented thereon for our
consideration.
We perceive no substantial error in the record, and the judgment
of the court below must therefore be
Affirmed.
[
Footnote 1]
See infra, p. <|75 U.S. 520|>520.
[
Footnote 2]
Act of March 24, 1818.
[
Footnote 3]
Revised Laws, Chapter 24.
[
Footnote 4]
See supra, p. <|75 U.S. 514|>514.
[
Footnote 5]
Purple's Real Estate Statutes 462.
[
Footnote 6]
Laws of 1847, 37.
[
Footnote 7]
Ayres v. McConnel, 2 Scamon 308.
[
Footnote 8]
Revised Statutes of Illinois of 1845, chap. 24, § 20.
[
Footnote 9]
Act passed March 24, 1818.
[
Footnote 10]
"An act concerning deeds," passed April 12, 1813.
[
Footnote 11]
1 Gilman 163.
[
Footnote 12]
Thurman v. Cameron, 24 Wendell 87.
[
Footnote 13]
3 Vt. 281.
[
Footnote 14]
12 Sergeant & Rawle 48.
[
Footnote 15]
Vance v. Schuyler, 1 Gilman 160;
Secrist v.
Green, 3 Wall. 749.
[
Footnote 16]
Fridley v. Murphy, 25 Ill. 146;
Goudy v. Hall,
36
id. 318.
[
Footnote 17]
Street v. McConnell, 16
id. 126.
[
Footnote 18]
Carter v. Champion, 8 Conn. 555;
DeWitt v.
Moulton, 17 Me. 418;
Tillman v. Cowand, 12 Smedes
& Marshall 262;
Mitchell v. Mitchell, 3 Stewart &
Porter 83;
Kerns v. Swope, 2 Watts 75;
Miller's Lessee
v. Holt, 1 Tennessee 111.
[
Footnote 19]
Revised Laws of 1845, p. 108, 109, §§ 22, 23, and 28.
See also Reed v. Kemp, 16 Ill. 445.
