Drake v. Root

Hallett, O. J. The act which exempts homesteads from execution and sale, under process of law (R. S. 385), contains no provision as to selling of conveying, such property, except by way of mortgage. By the sixth section it appears that a wife must join in a mortgage of the homestead, but nothing is said as to any other conveyance, and, therefore, all others must be governed by the general law regulating conveyances of real estate. It will not be contended that by living upon a tract of land the owner will lose the right to alienate it, and as to the wife, under the general law (R. S. 259), she has no right of dower, and by the fourth section of this act, she has a right in that homestead only of which the husband is seized at the time, of his death, But, if it was necessary that the wife of Lester Drake should join in the deed to defendant in error, that was done, and the instrument was executed and acknowledged in the manner required by section six of the act. In Illinois, the statute seems to require an express waiver of the exemption, on the part of both husband and wife, and therefore the authorities in that State are not in point. Van Zant v. Van Zant, 23 Ill. 536. Again, it does not appear that Lester Drake had caused the word “homestead” to be entered in the — 690 — margin of the record of his title, as required by the second section of the act. What is meant by the record of title, whether one or all of the conveyances that make out the chain is not pointed out, but probably a reasonable construction would require that the entry should be made in the margin of the record of the deed, by which the claimant of the homestead acquired his interest. No reason is perceived for dispensing with this entry, which was manifestly intended to give notice to the world of the peculiar conditions affecting the property. We have no difficulty in saying that the deed was properly received in evidence, and as it contained a covenant of warranty, the grantor was thereby precluded from denying that he had the estate which he assumed to convey. Van Rensselaer v. Kearney, 11 How. 297; French v. Spencer, 21 id. 228; Goodtitle v. Bailey, 2 Cowper, 597. A grantor can never be allowed to set up a prior conveyance made by himself to a third party, in order to defeat his own grant, and this was what was proposed by plain-: tiffs in error upon the trial. The offer to show by parol that-Lester Drake was to remain in possession of the premises for one year after the grant, was opposed to the statute (R. S. 107), the ninth section of which declares that all conveyances of real estate, and of any interest therein duly executed and delivered, shall be held to carry with them the right to immediate possession of the premises or interest conveyed, unless a future day for the possession is therein specified. This provision accords with the general rule by which a contract or agreement becomes effectual from its date if there is nothing upon the face of it to indicate that the parties intend that it shall take effect at some other time. As defined by the legislature, the rule certainly requires that the intention to postpone the operation of the deed to a future day shall be declared in the instrument itself. As, therefore, the law required written evidence of the fact which plaintiffs in error were seeking to prove, oral testimony could not be received to establish it. 2 Starkie’s Ev. 753. If we regard the testimony offered as contradicting — 691 — the deed, the rule is the same, for says Mr. Starkie at page 757 : “As oral evidence is inadmissible either as a substitute for a written instrument required by law, or to give effect and operation to such an instrument where it is defective, it follows a fortiori, that it is not admissible to contradict or even to vary any instrument to which an exclusive operation is given by law, whether that exclusive quality result from a peremptory rule of law or from private compact.” To illustrate the rule a case is cited from 5 B. & C. 109, Williams v. Jones, where two persons agreed to enter into partnership as attorneys, no time being mentioned, and it was held that the partnership commenced from the time of the agreement, and evidence was inadmissible to show that the agreement was not to take effect until a future day. It will be observed in the case at bar that under the deed as written the grantee was, by the statute, invested with the right to immediate possession, and this effect and operation of the deed it was proposed to contradict by parol. That this could not be done appears to be clear upon principle and authority. Oral testimony as to the existence and contents of the bond to reconvey, alleged to have been given at the time of the execution of the deed, was of course incompetent in the absence of evidence to show the loss or destruction of the instrument. I do not find that the bond was produced, or that any offer was made to prove that it was-executed, to be followed by evidence of its loss or destruction, according to the usual practice. If any such bond was given, and by its terms it appears that the deed was intended as a mortgage, it will have an important bearing upon the case. To anticipate a defense which may possibly exist and may be interposed at another trial, it may be well to remark that we incline to the opinion that until forfeiture a mortgage should be regarded as a security merely which confers no right of entry upon the mortgagee. 3 Wash. Real Property, 99 et seq. Attention is asked to the evidence as to the occupancy of Eugene Drake at the time the suit was commenced, which shows that he was a member of his father’s family, and residing with them upon the — 692 — premises in controversy, but fails to disclose that he was asserting any ownership or right of possession in the land. The fourth section of the act governing ejectments (R. S. 273) provides that the action shall be brought against the actual occupant, if there be one, but this does not refer to all who may reside upon the premises. A farmer may employ persons to cultivate the soil, and a manufacturer may have many persons employed in his factory, who would not be occupants in the sense of this act. So if one should keep a boarding-house it would be hard to say that all occupants of his house would be liable in ejectment for his act in withholding the premises against a superior title. Chiniquy v. Catholic Bishop of Chicago, 41 Ill. 148. I do not perceive that Eugene Drake, residing in his father’s family and not otherwise occupying the premises, could be subjected to the costs of this suit, but as the question was not raised in the court below, we should give little attention to it here if there was no greater error in the record. A party who allows a verdict and judgment to be taken against him without objection, the only effect of the judgment being to subject him to costs, should not ask to be relieved in this court. The finding of the jury is a more serious matter, for by the seventh clause of the twentieth section of the act (R S. 277), it is provided that the verdict shall specify the estate which shall have been established upon the trial by the plaintiff, whether in fee or for life, or a term of years, or a right of possession and occupancy only. By the eighth section, the plaintiff is required to set forth the estate which he hath in the premises; and by the twenty-third section, the judgment is to be given according to the verdict, while by the twenty-fifth section the judgment is made conclusive as to the title established at the trial. Thus, in the pleadings, as well as in the verdict and judgment, the estate or interest of the plaintiff in the property is made a matter of substance, which is not upon any account to be overlooked or omitted. In this declaration, we have three counts, in the first of which the plaintiff claimed title in fee; in the second, by purchase — 693 — from Lester Drake, and in the third by purchase and by possession and occupation under the laws of the United States, and the laws of the Territory of Colorado, and the local laws, usages and customs of Lake Grulch district, in which said lands are situated. Inasmuch as one may purchase a fee or a life estate, or any other interest in land, it is difficult to perceive how the language of the second count can be interpreted as an averment of title, and therefore that count may be disregarded. It is true, that by the last clause of the eighth section, if he claim a right to occupy and possess the premises under local law or otherwise, the plaintiff must state whether he is an original locator or purchaser, but in that case, the character of purchaser is a part only of the statement of his right, and not the whole of it. He holds by force of territorial or local law and usage, whether he is an original locator, or purchaser from some other locator, and the statute requires that he shall add to the description of his general right to occupy and possess the premises, a statement showing whether he is the locator or purchaser. If, however, we take into view the first and third counts only, they differ as to the title, and whether the jury intended to say that defendant in error owned in fee as averred in the first count, or that he had a right to occupy and possess as averred in the third count, we are utterly unable to say. If there was but one count in the declaration, the finding would manifestly refer to that, and when the verdict is that the plaintiff is the owner of the premises without more, it has been said that it will be interpreted as meaning that he is the owner in fee. Hadlock v. Hadlock, 22 Ill. 384. But here the finding is that defendant in error is owner as averred in the declaration, and it must be applied to one or the other of the counts, to make it effectual. To say that it means both counts as in some forms of action, we say that a verdict for the plaintiff establishes the truth of all that is charged in the declaration, involves the absurdity of supposing that the jury intended to find a fee together with a less estate in the same person. A little care on the part of counsel will secure verdicts in due form, and — 694 — according to the statute, and that result cannot be obtained by straining language beyond its ordinary meaning, or inventing rules of construction in support of defective verdicts. The judgment of the district court will be reversed with costs, and the cause remanded for a new trial. Reversed.