Chapin v. Curtenius

Treat, C. J. At the March term, 1852, of the Peoria circuit court, Curtenius & Griswold filed their declaration in ejectment against Davis, claiming to recover in fee the south-west quarter of section eighteen, township ten north, of range seven east. The parties appeared at the same term, and stipulated, that Davis was in the possession of the premises as the tenant of Chapin, and that the latter should be substituted as defendant. He thereupon pleaded not guilty. At the May term, 1853, the plaintiffs moved the court for leave to amend the declaration, by adding a count, making the heirs of Benjamin Freeman plaintiffs; and they filed an affidavit of their attorney in support of the motion. He stated that the record of a sale made by the guardian of the heirs of Freeman constituted a part of the plaintiffs’ title, they having purchased the premises at the sale, and paid the consideration in full, and received a deed in due form from the guardian; that the entire equitable interest ’ in the premises was in the plaintiffs; and when the suit was commenced, the affiant had not seen the record, the proceedings having been had in Montgomery county; and that on examination of the record, he thought there was a technical objection to its being read as a portion of the plaintiffs’ title. At the No-' vember term, 1853, the court sustained the motion, but required the plaintiffs to pay all the costs of the case up to that time. The plaintiffs thereupon added another count to the declaration, in which the premises were claimed in fee by the heirs of Freeman. The cause was then submitted to a jury for trial. The plaintiffs introduced the following evidence. 1. A patent for the premises, from the United States to Benjamin Freeman. 2. Proof that Freeman died intestate in 1841, leaving the persons named as plaintiffs to the second count his heirs at law, some of whom were still minors. 3. A record of the Montgomery circuit court, showing an application by the guardian of the heirs for the sale of the premises, an order of the court directing the sale, and a report of the guardian, showing a sale to the plaintiffs. 4. A deed from the guardian to the plaintiffs. The defendant then read in evidence a judgment of the Peoria circuit court, entered at the May term, 1845, against 'the premises and other real estate, for the taxes due thereon for the preceding year; also, a 'precept issued on the judgment, under which the premises were sold to Chapin on the 10th of June, 1855 ; and a sheriff’s deed to Chapin, bearing date the 21st of March, 1851. The plaintiffs then offered in evidence the following certificate : — “ State of Rlinois, Peoria county. Clerk’s office, county court, Peoria, January 10,1852, I, Charles Kettelle, clerk of said court, do hereby certify, that George Porter, agent for heirs of Benjamin Freeman, has this day paid me the sum of seven dollars and thirty-two cents, for redemption money due on the south-west quarter of section eighteen, township ten north, of range seven east, 155f acres of which were sold to Joseph Chapin by the sheriff of said county, in June, 1845, for the tax, interest, arid costs due thereon for the year 1844. Also the sum of five dollars and sixty-six cents, taxes and interest due thereon, for the year 1850. Charles Kettelle, Clerk.” The defendant objected to the introduction of the certificate, but the court admitted it in evidence. He then offered to prove affirmatively, that the certificate was issued without there being filed in the clerk’s office any evidence authorizing the redemption of the premises ; but the- court excluded the evidence. The court, against the objection of the defendant, allowed the plaintiffs to withdraw from the consideration of the jury, the record of the Montgomery circuit court, and the guardian’s deed. The jury found the defendant guilty of withholding the possession of the premises from the heirs of Freeman, in which they had an estate in fee-simple; and not guilty as to the plaintiffs, Curtenius & Griswold. The court refused to grant a new trial, and judgment was rendered on the verdict. 1. The court committed no error in permitting the declaration to be amended. Applications of this character are addressed to the sound discretion of the court; and we are not prepared to say that the discretion was improperly exercised in this instance. The statute declares: “ In any case other than where the action shall be brought for the recovery of dower, the declaration may contain several counts, and several parties may be named as plaintiffs jointly in one action, and separately in others. If it appear that one or more of the plaintiffs have a right to the possession of the premises, and one or more have not such right, the verdict shall specify for which plaintiff the jury find,-<1114 as to -which plaintiff they find for the defendant.” Under these provisions, the plaintiffs might originally have brought the suit precisely as it stood after the amendment was made. The allowance of the amendment was but carrying out the obvious design of the statute, that all questions affecting the title to the premises may be settled in one proceeding. It merely dispensed with the necessity of bringing another action in the joint names of the plaintiffs and the heirs of Freeman. The discretion of the court was not exercised to the prejudice of the defendant, for the plaintiffs were required to pay all the costs that had accrued in the case. 3. The act of the 36th of February, 1839, under which the premises were sold for taxes, provides that lands belonging to infants may be redeemed at any time within one year after the youngest of them shall arrive at the age of twenty-one years, by paying to the clerk of the county commissioners’ court “ double the amount for which the same was sold, and all taxes accruing after such sale, together with the interest on the amount of each year’s tax.” It further provides that “ any person claiming the right to redeem land under the provisions of this section, shall produce to the clerk of the county commissioners’ court of the proper county, the affidavit of some credible person, stating who owned the same at the time of the sale thereof; ”■ and “if there were several infant owners, stating that fact, and stating the age of the youngest of such infants ; and if the clerk shall be satisfied, from the facts stated in the affidavit, that the lands proposed to be redeemed are subject to redemption under the provisions of this section, or any other-law of the State, he shall file the affidavit so presented, and permit the lands to be redeemed, upon the conditions which are or may be required by law; and such redemption shall operate to restore to the owner or owners of the land, his, her, or their heirs or assigns, all rights which he, she, or they had in and to the land at the time of sale: Provided, however, that the certificate of redemption shall not be evidence of any other fact than that the redemption money was paid.” The certificate of redemption in this case being in proper form, was clearly admissible in evidence. It proved the payment of the redemption money by the heirs of Freeman ; and it appeared from the other evidence in the case that they had a clear right to redeem. This proof showed a valid redemption from the sale to the defendant, and that the heirs were reinstated in all their former rights in the premises. The certificate itself was not evidence of such a redemption. The statute only makes it evidence of the payment of the redemption money, leaving the right to redeem to be established by other proof. The question whether there has been a valid redemption of the lands of infants does not necessarily depend on the fact, that the clerk has or has not preserved the proof upon which the redemption was founded. The statute requires an affidavit of the facts to be presented to the clerk and filed by him. Two objects are contemplated by this requisition. The affidavit furnishes the evidence upon which the clerk is to determine the right of the party to redeem; and it is to be preserved for the benefit of all who may be interested in the land. The mere failure of the clerk to file the affidavit, ought not to prejudice the party making the redemption. If the evidence is not preserved, he should be permitted, when the validity of the redemption is drawn in question, to show that he had a good right to redeem. So if the decision of the clerk is not conclusive, and he allows a redemption upon insufficient proof, the party should be permitted to sustain his right to redeem when put in issue. The ruling of the court upon this branch of the case was unexceptionable. 3. There was no error in permitting the plaintiffs to withdraw the record and guardian’s deed. That evidence showed no title in Curtenius and Griswold. According to the construction given to our statute, in the case of Young v. Keogh, 11 Illinois, 642, the purchaser of real estate at a guardian’s sale acquires no title, unless the proceedings are reported by the guardian, and confirmed by the court. The deed of the guardian, without this confirmatory order of the court, vests no title in the purchaser. • In this case, the guardian made return of the proceedings, but they were not approved by the court. As these proceedings neither vested title in Curtenius and Griswold, nor diverted the title of the heirs of Freeman, they were properly withdrawn from the consideration of the jury. The judgment must be affirmed. Judgment affirmed.