Short v. Conlee

Bkeese, J. This was an action of ejectment to recover the possession of a certain tract of land in Jo Daviess county. The declaration was filed on the 27th of August, 1861, and a rule entered against the defendant to plead in twenty days. It appears that no plea was filed under the rule, but before any default was taken at the next October term of this court, E. S. Stickney, claiming to be the agent of the real owners of the premises, entered a motion supported by his affidavit for leave to file a plea. The affidavit is as follows: “E. S. Stickney, being first duly sworn, says he is the agent of the parties beneficially interested, and is the holder of the legal title to the land which the plaintiffs in the above entitled suit are seeking to recover. That this affiant and the parties interested in said land, knew nothing of the pendency of said suit until this term of said court, and until it was too late to file a plea, without leave. That the said defendant is a mere tenant, and has no further interest in said land. That the interest of this affiant, and the real owners of said land, will be prejudiced unless leave is granted to file a plea and defend said suit. And that they would have filed a plea in time, had they known of the pendency of said suit.” The motion was allowed, and the plea of not guilty filed, and this is assigned as error. It is true the statute requires the plea to be filed in twenty days after the declaration in ejectment, and notice is filed in court, and this rule must be complied with, unless good cause is shown for non-compliance. We think such cause is shown in the affidavit. The parties owning the land had no knowledge of the suit until it was too late to file a plea, the notice having been served on the defendant who was but a tenant, having and claiming no title to the land, and that a plea would have been filed if they had known of the pendency of the suit. These facts justified the court in allowing the motion. If a default had been taken, and it had been set aside by the court, error could not be assigned upon it. Such motions are addressed for the most part, to the discretion of the court, and if that be not grossly abused, error cannot be alleged. Harrison v. Clark, 1 Scam. 131; Wickersham v. The People, id. 130 ; Buckmaster v. Drake, 5 Gilm. 324. In ejectment causes, there is great propriety in exercising this discretion to prevent collusion between a tenant and claimant. The remaining error assigned is, in rejecting the deed offered in evidence. The plaintiffs in error insist that enough appears in the certificate of the commissioner to show that it was acknowledged by the grantors. The certificate is as follows : “ STATE OF MARYLAND, CITY AND COUNTY ON BALTIMORE. “Be it remembered, and it is hereby certified, that on the 30th day of September, A. D. one thousand eight hundred and forty-seven, before me the subscriber, commissioner of the-State of Illinois, for the State of Maryland, to administer oaths, take depositions, and the proof and acknowledgment of deeds, and other instruments in writing, to be used or recorded in said State of Illinois, personally appeared Charles Wyeth and Edward S. Morris, and Aurelia D. Morris, wife of the said Edward, personally known to the undersigned to be the identical persons who executed and whose names are subscribed to the foregoing deed of conveyance, as having executed the same to be their voluntary act and deed, for the purpose therein expressed. And the said Aurelia D., wife of the said Edward S. Morris, being by me made acquainted with the contents of said deed, and examined separate and apart from her husband, acknowledged that she executed the same, and relinquished her dower in the said premises therein mentioned, voluntarily, freely, and without the compulsion of her said husband, and that she does not wish to retract the same. In testimony whereof, I herewith set my hand and affix my official seal as commissioner of deeds, at my office, on the day and year aforesaid. JABBZ D. PRATT.” Section two, of the act authorizing the appointment of commissioners to take the acknowledgment of deeds, provides, that the acknowledgment shall be certified by the commissioner under his hand and seal, and taken in the manner directed by the laws of this State, with respect to the acknowledgment or proof of deeds taken by an officer, authorized to take such acknowledgments residing in this State. (Scates’ Comp. 1135.) Our conveyance act, section sixteen, provides that deeds, etc., for the conveyance of real estate in this State, before they shall be entitled to record, shall be subscribed by the party or parties thereto in proper person, and acknowledged or proved before one of the following officers, etc. (Id. 962.) The twentieth section provides that no judge or other officer shall take the acknowledgment of any person to a deed, unless the person offering to make such acknowledgment shall he personally known to him to be the real person, who, and in whose name such acknowledgment is proposed to be made, or shall be proved to be such by a credible witness. (Id. 963.) . Section twenty-two pro vides,'that deeds and other instruments relating to or affecting the title to real estate in this State, shall be recorded in the county in which it lies, etc. (Id. 969.) Section twenty-five provides, that every deed, conveyance, etc., concerning any lands, tenements, etc., which, by virtue of this chapter, shall be required or entitled to be recorded as aforesaid, being acknowledged or proved according to the provisions of this chapter, whether the same be recorded or not, may be read in evidence without any further proof of the execution thereof. (Id. 974.) It must be perceived from all the legislation upon this subject, that one fact must prominently appear in the certificate, that the party executing the deed did in fact acknowledge it to the officer to be his deed. Nothing less than this will satisfy the requirements of the statute. Perhaps the word acknowledge need not be used, if some word equivalent to it is found in its place. As applied to deeds, an acknowledgment means nothing more than the act of the grantor going before a competent officer, and then and there to him acknowledging or declaring the instrument produced, to be his act and deed. The mere fact that the grantor appeared before the officer, and., that the officer personally knew him as the identical person who executed, and whose name is subscribed to the deed as having executed the same, do not amount to a declaration that the grantor in fact executed the deed. It is no doubt true, the parties appeared before the commissioner for the purpose of acknowledging the deed, we may well suppose so, but we cannot by intendment or construction place the word acknowledge in a certificate that does not contain it. It is properly urged by the appellants that to say “having executed” a deed is equivalent to saying he acknowledged it, but that is not said in the certificate. The grantor must say that he executed the deed, which, in this certificate, he does not seem to say. But it is urged, the default is cured by the act of 1853, commonly called the “ confirmatory act,” Feb. 11, 1853. (Scates’ Comp. 966.) That statute applies to deeds made by husband and wife, and was enacted to cure any defective statement of such particulars in the certificate, as section seventeen and twenty-one of the conveyance act required to be set forth, and must be construed in reference to those sections. For such defects and formalities, etc., the deed is not tobe adjudged invalid, but it does not provide, that notwithstanding such defects, etc., the deed may be read in evidence. The act was evidently designed to apply to cases where the particulars of an acknowledgment were defectively set forth, not to cases where the fact of acknowledgment is entirely omitted. This is a statutory requirement, and the courts can do no less than enforce the statute even at the hazard of individual loss. Perceiving no error in the record, the judgment must be affirmed.' Judgment affirmed.