Fash v. Blake

Mr. Justice Breese delivered the opinion of the Court: The objection that the deed of Simeon Dolph to Joshua Aiken was not an operative conveyance sufficient to convey the fee in the land described in it, we do not think well taken. Many of the forms at one time considered indispensable in the conveyance of lands, are now in a great measure disused and any writing under seal plainly evincing an intention to convey the fee in land will be adjudged to have that effect. It has been determined by this court that a deed of release and quit claim, containing no words of sale or conveyance, is as effectual for the purpose of transferring title to land, as a formal deed of bargain and sale. McConnell v. Reed, 4 Scam. 117. We do not consider the words “ release and forever quit claim” of more significance or of greater potency in a conveyance of land than the words used in the deed from Dolph. In that deed the words used are “ assign, transfer, and set over” all my right, title, claim and demand to a tract of land, &c., describing it. Worcester, in his valuable dictionary, defines the word assign to be, “ to make over a right to another”—“ to assign an estate or other property,” and “ transfer,” delivery or conveyance of property, right or title to another. We hold, then, the deed of Dolph to Aiken, was an operative conveyance carrying the fee in the land. The proof of its execution was made in the usual way, one of the witnesses being proved to be dead, and the other beyond the limits of the State. Testimony was taken to prove the hand-writing of the grantor, and that made a prima facie case, and being uncontradicted, was sufficient for the purpose. It is difficult to swear positively to the hand-writing of any person, however well known it may be. These witnesses, the Selbys, did not swear positively they had ever seen Dolph write, but believed they had, and believed they knew his hand-writing, and that the deed produced was signed by him. In the absence of any other testimony, this was strong persuasive evidence for the jury, to prove the signature of the grantor. The next point made by appellant is, that Mark M. Aiken and Henry W. Sargeant were not competent witnesses for the plaintiff. The facts are, that Dolph owned the west half of the southeast of one, town 8 north, range 7 west, which he conveyed to Joshua Aiken by the deed on which we have commented. One Hardy entered and purchased of the United States, the east half of the same quarter, which he conveyed to Mark M. Aiken, who conveyed by warranty deed to Joshua Aiken, who then had title to the whole quarter section. Joshua Aiken and wife conveyed the land to Benjamin F. Lee, by deed, duly acknowledged November 9, 1835. Lee conveyed the land to H. W. Sargeant, by deed of general warranty, November 13, 1837, and Sargeant and wife conveyed to Anson Blake, by deed of general warranty, dated October 1, 1840, duly acknowledged and recorded. It will be observed that Aiken had executed no conveyance for the land in controversy, it being the west half, he, Aiken, having conveyed the east half, consequently he could have no interest in a controversy in relation to land with which he was in no manner connected. As to Sargeant, his deed to Blake is a deed with full covenants, and for the west half, together with other parcels, making up one-half section or three hundred and twenty acres of land. We do not understand why the covenantee, Blake, could not release his covenantor by a proper instrument in writing for such purpose, which the release offered in evidence, is not denied to be. The release is for a valuable consideration, is under seal, and has been accepted by the covenantor, and. he could undoubtedly, plead it in bar of any action which might be brought on his covenants. After his release his interest in favor of Blake could only arise from the possibility of there being an outstanding paramount title, which might evict the appellant in the event of his retaining the possession, and thus leave him at liberty to sue on the covenants, but with this title before us, this interest seems too remote to disqualify the witness. Besides, the objection to the deposition on the ground of incompetency of the witness, should have been made before the trial. Mosier v. Knox College, 32 Ill. 155. An objection is made to the introduction of the deed from Lee to Sargeant, but the character of the objection is not disclosed. The record shows an acknowledgment of the deed before a Notary Public of the City of New York, which, though not exactly formal, is substantially in compliance with the requirements of the statute. It states “ he acknowledged the same to be his free act and deed for the purposes therein mentioned. A point is raised on the fact, though not pressed, that Sargeant had conveyed this land to one Ann Davis, long before he conveyed to Blake, and the deed being in the hands of Blake, and unrecorded, he re-delivered it to Sargeant, who, thereupon, by advice of counsel, executed a deed to Blake, he destroying the deed to Ann Davis. Why this was done is unexplained. But if, notwithstanding the destruction of the Davis deed, the legal title remained in her, she conveyed it to Blake, by deed, dated August 1, 1858, so that in. either view, the legal title vested in Blake. But it is insisted the legal title is out of Blake by reason of certain proceedings in bankruptcy by which he was declared a bankrupt, and this land sold by his assignee to John Cockle, and by him conveyed to appellant. Before a party can avail of proceedings in bankruptcy, by which title to land is claimed, it is necessary he should produce the decree of bankruptcy, as all subsequent proceedings must have that for a basis. This was not produced. This court held in Joy v. Berdell, 25 Ill. 537, if a deed from the assignee in bankruptcy had the requisite recitals, and a copy of the decree is produced, it will he conclusive on a trial in ejectment. To the same effect is the case of Holbrook v. Coney et al., lb. 543, and Holbrook v. Brenner, 31 lb. 502. There having been no decree shown, it is deemed unnecessary to notice the other points made by appellant. Perceiving no error in the record, the judgment is affirmed. Judgment affirmed.