Deininger v. McConnel

Mr. Chief Justice Walker delivered the opinion of the Court: This was an action of ejectment, for the recovery of the H. E. quarter of section 23, T. 15, H. E. 7, E. 4 principal meridian, in Bureau county. Issue was joined, and a trial was had. Appellee traced title from the United States to himself. In his chain of title, was a deed executed hy Daniels, the patentee, to Horace Jones, dated October 14,1818. On this deed there were two certificates of acknowledgment made in the State of Hew York; one on the date of the deed, given by a notary public, and the other dated on the 29th of the same month, and given by- a commissioner. This deed appears to have been recorded at Edwardsville, on the 19th day of January, 1819. Appellants offered in evidence the copy of a deed, duly certified by the clerk, which purported to have been recorded in Bureau county, and appeared to have' been executed by Daniels, the patentee, to one Parkus Willard. It purported to convey the undivided half of the land in controversy, and was dated on the seventh day of October, 1818, seven days before the other, introduced by appellee. It was also acknowledged, in Hew York, before a commissioner, on the 13th of March, 1819, and recorded on the 3d of January, 1820, at Edwards-ville. The offer to read this copy in evidence was based upon an affidavit, stating that the original deed was not, nor had “ it ever been in the possession, power or control of the defendants, or either of them, or their attorney, or agent, and was not in their power, or of either of them, to produce the original on the trial.” Against the objection of appellee the copy was admitted in evidence. The court found for plaintiff below, and rendered a judgment against defendant, from which he appeals to this court. It is urged, that this copy of a deed, read in evidence, showed an outstanding title for one-half of the land, and, as appellee had sued for the whole quarter, he was not entitled to recover either the whole or an undivided half. This question turns upon the effect which shall be given to the two deeds executed by Daniels, the patentee. They were executed in another State, and were attempted to be acknowledged before officers, who, at the time, had no authority to receive acknowledgments and grant certificates, under, our statutes then in force. They were also recorded before the passage of the act of December 30, 1822. The second section of that act (Sess. Laws, 86) declares that all deeds and conveyances of land in this State, which had been executed and acknowledged in conformity with the laws of the State or territory in which they were executed, and which had been reduced to record, should be deemed and held to be duly executed and recorded in as full and perfect a manner as if such deeds and conveyances had been proved and acknowledged according to the laws of this State. Neither deed having been properly acknowledged to entitle it to record, when they were copied upon the record books, and both of them being precisely in the same situation when the act of 1822 was adopted, except the dates, the act could have no effect on one deed over the other. Each fell equally within the provisions of the act, and, as it did not validate either one over the other, it left them both simultaneously recorded, and, as at common law, the oldest deed must have the preference. By the deed of the seventh of October, the grantor held the undivided half of the land as against the grantee of the deed of the fourteenth of that month. And, as he obtained no advantage by the act of 1822, he was in no better condition after its passage than before. Noakes v. Martin, 15 Ill. 118. That case is decisive of that question. It is, however, insisted, that, as the acknowledgment of the first deed bears date after the latter was executed, we must, therefore, infer that the first deed was not delivered and did not become operative until the time of its acknowledgment. And, inasmuch as a delivery is essential to the validity of a deed, the deed of the patentee, bearing the later date, was the first to become operative to pass the title, and that it is, in fact, the elder deed. It is believed that the rule is well established, that the presumption must be indulged, that a deed was delivered at the time when it bears date. It may even be averred and proved, that it was delivered on a different day; but the presumption is, that it was on the same day, and that presumption must stand until the contrary is proved. McConnell v. Brown, Litt. Select Cases, 459; and numerous other authorities might be referred to in support of the proposition, if it were deemed necessary. It was also urged, that the deed, of which this was a copy, was not sealed. The copy, when produced, only showed the word “ seal ” in a scroll, at the place where the seal is usually placed. This, under our present statute, is all that is required; but it is urged, that the law had not authorized a scroll to be used at the time when this deed was executed, and the common law seal of wax or wafer would alone have answered. Admitting this to be true, still, in practice, the recorder never attaches a seal of wax to the transcript he makes of the original, but simply uses a scroll to represent a seal, sometimes writing therein the word “ seal.” And, when a copy from the record is produced, having such a representation, we must presume that the seal to the original was such as the law requires. It appears from the copy, that the grantor says that his seal was attached, and as a fao simile cannot be transferred to the record, it will be held good until it is shown that a proper seal was not attached. It was further urged, that Strong’s affidavit was not sufficient to authorize the introduction of this copy. That it should have positively stated the existence of the original deed. We do not perceive any force in this objection. Under previous decisions of this court we should have considered the objection well taken, but the legislature in 1861, to modify the rule we had theretofore adopted, changed the law. The affidavit describes a deed, calls it the original, and then observes every requirement of the statute. Nothing required has been omitted, and there was no error in admitting the copy in evidence. In the case of Pardee v. Lindley, 31 Ill. 174, no reference seems to have been made to the act of 1861, either in the briefs or in the opinion of the court. And the admission of the certified copy is placed on the sufficiency of the affidavit, and, being sufficient under the construction given to the act of 1845, it was placed upon that ground, and the act of 1861 was not referred to in deciding the case. But, it does not follow, because that affidavit conformed to the previous decisions, and it was so held, that this affidavit is not sufficient under the present act. The case of Dickinson v. Breeden, 25 Ill. 186, although reported as of the November Term, 1860, was, in fact, determined at the January Term, 1861. It is understood by the court, that the decision in that case led directly to the enactment of the law of 1861, and that it was intended to obviate the construction then placed on the act of 1845. But, be this as it may, the evident design was to amend the twenty-fifth section of the conveyance act, and to give the construction contended for would practically defeat the design of the legislature. This affidavit, embracing all of the requirements of the act, must be held sufficient. It is likewise contended, that the act of 1837 (Sess. Laws, 13) operates to cure the defect in the deed of the patentee to Jones. We do not perceive any language in that act which can be construed to affect a record of a deed made previous to that time. It is not retrospective in its language, nor will it bear such a construction. But, if it did, we are at a loss to perceive how the legislature could transfer one man’s land to another. If Willard, holding the first deed, was the owner of the land at the date of this enactment, the legislature had no power to say, that acts already performed by Jones, which were nugatory, without any other act being done by either party, should become operative to transfer Willard’s title to Jones. But such was not the design of the legislature, but only to give effect to the recording of deeds after the passage of the law. The act only declares, that instruments relating to, or affecting title to, real estate, when recorded, shall be notice, although not properly proved or acknowledged, but it does not say of deeds previously recorded that the first placed upon record should, although not entitled at the time to record, be considered as valid and binding. Appellee having in his declaration claimed the whole title to the land and only established a title to an undivided half, cannot recover unless he amend his declaration by claiming the interest which he owns. The judgment of the court below is therefore reversed, and the cause remanded. Judgment reversed.