Sharp v. Thompson

Mr. Justice Sheldon delivered the opinion of the Court: This is a writ of error brought to reverse a decree of foreclosure of a mortgage. The mortgage purports to convey a homestead, and to have been acknowledged before the deputy clerk of the circuit court of Clinton county. It is objected that the acknowledgment is invalid, because the deputy clerk was not legally appointed such. It appears that he was only verbally appointed such deputy; that he was never sworn into office, nor executed any bond as deputy, but that he was acting as such deputy, and had taken other acknowledgments in the same manner. The provision of the statute at the time (1867) was, “the clerk of the Supreme Court, the several clerks of ‘the circuit and county commissioners’ courts, may appoint deputies, who shall severally take an oath for the faithful discharge of the duties of their offices, and for whose conduct the principal clerk shall in all cases be responsible.” Rev. Stat. 1845, p. 395, sec. 6. The deputy clerk here was at least an officer de facto, and the principle is well settled that the acts of officers de facto are as valid and effectual, when they concern the public or the rights of third persons, as though they were officers de jure. Sullivan v. The State, 66 Ill. 75; Mapes v. The People, 69 id. 528. The mortgage purported to convey, among other property, also lots 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30, being all of block 25, in Lower Carlyle. These numbered lots are not in block 25, and it is contended by plaintiff in error that it is these numbered lots which are conveyed by the mortgage, and not block 25. The evidence shows that the blocks in Lower Carlyle are consecutively numbered from one to thirty, and contain ten lots each, the lots in all the blocks being consecutively numbered from one to three hundred. Lots 21 to 30 inclusive are in block 3. The lots in block 25 are numbered consecutively from 221 to 230. It appears that the arrangement before the mortgage was made was that the mortgagor should give a mortgage on a house and certain lots in the town of Carlyle, being his residence in which he lived at the time, and that he was living at the time on block 25, in "Lower Carlyle, and had lived there for more than ten years previous. There is evidently a false particular of description here, in either the lots or block, and which description shall' prevail,—that of the lots or of the block? It is from extrinsic evidence that the ambiguity spears, and that same kind of evidence shows clearly enough that the description of the block was the description which was intended, and such evidence is admissible to explain a latent ambiguity. It is a rule of construction that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. Whence, if there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him. Melvin v. Props. Locks, etc. 5 Metc. 27; 3 Washburne on Real Prop. 628-9, Marg.; Esty v. Baker, 50 Me. 831. It is a maxim that falsa, clemonstratio non nocet. The description here by the block alone is full and sufficient to ascertain the estate, and it no doubt describing what was intended to be conveyed, that description, we are of opinion, should prevail, and the description by the lots be rejected as a false particular of description. This will not, as supposed by counsel for. defendant in error, amount to the reformation of the deed of a married woman, which this court has decided could not he made under our former law, hut it is only determining which one of two inconsistent descriptions shall prevail. It is complained that the court below decreed the taxes which the complainant had paid upon the land to be a lien upon it. It was the duty of the mortgagors to pay the taxes, and they not having .done so, the mortgagee might pay them and be subrogated to the rights of the State,- which had a lien upon the land for the taxes. Pratt v. Pratt, 96 Ill. 184. Finding no error in the decree it is affirmed. Decree affirmed.