Morrill v. Cone

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.

It was an ejectment brought by Morrill, a citizen of New Hampshire, to recover from John Cone and Carlos J. Cone the southwest quarter of section thirty-six, township eleven north, range one west, in the county of Warren, and State of Illinois.

Upon the trial, the plaintiff exhibited his title as follows, viz:

1. A patent for the land in question from the United States to Benjamin Abbott, dated April 9th, 1818.

2. A deed for said land from said Abbott to the plaintiff, dated January 9th, 1855.

3. The plaintiff also put in evidence, by way of precaution, a deed to himself from one Nathaniel Abbott, dated October 26th, 1838.

The defendants, in order to show that the title had passed out of the Abbotts to grantees, under whom they made defence, at a time prior to the inception of the plaintiff's title, read to the jury—1. A deed for said land from Benjamin Abbott to Nathaniel Abbott, dated May 9th, 1818.

2. A power of attorney from Nathaniel Abbott, John D. Abbott, and Joseph Low, to Abraham Beck, dated July 14th, 1820, authorizing him to sell and convey 'all those certain lots, pieces, or parcels of land named and described in the annexed list or schedule, situate, lying, and being in the tract appropriated by acts of Congress for military bounties, in the State of Illinoir, and which were severally granted to the persons whose names are annexed to each lot or parcel of land,' with this proviso written immediately after the attesting clause, 'provided, however, that the condition is understood to be such, that our said attorney is to take sufficient security on real estate for all the above lands which may be sold on a credit.'

The annexed schedule contained sixty-four quarter sections, and among them the land in suit. Acknowledged February 12th, 1821, and recorded July 30th, 1821.

As the decision of the case turned upon the execution of this power, and the admissibility of the evidence offered to prove its defective execution, it is proper to state the circumstances under which it was given; and, in doing so, to use the testimony of the witness who was produced, because the second branch of the opinion of this court is, that even if the evidence was admissible, it would not have destroyed the title of the defendants.

In 1820, Beck was acting as agent for the Abbotts and Joseph Low, (under whom the plaintiff, Morrill, claimed,) and who resided in New Hampshire.

On the 31st of May, 1820, Beck wrote that he had found a purchaser for eighty lots, (including the land in question,) at fifty-seven dollars per lot, making four thousand five hundred and sixty dollars, payable in nine, eighteen, and twenty-four months.

On the 12th of July, 1820, Low, who appeared to manage the business, wrote to Beck that he would accept the offer and send a power of attorney by the next mail.

On the 14th of July, 1820, the power was executed and transmitted to Beck. The concluding part of the instrument was as follows, viz:

'Have made, constitued, and appointed, and by these presents do make, constitute, and appoint, Abraham Beck, of the town of St. Louis, and State of Missouri, our true and lawful attorney, for us and in our names to sell and convey the whole of the said described lands, and make, execute, and deliver good and sufficient warranty deeds for each and every of the aforesaid lands, and to grant and convey the same absolutely in fee simple for such price or sum of money, and to such person or persons as he may think fit and convenient, with such clauses, over-acts, and agreements, as our said attorney shall think fit and expedient, hereby ratifying and confirming all such deeds and conveyances, bargains and sales, which shall at any time be made by our said attorney, touching or concerning the premises.

'In witness whereof, we have hereunto set our hands and seals, this fourteenth day of July, 1820; provided, however, that the condition is understood to be such that our said attorney is to take sufficient security on real estate for all the above lands which may be sold on a credit.

'JOSEPH LOW, [SEAL.]

'NATH'L ABBOTT, [SEAL.]

'JOHN D. ABBOTT, [SEAL.]'

On the 12th of September, 1820, Beck executed a deed to O'Hara, in the names of his employers, 'for and in consideration of the sum of three thousand five hundred and thirty-four dollars to them in hand paid, the receipt whereof is hereby acknowledged.'

On the same day, viz: September 12, 1820, O'Hara gave six promissory notes to Beck, payable at different times, and executed the following instrument:

'Whereas I have this day purchased of Abraham Beck, as attorney of Joseph Low and others, ninety-two quarter sections of Illinois military bounty lands, for which I have agreed to pay him at the rate of fifty-seven dollars each, amounting to five thousand two hundred and forty-four dollars, which is payable, one-third at nine months, one-third at eighteen morths, and one-third at twenty-four months, for which I have given my notes payable as above; and whereas I have given my notes payable as above; and whereas some defects exist in the power of attorney by which he has conveyed fifty-seven quarter sections, part of the above, I do covenant and agree with the said Abraham Beck, that, whenever he gets a power of attorney to convey said lots, and confirm his proceedings, and deliver the same to me, that I will execute and deliver to the said Abraham Beck, as attorney for the said persons mentioned, a mortgage upon good and sufficient real estate, sufficient to secure the payment of the above notes.

'ST. LOUIS, September 12, 1820.

'Recorded December 6, 1821.

'WILLIAM H. O'HARA.'

In September, 1820, O'Hara mortgaged the land to Cabann e, which was acknowledged on the 30th of October, and recorded on the 21st of February, 1821.

On the 23d of November, 1820, Beck wrote to Mr. Low as follows:

'I understood the intention of Mr. O'Hara, who is the purchaser, to be to give a mortgage on the lands. But it appears I misunderstood him. He offered to take the lands at the price and on the terms mentioned, and to give notes at nine, twelve, and twenty-four months, secured by mortgage. I understood, and so I wrote to you, that the mortgage could be on the lands; but he meant to give a mortgage on sufficient other property. This is a difference of no consequence, and I would have concluded the arrangement; but your power of attorney was a limited one, and under which a conveyance could not be good.

'I therefore made the best arrangement I could, which was to make a conveyance of the property, and give a personal guaranty that a proper power of attorney would be forwarded; upon which Mr. O'Hara gave his notes as agreed, and arranged the balance, and gave me a covenant to execute a mortgage upon sufficient real estate whenever a power of attorney, duly executed, should arrive. I therefore consider the shing completed.

'As to Mr. O'Hara's standing and responsibility, I refer you to Mr. Enoch Long, or to Major Long, both of whom well know him. I have drawn a power of attorney, and have shown [it] to Mr. O'Hara, who approves it. I enclose it to you to be executed.'

The power thus enclosed, omitted the proviso relative to the security on real estate, retaining the date of July 12, 1820.

On the 12th of February, 1821, this power was again executed and transmitted to Mr. Beck; but before its execution Low added the proviso, making it read as before.

On the 30th of July, 1821, the power was recorded.

In October, 1822, the mortgage which O'Hara had given to Cabann e was foreclosed, and the land sold. The defendants claimed under a deed from the commissioner appointed to make the sale and several mesne conveyances, the last of which was to the defendant, John Cone, in 1850.

The bill of exceptions recited the evidence to establish all these facts, together with the deposition of Low, and concluded as follows:

'This being all the evidence in the case, and the court being of opinion that the title of the defendant, John Cone, to the premises in controversy, deduced as aforesaid, was a good and valid title, superior and paramount to the title of the plaintiff, so instructed the jury, who found their verdict accordingly.'

Upon which exception, the plaintiff brought the case up to this court.

It was submitted on printed argument by Mr. Williams for the plaintiff in error, and Mr. Browning for the defendant.

The arguments of the counsel upon both sides were so much involved with the questions of fact, that it would be difficult to report any discussions of abstract principles of law. They are therefore omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.