Secrist v. Green

GREEN brought ejectment against Secrist, in the Circuit Court for Northern Illinois, to recover land in that State which had belonged originally to Tibbitts. The title which he set up, and the respective items of which he offered in evidence on the trial, was thus:

1. A deed from Tibbitts to William James, of Albany, acknowledged as hereinafter stated.

2. Death of this William James, and a descent to his heirs-at-law, of whom J. B. James was alleged to be one; all asserted to be proved by a deposition of Mr. Gideon Hawley.

3. Partition of a large body of lands in Pike, Morgan, Adams, and other counties in Illinois, of which the piece sued for was part, and allotment of it to this J. B. James, under proceedings in the Circuit Court of Pike County, Illinois; a record from which court was offered.

4. Death of J. B. James, and his last will, making one Dexter executor, giving power to sell real estate, with probate and letters testamentary, which will, & c., was presented in the form of a certified transcript of a record of Adams County, Illinois, recording, in that county, a copy (duly certified under the act of Congress, 'to prescribe the mode in which the public acts, records, and judicial proceedings in each State shall be authenticated so as to take effect in every other State') of the will, proved and registered in Albany, with the probate and letters testamentary there granted thereon to Dexter, as beforesaid.

5. Deed from Dexter, executor, as above mentioned, to Green, or persons through whom he claimed, for the premises demanded.

1. As respected the first item in the title-the deed from Tibbitts to James. The deed, dated 3d March, 1818, was thus acknowledged on the day of its date:

STATE OF NEW YORK, ss:

Be it remembered that, on the day of the date of the within deed, personally came before me the within named George Tibbitts, and acknowledged before me that he had executed the within deed freely, for the uses and purposes therein mentioned, and consented that the same might be recorded where necessary; and further that Zachariah Galusha, to me personally known, a subscribing witness to the execution of this deed, having been duly sworn, made oath before me that he knew the said George Tibbitts to be the same person ddscribed in and who executed the said deed, and that he was a subscribing witness to the execution thereof; all which being satisfactory to me, the said deed may therefore be recorded.

GIDEON HAWLEY, Master in Chancery.

The defendant made objection to the deed, because:

(i) That there was no proof that the person taking the acknowledgment was really a master in chancery; and,

(ii) That a master in chancery of the State of New York had no power to take acknowledgments to deeds for lands in Illinois, and to be recorded there; a matter of course which depended on the statute laws of Illinois, and perhaps on those of New York also. The court below deemed the acknowledgment sufficient, and the deed was read.

2. As respected the second item in the title-the death of William James and the heirship of J. B. James. Both facts rested on the deposition of Mr. Gideon Hawley, aged seventy-two, a retired counsellor-at-law. Mr. Hawley testified to his long and intimate acquaintance with James, the ancestor, and to his death; to the fact of his leaving children, whose number and names he stated. He mentioned who of them were living, and 'that the children who died prior to his decease (as appears from entries in his family Bible, and which this deponent believes to be true'), were J. B. James, &c.; that J. B. James, son of the said William, died in Chicago, on or about 22d May, 1856, testate as I am informed and believe. The deposition was objected to, because 'as to the contents of the family Bible, the said Bible itself is the best evidence, and because so much of the deposition as is on information and belief is incompetent.' The objection was overruled, and the deposition read.

3. In regard to the next link-which depended on the proceedings and allotment in partition under proceedings had in the Circuit Court of Pike County. It was not denied that the court named had jurisdiction of matters of partition; but objection was made that it nowhere appeared that the parties, James, were properly or legally brought into court,. . . and because the bill for partition was not filed or suit brought in the county in which the greatest amount of lands lie (as required by the statute), and because publication was made in Morgan County adjoining, and not in Pike County, where the proceedings in partition were had.

By the laws of Illinois all the parties in interest were required to have notice of the application for such partition, by summons duly served, or by advertisement, to be published for four weeks in the nearest newspaper to the premises.

In the case of this partition, the record on the subject of notice ran thus:

'The cause now coming on to be heard, and it appearing satisfactorily to the court that due legal notice had been given to all the defendants in this suit of the pendency of the same, by publication in the 'Illinoian,' a public newspaper printed in Jacksonville, in the County of Morgan, and State of Illinois, four weeks successively, commencing on the first day of July, A.D. 1843, and ending on the fifth day of August, A.D. 1843; and the guardian ad litem of the infant defendants having filed his answer, setting up no opposition to the granting of the prayer of said bill, and all the other defendants, although three times solemnly called, coming not, but making default, and summons having issued, in pursuance to law, for all the defendants in this suit, and there being no opposition to the prayer of the bill, it is ordered that the said bill be taken for confessed.'

The court below allowed the record to be read.

As to the fourth and final matter-the death of J. B. James, the probate of his will, and the record produced from Adams County, Illinois. It appeared that J. B. James died leaving a will executed at Albany, New York, where he lived; that this will was admitted to probate in the Surrogate's Court of Albany County, and letters testamentary granted by the surrogate, Dexter, who was named in it executor and trustee; that the will with its probate and letters, properly authenticated by the surrogate according to the act of Congress already mentioned-which enacts that records and judicial proceedings authenticated as it directs shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence they are taken-was recorded in Adams County, Illinois. This record from Adams County, Illinois, it was which was offered-offered, of course, as a foundation for the introduction of the fourth link in the chain of Green, the plaintiff's, title-the deed, namely, from Dexter, executor of J. B. James.

To understand the ground on which the record from Adams County, obviously not admissible on common-law principles, was offered, it is necessary to say that by statute in Illinois, passed in 1853, entitled 'An act in relation to conveyances of real estate by non-resident creditors,' it was made lawful for a non-resident executor, who had proved the will of his testator and accepted the trust, in any one of the States of the Union, to execute the will in Illinois in the same manner as though he had qualified in that State. Before he could sell any real estate he was required to produce the will, or a copy of it, with the probate of it and authority to execute it, properly authenticated, and have it recorded in the County Court of that county in Illinois, where the property of the testator, or a part of it, was situated; and he was obliged to give bond for the faithful appropriation of the effects of the testator in Illinois. It was then the duty of the judge of the County Court to certify that such will was duly authenticated under the provisions of the act of the legislature.

The record from Adams County was duly authenticated. It showed that the bond which the Illinois statute of 1853 requires for 'faithful appropriation' had been given by Dexter; and that the judge of the County Court had made all the authentication required by the act to authorize the recording in Adams County.

The reading of this record from Adams County was objected to, because it was a record not of the original of any will, but a record of that which was but an alleged transcript of one; a copy of a copy therefore, or at best a record of a record. . . . The court below overruled the objection, and the record was read.

Two trials were had below, both resulting for the plaintiff. On exceptions to the evidence already mentioned as received, the questions here were:

1. Whether the acknowledgment of the deed to William James, before the New York master in chancery was sufficient to allow it to be read in Illinois?

2. Whether the heirship of J. B. James had been sufficiently proved?

3. Whether the court below erred in suffering the record of the proceedings in partition in Pike County to go to the jury?

4. Whether it erred in allowing to be read the record from Adams County, of the copy of J. B. James's will, proved originally in Albany, New York, and with the record of probate and the letters testamentary, certified under the act of Congress as already mentioned?

Mr. Grimes, for the plaintiff in error; Mr. Browning, contra.

Mr. Justice DAVIS delivered the opinion of the court.