Graves v. Bruen , 6 Ill. 167 ( 1844 )

The Opinion of the Court was delivered by

Shields, J.

This is an action of Ejectment brought by Bruen et al. v. Graves et al., for the recovery of the North East quarter of section thirteen (13), township one (1) south, range seven (7) west of the fourth principal meridian. Notice of the declaration was served on the 18th day of March, 1843. On the trial, the possession of the defendants was admitted. The plaintiffs then offered in evidence an Auditor’s tax deed for said land, dated March 2d, 1840, reciting that the land was sold to said Bruen, January 10th, 1833, for the taxes of 1832. Said deed had never been acknowledged or recorded. The defendants objected to the admission of the said deed in evidence. The objection was- overruled, and the deed was admitted in evidence to the jury. The plaintiffs then closed their case.

The defendants then offered in evidence the deposition of Thomas H. Campbell, clerk in the Auditor’s office, with a diagram attached to, and making part of said deposition, showing the manner in which said land was listed for taxes. Said diagram did not show the number of acres in said tract of land, or the quantity or class to which it belonged. The deposition stated that the land was listed in the books of the Auditor for taxes from the year 1828 to the year 1886, inclusive, in the manner set forth in the diagram; and that it was listed in the same manner for other years. The book did not show by whom it was listed, nor was there any evidence in the office showing who listed it. He believed it was listed in the second class. The plaintiffs objected to the admissibility of said deposition, and the Court sustained the objection.

The defendants then called Edward H. Buckley as a witness, and proved by him that the said diagram was correctly copied from a book shown to him by the Auditor in his office, as the tax book of the Illinois Military Bounty Land. That the caption was copied from the first page of the boob, which was a large one. The heading of the columns was copied from the page of said book, in which the land in dispute was entered, and which was many pages from the first page, and the entries opposite the tract of land were copied from the same page. There was no heading in the fifth column, on the last mentioned page. He could not say whether there was any heading at the commencement of the book. He gave some additional testimony, which is wholly immaterial. The deposition and diagram were offered in evidence and objected to, and the Court sustained the objection.

The defendants then offered to prove that the said Graves purchased the said land from the patentee thereof in 1887, without notice of the plaintiffs’ title, and that the same was at that time duly conveyed to him by deed of that date, which was objected to, and the objection sustained. To all which decisions of the Court, the defendants at the time objected, and excepted, and this Court is now called upon to say whether the decision of the Court below is correct.

We can only see two questions, which can arise upon this voluminous record. The first questions the admissibility of an Auditor’s deed without proof of execution, or without showing that it was regularly acknowledged and recorded as in the case of deeds between private individuals. It is hardly necessary to say that the registry Acts do not apply to Patents emanating from either the State, or the United States. In case of loss of the original Patent, a copy from the record would not be admissible as secondary evidence to supply its place, and would be of no effect for that purpose. It is necessary, in such cases, to obtain a duplicate Patent from the authority which issued the first Patent. The registry laws have no application whatever in such a case.

The next question arises on the admissibility of the evidence offered to defeat the Patent, on the ground that the land included therein was not duly listed according to law. The testimony and diagram annexed show nothing, in our opinion, which would justify this Court in determining that such land was not correctly listed. Although .the diagram shows that some of the columns are blank, yet, non constat, but the proper heading would be found in all cases by tracing the columns back to the first entry. The entries of dates, numbers, quantity, &c, are not necessarily repeated. The blank in the column refers back to the first entry, and the loose and indefinite proof offered, being calculated to mislead the jury, was properly "rejected by the Court.

We can find nothing in the record to justify a reversal of the decision of the Court below. It is, therefore, affirmed with costs.

Judgment affirmed.