Nixon v. Cobleigh ( 1869 )

Mr. Justioe Walker

delivered the opinion of the Court:

This was an action of ejectment, brought by appellee in the Tazewell circuit court,- against appellant, to recover certain lots in the city of Pekin. Appellee derived title from the general government through a number of mesne conveyances.

On the trial in the court below, appellee read in evidence copies of several deeds in his chain of title, duly certified by the recorder.

It is first urged that the court erred in admitting these copies, for the reason that sufficient proof of' the loss of the originals was not made. By section thirty-eight, of chapter entitled “Conveyances ” (Gross’ Comp.) it is enacted, that if any party, his agent or attorney, shall, in open court, swear that the original deed, conveyance or other writing required to be recorded, and has been properly acknowledged and recorded, is lost, or not in the power of the party wishing to use the same on the trial, the record of such deed, or a transcript thereof, certified by the recorder, may be read in evidence. Appellee swore that he did not have the deed in his possession ; that he did not know where it was, and had not made search for it. He made the same oath in reference to each copy before it was read in evidence. While this oath is not in the language of the statute, in failing to state the deeds were not in his power, it is substantially the same.

He swears that the deeds are not in his possession, and that he does not know where they are, and if that is true, we fail to perceive how they were in his power, and the statute presents either alternative—loss, or want of power over the instrument.

■ This statute was designed to modify the strictness of the common law rule, as to the admission of certified copies of such instruments. Before the passage of this statute, the party would have been required to make strict proof of diligent search, in all places where the instrument was likely to be found, before the copy could have been admitted. And the statute having been adopted to dispense with such strictness, it would be manifestly erroneous to give it. so rigid a construction as to defeat the design of the legislature.

It is urged, that the court below erred, in permitting appellee to prove the contents of the deed, from Turrill and Haven to Charles Haven. On producing the certified copy of the deed it appears to have been signed by James H. Turrill, instead of Samuel H. Turrill. The clerk entitled the deed “ Samuel H. Turrill and Aaron Haven to Charles Haven,” and in the copy certified by the recorder, they are described as the parties of the first part, but it purports to be signed by James H. Turrill. These facts are sufficient to create a belief that it was signed by Samuel H, but not of themselves strong enough to overcome the legal presumption, that it was signed as it purports to have been. But Aaron Haven, who was a partner or joint owner of the' property, and jointly executed the deed, swears that it was in fact signed by Charles H. Turrill and not by James. This renders it morally certain that the recorder made a mistake in transcribing the original upon his records.

There can be no question of the right of a party to prove the contents of a lost deed. Nor is there any doubt that, had the original been produced, executed as this purports to have been, and acknowledged by Samuel as this from the copy purports to have been, it could be proved he executed the deed by the name of James instead of Samuel, his true name. We therefore can see no reason why it could not be proved by a person who knew how the deed was, in fact, signed, that it was by the name of Samuel H. Turrill.

It is again urged that the deed executed by Hooper to Turrill and Haven, should not have been introduced in evidence, for the want of proof that the notice of the sale had been given as required by the trust deed. The deed itself recites that the notice required had been given, and that the sale was made at the time and place named in the notice, which was at the door- of the court house in the city of Pekin. The deed recites that due notice was given, and although the date of the notice is not given in the deed, nor is the name of the newspaper, although blanks were left for their insertion, the recital that the trustee duly advertised the premises, as to strangers, and third persons, must be held sufficient.

It is also urged that, as the trust deed declared that the property should be sold on the premises, and they were sold at the court house door, that the sale was void. When £gan executed and delivered the trust deed to Hooper, he thereby transferred the title in fee to him upon the trusts specified in the deed; and had Hooper conveyed without any notice, and on a private sale, the title would have passed' to the grantee, although subject to be defeated by either Egan or Turrill and Haven. Such a conveyance would not have been void, but only voidable, by the grantor in the trust deed, or the persons to secure whose debt it was executed. Not being void, but only voidable,, mere strangers can not be heard to impeach the transaction. The manner in which the sale was required to be conducted, was inserted for the protection of Egan on the one part, and Turrill and Haven on the other. Had they filed a bill within a reasonable time to avoid this conveyance, then a very different question would have been presented.

We are aware, however, of no rule of law that permits mere strangers to the deed, and for whose benefit the mode of conducting the sale was not inserted, to raise the objection ; and so far as this record discloses, appellants are strangers to the entire transaction, and hence they are not in a position to raise the question whether a proper notice was given or the sale made at the proper place. The previous decisions of this court in which the objections here urged were held valid, were where the debtor or creditor for whose security the directions as to the manner of conducting the sale were inserted, were the parties seeking to avoid the sale. Hence there is a distinction between them and the case at bar.

The judgment of the court below is affirmed.

Judgment affirmed.