Hadlock v. Hadlock. then resided on the premises; made the deed at David's request; Willard was there when it was acknowledged; understood it was to be kept in old man's possession until his death; understood so from the parties when the deed was acknowledged; I handed it to Willard, and he handed it, I believe, to the old man, who, I think, took and put it in his trunk; that was the last I ever saw of it until I saw it here this morning; as I understood it, the old man was dividing his land between his children, and gave Willard this as his portion. Don't remember anything being said about Willard's supporting the old man and his wife; the orchard was reserved to the old man as long as he chose to use it. (There was no consideration paid at the time the deed was made.) There was no agreement at the time the deed was made, that Willard should support the old man. The evidence in parenthesis was objected to, and exception taken. James Edwards, called by plaintiff, stated: Something over two years since, I had a conversation with defendant, at his house; my wife was present; Willard said the deed from David to him was made out and put in the old man's trunk; the old man went up to Samuel Hadlock's and was then taken sick with erysipelas, and that while he was sick, he, Willard, took the deed out of the trunk and got it recorded; told the old man he had given Benjamin Hadlock all his property to support him, and that he should go there for his maintenance, that he would not support him any longer; that the old man was sick at Samuel's, and he supposed he would die. Mrs. Edwards, wife of James, testified to the same facts, and both stated they were on a visit at Willard Hadlock's at the time. Philip Denny, called by plaintiff, stated: About two years since, Willard Hadlock told me that while the old man was sick at Samuel's with erysipelas, he had taken the deed from his trunk and got it recorded. Mrs. Denny, plaintiff's witness, testified the same as her husband. Benjamin Hadlock, called by defendant, testified: Some time after the 12th February, 1852, David Hadlock told me that he had given Willard up the deed for the land, and that he had got it recorded; that David, the old man, never was sick at Samuel's with erysipelas, but that he was sick at Willard's with that disease in March, 1852. Abner Mundell, William Crank, Tilton Howard, Thomas Pritchett, and William Dunn, called by defendant, testified substantially to the same admissions, made at various times by David Hadlock, as those testified to by Benjamin Hadlock—and Hadlock v. Hadlock. all of which were said to have been made after the deed was recorded; and also that the old man, David, never was sick at Samuel Hadlock's, but was sick at Willard's with erysipelas in March, 1852. Francis Sweet and Abial Sweet, called by defendant, testified: That while Willard and the old man were both living on the land in controversy, they went to the old man for some hedge plants; he told them he had given up the farm to Willard, and had nothing to do with them; they then applied to Willard. The defendant read the deposition of James Wagner, taken by plaintiff. In this deposition the witness states that he was at the house of Willard and David about 1852; that he saw David take the deed out of the trunk and give it to Willard, and tell him to take it and do as he pleased with it. At this time Willard and the old man were living on the land together. At the time of taking the deposition, witness thought the old man between seventy-five and eighty years old. David Hadlock, called by plaintiff, testified that he had never told Benjamin Hadlock, nor any other person, that he had delivered the deed, from himself to Willard, to said Willard Hadlock. The following instructions were asked by the plaintiff, and given by the court: "4th. If the jury believe the deed was taken from the possession of David Hadlock wrongfully and against his will, and placed upon record, the jury cannot infer a ratification of the deed from the mere delay of David Hadlock to prosecute for such wrongful act, unless the delay is so long as to bar the plaintiff by the statute of limitations." "5th. To constitute a ratification in such case, it is necessary to show a full, free, and positive acknowledgment by David Hadlock that he had ratified and confirmed the deed, or such acts on his part as are equivalent to an express consent." Exceptions were taken to these instructions. The errors assigned are: 1. Admitting improper and rejecting proper evidence. 2. Entering judgment upon the verdict of the jury, the verdict not finding what estate appellee had in the premises. 3. Entering judgment for damages and costs only, without rendering any judgment for the possession. 4. In giving appellee's 4th and 5th instructions, and refusing instructions asked by appellant. 5. In overruling appellant's motion for a new trial, the verdict being against law and the evidence. Hadlock v. Hadlock. N. H. PURPLE, for Appellant. H. M. WEAD, for Appellee. CATON, C. J. It has been repeatedly decided by this court, that a verdict in ejectment which finds that the plaintiff is the owner of the land, is sufficiently explicit as to the plaintiff's title. It is equivalent to saying that he owns the entire estate in the land-the fee simple. This verdict was good. The two instructions, to the giving of which, exception was taken, we think were correct. Where possession of a deed, which has never been delivered, has been surreptitiously obtained and placed upon record by the grantee, nothing short of an explicit ratification of the deed, or such an acquiescence, after a knowledge of the facts, as would raise a presumption of an express ratification, could give the deed vitality. In this respect it would stand on the same footing with a forged deed. If the party relied upon the statute of limitations, with possession under the deed, nothing less than the period required by the statute for possession would do, and certainly no less possession under the deed with the knowledge of the grantor, would raise the presumption of ratification; and we are far from expressing the opinion that that possession would have that effect. The instructions were right. Upon the merits of the case we do not hesitate to say, that we should have been better satisfied, had the verdict been for the defendant below. But although we may be of opinion that the preponderance of the evidence was against the verdict, yet, the evidence was very conflicting, and there was an abundance to support the verdict, although we think there was much against it. In such a case it is not our province to disturb the verdict. We shall therefore let it stand. The judgment is no doubt incomplete in not awarding to the plaintiff the possession of the land. But the court could, at a subsequent term, have remedied this oversight by completing it, or this court, having the case before it, may do the same. It will save costs to have this now done. The judgment will be affirmed, and a further judgment will be entered here, that the plaintiff below recover the possession of the premises. Judgment affirmed. Thompson et al. v. Turner. AUGUSTUS W. THOMPSON and ROBERT COLEMAN, Plaintiffs in Error, v. JOHN N. TURNER, Defendant in Error. ERROR TO WINNEBAGO COUNTY COURT. A judgment by default may be rendered against a defendant regularly served with process for an amount greater than is stated in the summons, if within the damages claimed by the declaration. An amendment of the summons by making the amount claimed by it, correspond with the præcipe, is proper. Advantage cannot be taken on error, of a variance between the writ and declaration, when the parties were regularly defaulted in the court below. THIS was an action of assumpsit. The præcipe was filed on the 26th May, 1858, praying a summons in damages $600. On the same day a summons was issued, "to the damage of the said plaintiff, as he says, one hundred dollars." The declaration was filed on the 26th May, containing a special count on a promissory note for $400, and also the common counts-ad damnum $600. The summons was served on both defendants, on the 27th of May. The defendants did not appear. Their default was taken on the 8th of June, and damages assessed by the clerk, at $428.20, for which judgment was rendered. At the same term, on the 16th of June, on motion of the plaintiff, leave was granted to amend the summons; but it was not amended. The errors assigned are, that the court erred in rendering judgment against the defendants below, for a greater sum than was claimed in the summons. That the court erred in making the order granting leave to amend the summons, without notice to the defendants below. And that the court erred in rendering judgment in said cause. J. L. LOOP, for Plaintiffs in Error. BREESE, J. It is insisted by the plaintiffs in error that a judgment by default, the defendants not appearing although duly served with process, could not be rendered against them for a greater amount than is claimed in the summons. No authority is cited for this position, and the doctrine seems to be that the plaintiff's declaration is the limit of his recovery. He can recover no more damages than he has laid in his declaration. 1 Ch. Pl. 339. The præcipe in this case directed the clerk to issue a sum Prescott et ux. v. Fisher et al. mons laying the damages at six hundred dollars. Through his negligence, the damages claimed in the summons were but one hundred dollars. The damages in the declaration were laid at six hundred dollars. Here was a variance simply, between the declaration and summons, of which the defendants might have availed, they having been regularly served with the summons. This they did not do, and they cannot on error, take advantage of this variance. It is cured by the eleventh section of the statute of Amendments and Jeofails (Scates' Comp. 252.) There has been a writ and service regularly issued and made, and we hold in such case, by virtue of the omnipotent act cited above, a judgment rendered under such circumstances, where no greater damages are recovered than are declared for, cannot be reversed or set aside. The court below, did right to allow an amendment of the summons, so that it should conform to the præcipe. So would this court allow it upon appeal or writ of error, it being a plain misprision of the clerk. Same statute, secs. 2 and 3, ibid. 250. The judgment is affirmed. Judgment affirmed. 22 390 154 591 CHARLES PRESCOTT et ux., Appellants, v. JOSEPH W. FISHER et al., Appellees. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. The records of a court in which a suit is pending, are admissible as evidence, and prove themselves. A bill filed for a divorce, is to be taken against the party filing it, as true. The recitals in a decree are conclusive against the party who sought it. A deserted wife may acquire property and control it and her person, and may be sued as a feme sole, and if divorced and again marries, her husband will be jointly liable with her for debts contracted. THE declaration of plaintiffs consists of three counts in assumpsit, for goods, wares and merchandise, sold and delivered to the said Mary A. Prescott, before she was married to Charles Prescott, in the year 1856, charging the same was sold and delivered to her while she was a feme sole. Damages claimed, $500. Defendants plead the general issue, and issue was joined. The trial was before a jury, and had in said court, J. M. WILSON, Judge, January, 1859. |