Statement of Facts.

STEBBINS v. DUNCAN and Others.

108 32 L-ed 641

117 262

108 32

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

1. Suggestion of the death of a plaintiff in the record, and an order to make his devisees parties, is prima facie evidence of his death for the purposes of the trial.

2. The existence of a deed, and its destruction by fire being proven, it is competent for the party offering it to prove its contents by a witness who knows them.

3. It being shown that a paper produced is a copy of a lost deed (but without the official certificate), the copy is competent evidence.

4. The witnesses to a deed being dead, the execution of the deed is to be proven by proof of the handwriting of the subscribing witnesses.

5. When a deposition has been destroyed by fire, and a copy, admitted to be such, is offered in evidence, it is not sufficient to object that it has not been shown that the witness is dead, or is incompetent to testify, or that the deposition cannot be retaken. It should be also objected that the witness does not live in another State, or more than one hundred miles distant from the place of trial, in order to lay ground for excluding the copy.

6. In error the court can consider only the objections specifically taken at the trial.

7. The execution of the deed being proven according to law, slight proof of the identity of the grantor is sufficient. In tracing titles, identity of names is prima facie proof of identity of persons.

8. It is a general rule in the State of Illinois that when a person has executed two deeds for the same land, the first deed recorded will hold the title.

9. The deed under which the plaintiff claimed was not acknowledged and certified as required by the laws of Illinois to admit it to record. It was, however, recorded. A duly certified copy of this record, and a certified copy of the original memorandum of record were offered, and a witness testified that the deed was a copy of the original deed: Held, that under the decisions of the courts in Illinois, this was proof that such deed and memorandum were of record, so as to give notice to subsequent purchasers.

This was an action for the possession of real estate in Illinois, involving title. The plaintiffs claimed under a sale on execution in a judgment recovered by the United States against one Duncan. Duncan's title was derived from a deed from one Dunbar to one Prout, dated January 6th, 1818, and

Argument for Plaintiff in Error.

recorded October 29th, 1838. The defendants claimed under a deed from Dunbar to one Frank, also dated January 6th, 1818, and entered for record June 18th, 1870.

The suit was begun in the name of one Morris, who died pending it. His death was suggested on the record, and at the trial proof of the probate of his will was offered as proof of his death. The first question was on the ruling of the sufficiency of the proof of this fact.

The original deed from Dunbar to Prout was witnessed by one Smallwood, who resided in Washington. Smallwood being dead, the execution of the deed was proved by depositions of persons residing in Washington to the genuineness of Smallwood's signature. The next question was as to the sufficiency of that proof without more complete proof than was offered of the identity of Dunbar.

The deposition and the original deed attached to it were destroyed in the great fire of Chicago. The next questions were as to the admissibility of a copy of the deposition, and as to its sufficiency to prove the signature of the witness.

The original deed was defectively acknowledged. It was, however, admitted to record. A certified copy of the record, and a certified copy of the original memorandum of the entry for record were produced, and a witness testified that the copy produced from the record was a copy of the original deed. The next question was as to the sufficiency of this proof to allow the deed to be read in evidence.

The last question discussed was as to the effect of the record of the deed to Prout upon the title derived through Frank.

The further details necessary for understanding the points decided are set forth in the opinion of the court. These are deemed to be sufficient for comprehending the points in the argument.

Mr. John W. Ross and Mr. Geo. O. Ide for plaintiff. I. The probate record was not competent evidence of Morris' death. Life Insurance Company v. Tisdale, 91 U. S. 238; Carroll v. Carroll, 60 N. Y. 121. The suggestion of the death did not relieve the plaintiffs below from the necessity of proving it. Milliken v.

VOL. CVIII-3

Argument for the Plaintiff in Error.

Marlin, 66 Ill. 13. II. The certified copy of the deed from Dunbar to Prout was improperly admitted in evidence. No proper foundation was laid for it. The deed was not properly acknowledged, and was not entitled to record. Carpenter v. Dexter, 8 Wall. 513; Semple v. Miles, 2 Scammon, 315; Choteau v. Jones, 11 Illinois, 300, 320; Buckmaster v. Job, 15 Ill. 328. And the clerk's certificate to the copy, not being authorized by law, was no evidence. III. The copies of the depositions were improperly admitted. No proof was offered showing that the witnesses were dead, nor any reason or excuse given why the witnesses could not be produced, or why their depositions had not been retaken. In the absence of such preliminary proof, it was incompetent to prove what the depositions contained. Cook v. Stout, 47 Illinois, 530, 532; Aulger v. Smith, 34 Illinois, 530; Stout v. Cook, 57 Illinois, 386; Hutchins v. Corgan, 59 Illinois, 70. IV. The testimony as to the taxes was improperly admitted. Tax receipts are subject to contradiction and explanation. Elston v. Kennicott, 52 Ill. 272. V. The evidence as to the deed from Dunbar to Prout did not entitle it to be admitted in evidence. Proof of the handwriting of the subscribing witness should have been accompanied by proof of the identity of the grantor. Phillips on Evidence, 490 to 505; 1 Greenleaf on Evidence, § 575; 1 Wharton on Evidence, § 701; Wiley v. Bean, 1 Gilman, 302; Mariner v. Saunders, 5 Gilman, 113. VI. The deed was 'not admissible as an ancient deed. Jackson v. Blanshan, 3 Johns. 292; Smith v. Rankin, 20 Ill. 14. No accompanying possession was shown. Clarke v. Courtney, 5 Peters, 319, 344; Fell v. Young, 63 Ill. 106. The certificate of the recorder to the copy of the record did not prove the deed and indorsement, or the fact that they were ancient. Smith v. Rankin (sup.); Younge v. Guilbeau, 3 Wall. 636; see also Whitman v. Heneberry, 73 Ill. 109. VII. The deed having been improperly acknowledged, the certified copy was incompetent to prove a recording. Smith v. Rankin, 20 Ill. 14. Frank's deed and Prout's deed bear the same date, and are to be presumed in law, in the absence of rebutting evidence, to have been made and delivered on the same

Opinion of the Court.

day. Deininger v. McConnell, 41 Ill. 227, 232; Harden v. Osborne, 60 Ill. 93; Jayne v. Gregg, 42 Ill. 413. The defendant below being in possession, and the Prout deed not having been properly recorded, the burden was on the plaintiffs below to show the priority of the Prout deed. The Frank deed has priority of record. VIII. The Prout deed lacked the indispensable certificate of magistracy. Hence its record was defective, and no constructive notice.

Mr. Thomas Dent for the defendants.

MR. JUSTICE WOODS delivered the opinion of the court. This was an action of ejectment, originally brought by William B. Morris, in the Circuit Court of the United States for the Northern District of Illinois, against Howard Stebbins, the plaintiff in error, for the recovery of a quarter section of land, originally situated in Madison County, Illinois, but when the suit was begun, situate in Stark County. Before the final trial of the cause, to wit, on January 22d, 1879, the death of the plaintiff was suggested, and the devisees named in the last will were made parties, as appears by the following entry upon the record of the court:

"Now come the parties by their attorneys, and Thomas Dent, Esq., the attorney of the plaintiff, suggests to the court the death of William B. Morris, and that Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge are the devisees of said deceased; and on the motion of the plaintiff's attorney, it is ordered by the court that said devisees, Maria L. Duncan, Harriet B. Cooledge, and Helen Cooledge, be made plaintiffs herein."

The defendant pleaded the general issue. The cause was tried by a jury, who returned a verdict for the plaintiffs, upon which judgment was rendered in their favor for the lands in controversy. To reverse that judgment, the defendant in the circuit court has brought the case here upon writ of error. A bill of exceptions was taken upon the trial, from which the following statement of the case is made:

Disregarding the order in which the testimony was intro

Opinion of the Court.

duced, and arranging it chronologically, the plaintiffs below, to prove title in themselves, offered the following evidence:

1. An exemplification of a patent from the United States to one John J. Dunbar for the lands in controversy.

2. A certified copy of a deed for the same lands from John J. Dunbar to William Prout, dated January 6th, 1818, said copy being certified to have been made February 3d, 1875.

3. A certified copy of a deed for the same lands from William Prout to Joseph Duncan, dated May 2d, 1834, and recorded in said county, October 29th, 1838.

4. Certified copy of a decree in chancery in the United States Circuit Court for the District of Illinois, dated June 9th, 1846, rendered in a cause wherein the United States were complainants, and the widow and heirs of Joseph Duncan defendants, and of the proceedings under said decree by which the premises in controversy in this suit were sold to the United States.

5. Certified copy of the deed to the United States under said decree for the same premises, made by William Thomas, commissioner, dated August 12th, 1846, and recorded January 17th, 1848.

6. Certified copy of a deed for the same premises, dated December 28th, 1847, and recorded June 5th, 1848, to William W. Corcoran, executed by R. H. Gillett, solicitor of the treasury, in behalf of the United States.

7. Certified copy of a deed for the same premises, dated December 20th, 1867, and recorded March 12th, 1868, from William W. Corcoran to William B. Morris.

8. Certified copy of the will of William B. Morris, and of the probate thereof, from which it appeared that Maria L. Duncan, Harriet B. Cooledge, and Helen L. Cooledge, the plaintiffs, were his residuary legatees.

To sustain the title, which the plaintiffs contended that they derived through these documents, they offered other evidence, which will be noticed hereafter, but they offered no evidence of the death of William B. Morris, the original plaintiff, since the certified copy of his will and of the probate thereof and the letters testamentary issued thereon.