McNitt v. Turner

Mr Justice S WAYNE delivered the opinion of the court.

■ This is a writ of error to the Circuit.Court of the United States for the Southern District of Illinois.

*360 The defendant in error brought two separate actions of ejectment in the court below, one against each of the plaintiffs in error. They were landlord and tenaut, and by consent of the parties the actions were consolidated. The plaintiff recovered the premises in controversy. The defendants thereupon brought this writ of 'error.

' The chain of title relied upon by the respective parties was as follows: Turner gave in evidence a patent from the United States to Louis F. Lef'ay,'dated October 23d, 1818; a deed from Lefay to Samuel Spotts, dated December 19tb, 1818, and recorded in the proper county March 22d, 1820; 'the proceedings'of. the Circuit Court of Adams County, in Illinois, touching a decree of sale made by that court upon the application of Archibald Williams as the administrator of Spotts, and a sale made accordingly; a deed by the administrator to Duncan N. Henneti, the purchaser, dated June 17th, 1839, recorded April 3d, 1841; and a chain of mesne conveyances extending from the heirs-at-law of Hennen down to Turner, the plaintiff' in the court below.

The defendants gave in evidence a deed from Spotts to John Lucas, dated September’12th, 1820, recorded January 2d, 1864, and a sequence of deeds from Lucas down to Mc-Nitt, one of the plaintiffs in error. McNitt was in possession of the premises.

The court instructed the jury that Turner had shown title, and was entitled to recover. To this the defendants excepted.

The defendants then asked the court to instruct the jury:

That the deed from Spotts to Lucas, and the subsequent deeds in that chain of title conveyed the fee of the premises to McNitt.

That the deed from Spotts to Lucas having conveyed the premises to Lucas, Spotts did not die seized off them, that they were therefore not liable to be sold by his administrator for the payment of his debts, and that the decree of sale, was void.

T.hat Spotts having conveyed to Lucas before the proceeding in the Circuit Court of Adams County was instituted by *361 Williams, no title passed by the deed of Williams to Hennen, and hence none by the subsequent mesne conveyances to Turner.

These instructions the court refused to give, and the defendants excepted.

A few remarks will be sufficient to dispose of this exception. All the instructions relate to the deed of Spotts to Lucas.

The decree of sale was-made by the court at the September term, 1838. The sale to Hennen was made on the 17th of June, 1839. The deed of Williams to him was made on the 17th‘ of June, 1839, and recorded April 3d, 1841. The deed of Spotts to Lucas, though made on the 12th of September, 1820, was not recorded until January 2d, 1864. The 22d section of statute of Illinois, in force at both these periods and still in force, provides that “ deeds and other instruments relating to or affecting title to real estate shall be recorded in the county where such real estate is situated.” The next section is as follows: “See. 23. All deeds, mortgages, or .other instruments of writing, which are required to be recorded, shall take effect and be in force after the time of filing the same for record, and not before as to all creditors and subsequent purchasers, without notice, and all such deeds and title-papers shall be adjudged void as to all such creditors and subsequent purchasers without notice until.the same shall be filed for record.”

The term “purchasers” as used in this statute includes purchasers at judicial sales. A deed not filed' for record is as to them wholly without effect. It is in all respects, so far as they are concerned, as if it did not exist. The. maxim applies, De non appareniibus et de non existenlibus eadem est ratio * Seizin wa3 originally the completion of the feudal investiture. In American jurisprudence it means, generally, own *362 ership. The covenant of seizin and the covenant of right to convey are synonymous.

* The deed from Spotts to Lucas cannot affect any question arising in the case, and must be excluded from consideration. All the instructions asked by the plaintiffs in error assumed its efficacy for the purposes to which' they referred. The instructions were therefore properly refused.

It is assumed in the- assignment of errors and in the printed arguments of the learned counsel for the plaintiffs in error, that the admission in evidence of the. record from, the Circuit Court of Adams County, was objected tó, the objection overruled, and éxeeption taken. No such exception appears in the record.

In an action'of ejectmerit the plaintiff must recover, if at all, upon the strength of his -own title. The weakness of his adversary’s cannot avail him.

The ouly exception which remains to be considered is to the charge of the court, that the plaintiff had shown title in fee and was entitled to recover. That exception is thus set out in the-record: e< To which opinion and decision of the court the defendant-then and there excepted, at the time of the said charge.” The chain of the plaintiff’s title, as exhibited on the trial, consisted of many links. The exception should have pointed out. specifically thedink or links deemed defective, and in what the defect was supposed to consist, in order that the court might be duly notified and have an opportunity to correct the error, if any, into which it had fallen: The exception is insufficient. But this objection has not been insisted upon by the counsel for the defendant in error; Ve shall, therefore, consider the -case as if the exception were sufficiently full and specific to meet the requirements of the rule upon the subject.

The objections taken to the title of the defendant in error are all confined to the judicial proceedings touching the sale by the administrator. Thqse objections, so far as it is necessary to consider them, are— *363 That the seizin of Spotts, at the time óf his decease, is' neither averred nor shown; and that the contrary appears.

That the authority to sell was given to Williams, the administrator, specially appointed, when the general administrator for the county should have been appointed, and the authority given to him; and that the description of the premises in the petition of the administrator is insufficient and a nullity.

It is insisted that these defects are jurisdictional, and that the proceeding was coram non judice and void.

The petition sets fc. rth “ that the said Samuel Spotts heretofore, to wit, before the first-day of January, A.D. 1836, died, leaving in this State the real property described in the copy of the inventory marked ‘Exhibit A,’ filed herewith.” The term leaving, used,in this connection, is the synonym of owning.

It is idiomatic rather than dialectic, and is believed to obtain in this sense throughout the country where so applied. This is sufficient. Such a petition need not follow the language of the statute and be drawn with the accuracy of an indictment. Nothing is required but the substance of .what is necessary to be stated,! iutelligiblysexpressed. The deed of Spotts to Lucas is relied upon to disprove the seizin. That deed, we have shown, can have no such effect. The record of deeds in the proper office, as it stood, showed the seizin of the decedent, and that was sufficient. No one was bound to look further, and it was conclusive upon all concerned.

It does not appear that Williams was not the public administrator, and if he were not, that there was any such officer for Adams County at that time. If there was not, the appointment of Williams was proper. Error must be shown. It is not to be inferred, except where the inference is inevitable. Everything consistent with the record which would have warranted’the' appointment, will be presumed to have existed aud to have been found and acted upon by the court.

* Acts done which presuppose the existence of *364 other acts, to make them legally operative, are presumptive proofs of the latter.

* †‡These views render it unnecessary to .consider the construction of the statute contended for by the counsel for the defendant in error, whereby, in effect, and would be substituted for “ orand also the question whéther the statute, not declaring an appointment made contrary to its provisions void, is not merely directory.

† . It was certainly within the jurisdiction of the court to decide both these points. The form of the letters issued to the general administrator, and to other persous when appointed, is the same.

‡ It is insisted that the description contained in the petition is so defective by reason of the omission to name the meridian east or west of which the laud is situated, that its terms are equally applicable to another tract in another county. Admitting this to be so, it is averred in the petition, and shown by the evidence, that the tract in question belonged to Spotts, while no such fact appears as to the other ti’act, and it is not pretended that it exists. This is sufficient. The decree finds all the allegations of the petition to be true. Proof of the ownership by Spotts of the tract sold was admissible to locate the description upon the proper premises, and to remove the ambiguity which was found to exist. In the case of Dougherty v. Purdy, § as in this case, the meridian was omitted in the description, and the ambiguity was the same as here.

The land is correctly described in the schedule attached to the notice’of the intended application to the court'for authority to sell. This might be resorted to, if necessary, to supply the defect in the petition subsequently filed.

|| It will be presumed'that the land described in the petition is the same with that described in the notice, as the descriptions harmonize as far as the former extends. Under certain cir *365 cumstances an averment fatally defective in a declaration may be remedied by a fuller averment in the replication.

* It was proved upon the trial of this case that the premises' are situated in the Military Bounty Tract. We take judicial notice of the fact that this entire tract is situated between the Illinois and Mississippi Rivers, and all of it west of the fourth principal meridian. This also- identifies the land in question.

† The judicial proceedings are not defective in the particular under consideration.

The deed of the administrator to Hennén, made pursuant to the sale, is correct. No exception was taken to it. The fact that the report of the sale by the administrator, found in the clerk’s office after his death, was not filed, approved, and recorded until the 80th of May, 1851, is unimportant. In Wheaton v. Sexton, ‡ there had been a sale under execution and a deed by the marshal. The execution was never returned.- This court said: “ The purchaser- depends upon the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal. Whether the .marshal sells before or after the return, whether he makes a .correct return or any-return at all to the writ, is immaterial to the purchaser, provided the writ was duly issued and the levy made before the return.”

The notice was correct.

§ This has not been seriously questioned. The word “ recorded ” in the-sentence at the foot of the list of lands is evidently a misprint for situated.

It may he so read or regarded as surplusage. In either case the effect will be the same.

But there is a comprehensive and more conclusive answer to all the objections to the sale which have been considered, and to others suggested which have not been adverted to.

Upon the filing of the notice with the proof of publication, and the subsequent filing of the petition of the administrator for authority to sell, the Circuit Court had jurisdiction of the case. No presumption on that subject is necessary.

*366 Jurisdiction is authority to hear and determine. It is an axiomatic proposition that when jurisdiction has attached, whatever errors may subsequently occur in its exercise, the proceeding being eoram. judice, can be impeached'collaterally only for fraud. In all other respects it.is as conclusive as if it were irreversible in a proceeding for error. The order of sale before us is within this rule.

Grignon’s Lessee v. Astor et al.

* was, like this, a case of a sale- by an administrator. In that case this court said: “ The purchaser under it is not bound to look beyond the decree. If there is error in it. of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them, the title of the purchaser is as much-protected as if the adjudication would stand the test of a writ of error; and so where an appeal is given, but not taken, in the time allowed by law.” This case and the case of Voorhees v. The Bank of the United States † are the leading authorities in this court upon the subject. Other and later eases have followed 'and been controlled by them.

Stow v. Kimball ‡ affirms the same doctnne‘ Judgment affirmed.

* Martin v. Dryden, 1 Gilman, 187 ; Curtis v. Root, 28 Illinois, 367 ; Cook v. Hall, Gilman, 575; see also Choteau v. Jones, 11 Illinois, 300; Kennedy v. Northrup, 15 Id. 148; Brookfield v. Goodrich, 32 Id. 363.

* Rawle on Covenants for Title, 34; Browning v. Wright, 2 Bosanquet & Puller, 14; 1 Washburn on Real Property, 35.

* Conrad Schnell et al.

v. The City of Chicago, 38 Illinois, 382.

* Bank of the United States v. Dandridge, 12 Wheaton, 70 .

† Sedgwick on Statutory and Common Law, 868.

‡ Gales's Statutes, 702, see. 62.

§ 18 Illinois, 207.

|| Schnell v. Chicago, 38 Illinois, 383.

* Lafayette Insurance Co.

v. French, 18 Howard, 405 .

† White v. Herman, 51 Illinois, 245.

‡ 4 Wheaton, 503 .

§ Goudy v. Hall, 36 Illinois, 313.

* 2 Howard, 341 .

† 10 Peters, 449 .

‡ 28 Illinois, 93.