Bestor v. Powell (7 Ill. 119, 1845)

The Opinion of the Court .was delivered by

Scates, J.

Ejectment against the plaintiff in error, to recover a lot in the town of Peoria. The defendants deduce two chains of title, one by Patent from the United States to the county of Peoria, and by conveyance from them to James C. Armstrong, and by purchase under an execution issued on a judgment against him in favor of Isaac Under-hill.

The other chain of title is by purchase under an execution issued on a judgment for the taxes of 1840, against the lot, and in favor of the State.

The plaintiff objected to all the evidence below, but confines his objections here to the conveyance by the County Commissioners to Armstrong, and to the proceedings on the sale for taxes.

The plaintiff offered to prove that Susan Buxton had claimed the premises as owner .ever since 1838, and had occupied them by herself or tenants; that the defendant entered and took possession in 1841 under a lease from her and had occupied ever since, and that he had not had notice or demand tó quit or give up the premises. This was objected to and excluded, and very properly we think. If the defendants showed no title, it was unnecessary to prove this possessory one. If they showed title, this one was of no moment. So, in no event, does it appear that this proof was relevant, or important, upon the face of this record.

The first objection I shall notice, was taken to the admission in evidence of the record of deeds of the county, to show the conveyance from the county of Peoria to Armstrong. For a foundation for the introduction of this secondary evidence the defendants were both sworn, and stated that they had not, and never had the possession of said deed, and did not know where it was; that it was out of their power to procure it; and they had sent Mr. Metcalf to Armstrong to get it from. him, supposing he had it. Mr. Metcalf was sworn, and stated that he had called upon Armstrong for the" defendants to get the deed; that Armstrong said he had not had the deed for a long time, and did not know where it was. Armstrong lived in Peoria at the time of " trial. Plaintiff had been duly notified to produce, and did not. The secondary evidence was admitted under this proof, and we think well enough. Parties are required to make diligent search and inquiry; this inquiry was made of the very person whose muniment it was, and in all probability had it, if-in existence. His answer to the inquiry is competently proven by the witness who made it. It was not necessary to call the person himself, unless circumstances should raise the suspicion that the answer was untrue, or that the deed was probably in existence, and could be had upon proper search. Here the answer was "positive and unequivocal, that it was not in his possession, and he knew not where it was. Under these circumstances, he being entitled to its custody, it is presumable it was lost or destroyed. But independent of the principle of common law, the statute has made the record of the deed evidence, whenever it shall appear to the satisfaction óf the Court that the original is not in the power of the party wishing to use it. Gale’s Stat. 153, § 17.

The next objection is to the deed from- the county to Armstrong, on the grounds that it was not made by the county, and is not under the seal of the county. I think the objection is not well taken. The deed purports to be “ between the County Commissioners of the county of Peoria, and State of Illinois, of the first part, and James C. Armstrong, of the second part, Witness eth, That the said Commissioners, party of the first part, for and in consideration,” &c., and concludes, “ In testimony whereof, the party of the first part have hereunto set their hands and seals.” (Signed,) “John Coyle, [l.s.] Orin Hamlin, [l.s.] Andrew Tharp, [l.s.]

The acknowledgment of the deed was taken by the County Commissioners’ clerk in open court, certifying that they are the “legal acting Commissioners,” with the seal of the Court, authenticating the acknowledgment.

This is a corporation, and it possesses a seal, and it is true that they must authenticate their solemn acts of record, and by deed, by the seal of the corporation.

But the clerk, not the Commissioners, is the keeper of the seal. What they order as a Court, he will enter and authenticate with the seal. But what they do in pais, he cannot, otherwise than as it is ordered of record, or acknowledged before him, where he is allowed to take such acknowledgment, as in this case. They have no right to take, or use the seal. No one, I imagine, would contend, that the clerk could sign and seal the deed for the Court. They may sit in open Court, and make, seal, and acknowledge the deed, or they may make and seal it in pais and acknowledge it before the clerk. In either way, the corporate seal to the attestation of acknowledgment will satisfy the requirements and principles of law, requiring corporations to act under seal. I do not perceive how they could well get the seal to it in any other way, without dispensing with their own signatures, which I think to be necessary. The individual names of the members of the Court are signed, with their private scrawls, without annexing an official description. But the introductory part of the deed has fully described the grantors, and the witness to the deed is made by the “party of the first part.” We know by law, that the corporation is represented by official persons, and these representatives of the corporation have officially, as such, acknowledged it. This is all proper, and well ■enough. The Patent in this case issued to the “County Commissioners,” naming the individuals then filling the office, and their successors in office. The decision in 1 Scam. 604, so far as intimation was thrown out by the Court that it should have been in the name of the “county,” therefore, does not apply. The Patent in that case was to the