1. The authentication by the master in chancery in New York of the deed to William James, when made, was in conformity to the laws of New York for the conveyance of real estate within the State. By the terms of an act concerning the proof of deeds and conveyances, passed by the legislature of New York on the 6th of April, 1801, and substantially re-enacted on the 12th of April, 1813, a master in chancery was authorized to take the proof and acknowledgment of deeds. [1] This authority remained unchanged until July 1, 1818. [2] After, that, he was forbidden to do any official act which did not exclusively pertain to his duties as a master in the Court of Chancery. If the grantor was not known to the officer taking the acknowledgment, the law required that the deed should be proved by satisfactory evidence, and that the substance of the evidence, with the names of the witnesses, should be incorporated in the certificate of acknowledgment. All this was done in the case of this deed; and if the lands had been in New York it is certain that the deed could have been read in evidence in any of the courts of that State without further proof. What effect is to be given to such an instrument, thus authenticated, in Illinois, must of course depend wholly upon the statutes of that State; and on this point we are not left in doubt. Provision is made in an act of the legislature of Illinois [3] for the record of all deeds to lands in that State which have been executed without the State and within the United States, and have been acknowledged or proved in conformity to the laws of the State where executed. The act also declares that all such deeds, when so recorded, may be used as evidence without further proof of their execution. The deed under review, having been acknowledged and proved, as required by the laws of New York, when it was executed, was entitled to be recorded in Illinois, and was properly read in evidence. It was, indeed, insisted that there should have been some proof of the official character of the master in chancery. But neigher the legislatures of New York or Illinois saw fit to require any such proof, and therefore none was necessary. [4]
2. As respects the deposition of Mr. Hawley, read to the jury to prove the death of William James, and the names of his heirs-at-law, the exceptions taken to it cannot be sustained; for the witness really testifies to every material fact of his own knowledge, although it is competent to prove death and heirship by reputation.
3. Did the court err in suffering the record of the proceedings in partition to go to the jury?
The Circuit Court of Pike County, where a part of the real estate was situated, had jurisdiction, on proper bill or petition filed, to decree partition. All the parties in interest were required to have notice of the application for such partition, by summons duly served or by advertisement, to be published for four weeks in the nearest newspaper to the premises.
Such a notice was published, for the time specified, in a newspaper printed in an adjoining county, and the presumption is, that it was the nearest newspaper to the premises, in the absence of any proof to the contrary, or that a newspaper was printed in Pike County. [5] But the decree finds that due legal notice had been given to all the defendants, and the courts of Illinois hold that such a finding is prima facie evidence of the fact, although not conclusive. [6] There was nothing in the record to show that the finding was not true, and the burden of proof rested on Secrist, who attacked the jurisdiction, to prove that notice in conformity with the statute was not given, notwithstanding the finding of the court. [7]
The jurisdiction of the court being once established, its subsequent proceedings cannot be collaterally questioned. Secrist is a stranger to the proceedings, and does not claim under them, and can make no objection that does not go to the jurisdiction of the court. He cannot be allowed to object to a result of which the parties to the decree have not complained. [8] There was enough in the record to show that the court had jurisdiction of the subject-matter and the parties; and one who was not a party to it, and seeks no rights under it, cannot complain that it does not contain the original bill or petition for partition.
We think all the objections which were taken to the introduction of this record in evidence were property overruled by the Circuit Court.
Whether the record from Adams County-read in evidence as a foundation for the introduction of a deed from Dexter, the executor, which was a link in Green's chain of title-was properly received, depends altogether upon the laws of Illinois. In 1853, the legislature of that State provided for the conveyance of real estate by non-resident executors. The substance of the act has been stated on a preceding page. [9] What the act requires was done in regard to the will of Mr. J. B. James, and the record which was resisted shows that the executor complied literally with its requirements, and was authorized to execute the powers given in the will, so far as to convey real estate in Illinois. A certified copy of the record of the County Court of Adams County became, under the general laws of the State, evidence.
JUDGMENT AFFIRMED WITH COSTS.
Notes edit
- ↑ See vol. 1 Laws of New York, published at Albany by authority in 1802, p. 478; also Revised Laws of New York of 1813, p. 369.
- ↑ See 4th vol. Laws of New York, session 1818, p. 44.
- ↑ Session Laws Illinois, 1847, p. 47, § 3.
- ↑ Vance v. Schuyler, 1 Gilman, 163.
- ↑ Stow v Kimball, 28 Illinois, 107.
- ↑ 30 Id. 116, Goudy v. Hall.
- ↑ Ib. 117
- ↑ Gregg v. Forsyth, 24 Howard, 180.
- ↑ See supra, p. 748.
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