| Ill. | Sep 15, 1870
delivered the opinion of the Court:
Julia A. Quigg- filed her petition for assignment of dower, and obtained a decree, to reverse which, appellants have brought the case to this court.
The court erred in permitting, after objection, ex ¡parte affidavits to be read as evidence. Appellee’s husband was purchaser, at a sheriff’s sale, of the premises. The execution under which the sale was had, had been lost, and could not be found. In proof, affidavits of the clerk of the court from which the execution issued, and of the widow and administratrix of the sheriff who made the sale, showing due search for the paper, were offered and admitted. These affidavits were taken out of court, and without any notice to the opposite party.
This court has gone to this extent, and no farther: that a party to the suit may make an ex ¡parte affidavit as to the loss of a paper, so as to permit secondary evidence of the contents. This arises from the necessity of the case. Until our recent statute, parties could not be witnesses, except in special cases before justices of the peace. The general rule was, that a man could not be a witness in his own cause. The exception has been made, as promotive of justice, and from the fact that the loss of a paper is generally known o.nly to the party. Dormady v. State Bank of Illinois, 2 Scam. 236; Palmer v. Logan, 3 Scam. 57; Tayloe v. Riggs, 1 Pet., 591" date_filed="1828-02-22" court="SCOTUS" case_name="Tayloe v. Riggs">1 Peters, 591; Wade v. Wade & Brown, 12 Ill. 89" date_filed="1850-11-15" court="Ill." case_name="Wade v. Wade">12 Ill. 89.
Do third persons, in every way competent witnesses, come within the exception ? Counsel for appellee cite Newsom v. Luster, 13 Ill. 176, and Pardee v. Lindley, 31 Ill. 174" date_filed="1863-04-15" court="Ill." case_name="Pardee v. Lindley">31 Ill. 174. In neither of these cases is the direct question presented or decided. In the first case, the court merely held that an agent might make the necessary affidavit, to satisfy the court, that an original deed had been lost, so as to permit a copy from the record to be read in evidence. This was merely a construction of this provision of the statute: “ If it shall appear, to the satisfaction of the court, that the original deed * * * is lost, or not in the power of the party,” etc.
The statute did not require any proof of diligent search, but merely that the deed was either lost or not in the power of the party seeking to introduce a copy. Cross-examination would not aid, in regard to such facts. The case in 31 Ill. supra, was decided after the enactment of the statute of 1861, which expressly permitted an affidavit to be filed in the cause by the party, or his agent, stating that the deed was lost or not in the power of the party wishing to use it. Gross’ Stat. 1869, p. 90, sec. 38. These cases do not, then, decide the question.
One serious objection to the admission of ex parte affidavits is, that the opposing party is denied the privilege of cross-examination. This is a most efficacious test for the discovery of truth, and should never be departed from, except from actual necessity. A witness, subjected to this test, can not easily impose on the court, or fabricate falsehood. Appellants were deprived of this right.
Greenleaf, in speaking of the evidence necessary in case of a lost instrument, says: “ The party is required to give some evidence that such a paper once existed, * * * and that a bona fide, diligent search has been unsuccessfully made. If it belonged to the custody of certain persons, or is proved, or may be presumed to have been in their possession, they must, in general, be called and sworn to account for it, if they are within reach of the process of the court. If the search was made by a third person, he must be called to testify respecting it.” 1 Greenl. sec. 558. In Poignard v. Smith, 8 Pick. 272, the court say: “ The affidavit of a party, on the question of loss of a paper, may be admitted to exclude any presumption that he may have it in his possession; but those who may be admitted as witnesses must testify in the usual form, in order that the advantage of cross-examination may be preserved.”
We think that the clerk of the circuit court and Mrs. Porter should have been produced as witnesses, and examined in the ordinary mode. It is no answer to say, that these persons did not make affidavit as to any issue of fact. It is true, their evidence was addressed to the court, and not to the jury, but the determination of the court, as to the loss of' the execution and the alleged diligent search, was a matter of deep interest to appellants. On that, the case hinged, as appears from tbe record. They should have had the privilege to cross-examine the affiants, as to the assumed fact of the loss of the execution and the character of the search. The following cases indicate the correctness of this rule: Rankin v. Crow, 19 Ill. 626" date_filed="1858-04-15" court="Ill." case_name="Rankin v. Crow">19 Ill. 626; Whitehall v. Smith, 24 Ill. 166" date_filed="1860-04-15" court="Ill." case_name="Whitehall v. Smith">24 Ill. 166.
It may be proper to remark, that the transcript of the execution docket offered, is competent evidence, tending to prove the issue of an execution. It shows no return, for the reason that probably the sheriff made none. It was kept as such dockets are usually kept by the clerks of the circuit courts of the State. Indeed, we think it eminently proper, that the column for the entry of the return should be preceded by columns for the names of the parties, the kind of process, date of execution, when returnable, amount of debt and costs. The clerk could not enter a return, if none had been made; but the entries, preliminary to the return, and which were necessary to an understanding of the last entry, constitute evidence to be considered with all the other evidence. Dunlap v. Berry, 4 Scam. 328; Ellis v. Huff, 29 Ill. 449" date_filed="1862-11-15" court="Ill." case_name="Ellis v. Huff">29 Ill. 449.
The slight discrepancy between the amount of the judgment, as entered, and the amount of the debt in the execution docket, is an irregularity which will not’ vitiate or destroy the title. It is a mere clerical mistake, which can not be taken advantage of collaterally. Phillips v. Coffee, 17 Ill. 154" date_filed="1855-12-15" court="Ill." case_name="Phillips v. Coffee">17 Ill. 154.
The decree must, however, be affirmed, notwithstanding the error of the court. The petitioner alleges seizin of her husband during coverture, and that appellants derive their title through mesne conveyances from him. They were in possession under such conveyances. The proofs establish these allegations. Under the issue of non seizin, the demandant in dower is not required to make strict proof of a regular paper title. Hence the widow need only produce such evidence as will raise a fair presumption of the seizin of her husband. Such presumption may be rebutted by proof of a better and paramount title, derived from other source than the husband. 2 Scrib. on Dower, 199. The authorities fully sustain the principle enunciated. Griggs v. Smith, 7 Halst. 22; Forrest v. Trammel, 1 Bailey, 79.
The deed executed by the deceased husband to the grantor of appellants was properly acknowledged by him, but does not divest the widow of her right of dower. The acknowledgment does not show that she was personally known to the officer, or that she relinquished her dower according to the statute. Lindley v. Smith, 46 Ill. 524.
The decree of the court below is affirmed.
Decree affirmed.