93 Ill. 415 | Ill. | 1879
delivered the opinion of the Court:
Two questions arise upon this record.: 1st. Is the property in which appellee claims dower, described in the petition as “part of the north fraction of section 10, township 39 N., range 14 E. of 3d principal meridian, Cook county, Illinois, embraced within the following boundaries : beginning at the S. W. corner of lot 4 in block 8, in the Chicago Dock and Canal Company’s subdivision of the original water lot 35, and accretions thereto, and all of block 8 and accretions, and that part of block 19 lying east of sub-block 2, all in Kinzie’s addition to Chicago, running thence by direct line in a southerly direction to the S. W. corner of water lot 35, in Kinzie’s addition to Chicago, at the Chicago river, thence easterly along the Chicago river to the shore line of Lake Michigan, thence northerly along said shore line to a point where the south boundary of Indiana street intersects said lake shore, thence by a direct line to the place of beginning,” included in ■ the mortgage executed by Robert A. Kinzie and appellee, his wife, to Frederick R. Backus and Nathaniel Witherell, Jr., on the 18th of January, 1838 ?
2d. If it is included, are the proceedings to foreclose that mortgage void as found by the decree below?
1st. The property described in the mortgage is “water lot 36.in Kinzie’s addition to Chicago,—the dimensions and description of which will fully appear by reference to the map of said addition now on file in the recorder’s office of Cook county.”
Robert A. Kinzie entered the north fraction of section 10, being that portion of fractional section 10 lying north of the Chicago river, on the 7th of May, 1831; and early in February, 1833, he laid out therein Kinzie’s addition to Chicago, and filed the map or plat of that addition, in the recorder’s office of Cook county, on the 22d day of the same month. This map, it appears, was again recorded, the last record exhibiting some difference of lines and measurement from the first, but none that are o'f any consequence to the present controversy. The original map and records having been destroyed in the great fire of October, 1871, copies or tracings from the records, that had been made for purposes foreign to the present case, were given in evidence. By them the portion of the addition under consideration is shown by the plat on the page following, (427.)
Before his marriage with appellee, Robert A. Kinzie, on the 25th of February, 1833, conveyed block 19 and water lot 35 to John H. Kinzie, and on the next day he conveyed block 8 to David Hunter, and there is in the evidence, no foundation for a claim of dower in behalf of appellee in the property thus conveyed.
The water lots were numbered from west to east, and it will be observed there is no number .36, but next east of Ho. 35 there is a vacant strip, of a triangular shape, unnumbered, extending from Ho. 35 to the lake shore, which is the property in controversy. When the addition was laid out, this was about 24 feet in width on Water street, and extended some 300 feet on the east line of lot Ho. 35. It is also contended by counsel for appellee, and may be conceded, that the south line of Water street was not extendéd east beyond the east line of lot Ho. 35.
In the year 1834, Chicago river was straitened, at and near its mouth, by cutting through the sand-bar, and constructing piers, etc., and this caused accretions to form rapidly, north of the river and on the east side of this addition; and these accretions now, partly by natural causes and partly by artifi-
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cial means, extend out into Lake Michigan about one-half mile from what was the shore when this addition was laid out.
It is proved that after the accretions became considerable to the east of lot Ho. 35, the land lying east of that lot was commonly known as water lot Ho. 36.
Fernando Jones says: “The water lots in Kinzie’s addition were numbered from 1 to 35, from west to east. Outside of lot Ho. 35, there was what was popularly known as lot 36. That was so described by my father in the lease, and by Robert Kinzie in a mortgage.” * * * Alexander Wolcott, in speaking of the formation of accretions, mentions “water lot Ho. 36.” On cross-examination, he says: “By water lot 36 I mean what is outside or E. of lot 35. Think it was known as water lot 36.” Mahlon D. Ogden says: “Have resided in Chicago 42J years. * ‘ * * Have been familiar with the plat and premises known as Kinzie’s addition ever since I have been here. The water lots in Kinzie’s addition are numbered 1 to 35, from W. to E. Have been familiar with the boundaries of water lot 35. The piece of land E. of water lot 35 was called water lot 36, almost as long ago as I can remember.”
This evidence sufficiently identifies the land intended to be conveyed by the mortgage, and of its admissibility there is no question. See Colcord v. Alexander, 67 Ill. 581. We shall, therefore, read the mortgage precisely as if the vacant and unnumbered lot of ground east of water lot Ho. 35 had been numbered upon the original plat or map of Kinzie’s addition to Chicago, water lot Ho. 36.
This seems to be conceded by counsel for appellee, but they contend that accretions can not pass under the description iiiz the mortgage—that the words, “the situation and dimensions of which will fully appear by reference to the map of said addition,” etc., limit the land conveyed to that to be found within the three lines shown on the map.
We are not convinced by the ingenious and able argument of counsel that this position is sound.
By reference to the map “the situations and dimensions” of the land would appear to be, that land bounded on the Avest by water lot number 35, and on the east by Lake Michigan. To ascertain its eastern boundary, it would be necessary to ascertain where was the line between the land and the lake; and since the accretions became a part of the land to which they were attached, it would necessarily folloAV that that line would follow the receding lake to the east. The accretions do not pass as appurtenant to water lot 36, but as a part of that lot, the same as that part adjoining water lot No. 35, or any other part of the lot.
Our conclusion is, that the property before described in which appellee claims dower is included in the mortgage executed by Robert A. Kinzie and appellee, as his Avife, to Frederick R. Backus and Nathaniel Witherell, on the 18th of January, 1838.
2d. The indebtedness secured by the mortgage not having been paid, on the 10th of December, 1847, the original mortgage and a precipe for a writ of scire facias thereon were filed in the office of the clerk of the Cook county court, a court of general jurisdiction. As shown by the abstract in evidence, a writ of scire facias for a statutory foreclosure of the mortgage was thereupon issued out of that court, under date of December 14, 1847, returnable to the then next February term of the court. The return of the sheriff indorsed on this writ is as follows :
“ The Avithin named Robert A. Kinzie, an G. H. Kinzie, hath not anything in my bailiwick, or plac, or by which I can give notice, as I am within commanded, nor is the said Robert A. Kinzie, an G. H. Kinzie found in the same.
Jan’y 31, 1848. I. Cook, Sheriff.
By John Bench, Deputy.”
On the 9th day of February, 1848, there was an order of court entered, continuing the cause to the next term of court, and directing that an alias scire facias issue, returnable thereto. An alias writ is found among the files, bearing date May 21, 1848, returnable on the “ first Monday of May next.” The return thereon is as follows:
“The within named Robert A. Kinzie an 6. H. Kinzie hath nothing in my bailiwick where or by which I can give notice, as I am within commanded, nor is the said Robert A. Kinzie and Gr. H. Kinzie found in the same.
April 21 st, 1848. I. Cook, Sheriff.
By John Beach, Deputy.” .
On the 4th of May, 1848, it appears judgment was rendered on the scire facias. The material part of the recital therein is as follows:
“ This day come the plaintiffs, by their attorney, and it appearing to the court that two separate scire facias issued herein against the said defendants have been returned nihil, and the said defendants, being solemnly called, come not, nor any one for them, but herein fail and make default, which is ordered to be entered. Therefore,” etc.
And a special execution was directed to be issued against “Water lot 36, in Kinzie’s addition to Chicago, the dimensions and situation of which will fully appear by reference to the map of said addition, now on file in the recorder’s office of the county of Cook,” and other property described in the mortgage.
Special execution was issued upon this judgment June 16, 1848, which was afterwards returned, with this indorsement thereon: -
“The within execution satisfied in full, by the sale of real estate within described, on the 24th day of August, 1848, as per certificate. • I. Cook, Sheriff.
By John. Beach, Deputy.”
A certificate of sale, dated August 24, 1848, for the property in controversy, following the description in the mortgage and special execution, was issued by the .sheriff to Benjamin Jones, and a deed of the same property, by the same descriplion, was executed by the sheriff to the said Jones on the 29th day of July, 1850, and recorded in the proper office on the 5th of August, 1850.
Appellee objects that the return on the scire facias is insufficient. The words “bailiwick” or “ plac” simply mean, and should be read, “county.” 1 Bouvier’s Law Diet. 155. But counsel insist the word “an” shall be taken conjunctively and construed strictly, and hence it may be true one was not in the county, while the other was. This would be to shut our eyes to the plain and obvious meaning intended by the use of this language. It was evidently used by one not skilled in the niceties of verbal criticism, and should be construed in its popular sense, when used in such a connection. In that sense “ an” is to be read disjunctively.
But the objection most earnestly pressed by appellee, against the judgment on the scire facias, is that there were not two returns nihil, before judgment was returned.
The second writ, we have seen, bears date May 21st, 1848, but the return indorsed bears date April 21st, 1848, and the judgment Avas-rendered on the 4th day of May, 1848.
There are two views that may be taken of this. First: If the second Avrit Avas before the court when the judgment was rendered, May 4th, 1848, it is clear the mistake in date is in the issuing of the Avrit, and not in the return, and the mistake being in the date of the writ, the return shows the writ must have been issued on or before the 21st of April, 1848—ten days before the first day of the term of court at which the judgment was rendered, and so it is sufficient.
On the other hand, if that writ was not before the court when the judgment was rendered, since it recites that “two separate scire facias issued herein against the said defendants have been returned nihil,” there must have been another scire facias issued and returned nihil, Avhich has been lost from the files or destroyed. Miller v. Handy, 40 Ill. 448; Turner et al. v. Jenkins, 79 id. 228; Mulvey v. Gibbons et al. 87 id. 367. In the latter tAvo cases it Avas held that Avhere the court, in its judgment or decree, recites that there was proper service, this recital is not disproved by the mere presence in the record of a defective writ or return. But, since we are of opinion, if it is to be presumed that the writ bearing date May 21 si, 1848, was before the court on the 4th day of May, 1848, when the judgment was rendered, the return sufficiently shows that the date of the writ is a clerical error, and that it was, in fact, issued more than ten days before the first day of the term at which the judgment was rendered, and so there is no necessity for the application of the principle.
Another objection urged, is that the execution recites a judgment obtained at the June term, 1848, instead of the May term of that year, and that the judgment, as rendered, was for $1617.50, and costs, but the execution recites a judgment for $1629.91^, and costs.
The records of Cook county having been destroyed by the great fire of October, 1871, the only evidence that was possible, of these proceedings, was that furnished by the abstract offices.
The execution was issued June 16, 1848. The date of the judgment is not stated in the memorandum relating to the execution. The memorandum of the execution, however, immediately follows that in relation to the judgment, which gives, correctly, the date of the judgment. Taking the two together, it sufficiently appears that the execution was issued on the proper judgment. The abstract of the sheriff’s deed recites a judgment rendered at the June term, 1848, instead of the May term. This is evidently a mistake, probably of the abstractor, and does not affect the validity of the title. Phillips v. Coffee, 17 Ill. 157.
Two abstracts were in evidence, and they both, in stating the amount for which judgment was rendered, state it to be $1617.50. In one of them nothing is said of costs in connection with the judgment, and in the other, immediately following the statement, of the sum, are the words, “as also for their costs.” In neither abstract is the amount of the judgment stated in the memorandum, relating to the execution, but in the abstract of the certificate and deed, both state the amount of the judgment at the sum of $1629.91i. In the certificate it is “$1629.91^, and costs of suit.”
We think it but fair to presume, under all the circumstances, that this difference is made up of the costs of suit. The abstracts showing the condition of the title would have shown if there had been another judgment which had been a lien on this property, yet nothing of the kind appears. The question is purely one of identity. Was the sale, etc., under this judgment? In view of the great lapse of time and the entire destruction of the original records, and in the absence of any proof that there Avas any other or different judgment under which it is probable the sale could have been had, Ave think public policy requires we should hold the variance immaterial.
On the Avhole, we think the decree below should be reversed, and the cause remanded, Avith directions to that court to enter a decree dismissing appellee’s petition.
And it will so be ordered.
Judgment reversed.