39 Ill. 602 | Ill. | 1864
delivered the opinion of the Court:
In answer to the rule upon the attorney to produce the authority under which he acted in bringing the suit, he exhibited to the court a power of attorney. It purported to be signed by all of the appellees but Allen Turner, and authorized the commencement of the action. There seems to be five owners of the land, all of whom joined in the execution of the power, but Mary .Turner was not joined by her husband. When, however, we find four out of five of the owners formally acting, and the other consenting, although irregularly, we think the authority was sufficiently shown.
It is insisted that the court erred in overruling the motion to suppress the deposition of Frances Bourse. The objection taken is, that the officer’s certificate is not accompanied with a United States revenue stamp. Even if there was any force' in this objection, it is not well taken, because the record fails to show that any such motion was entered, or objection made, in the court below. Such an objection will not avail, made for the first time in this court. Uor could it be taken on the trial in the court below. If there was any force in the objection, it should have been presented on a motion to suppress the deposition, which should have been determined before the commencement of the trial. If an objection, it is only formal, and our statute expressly declares that such objections shall be determined before the trial. It is otherwise with substantial objections. If the evidence is irrelevant, it may be excluded on the trial; but if only to the form, the party should have an opportunity of removing the objection, by procuring the witness or obtaining the evidence, if it may be legally done.
Nor is any error perceived in refusing to exclude the evidence upon the ground that the witness was interested. First, because this objection should have been raised, either when the deposition was taken, if the 'other party was present when it was taken, or on motion before the trial. If there was a disqualifying interest, the party in whose favor it was taken should have had the opportunity of removing the interest if it could be done. But, in the second place, in this case there was no disqualifying interest. She was the mother of the plaintiffs below, and the widow of Cephas Mills, of whom they claimed to inherit the property. She was entitled to dower in the premises in any event. That right was not dependent upon the recovery of the property by the heirs. There can be no pretense that the sale by the administrator, even if sufficient to pass the title, affected her right to dower in the lands. The success of either party could not in the slightest degree affect her interest.
It can make no difference what covenants the deed to Cephas Mills may have contained. Title is not passed or affected by covenants in a conveyance. All writers on this branch of the law, from the time of Coke to the present time, inform us that such covenants are inserted for a different object and served a different purpose. It is the granting part of the deed which purports to and does pass the title. The covenants are only inserted to indemnify the grantee in case they should be broken. They are collateral to the title, and may or may not run with it.
No objection is perceived to the certificate of acknowledgment of Lyon to the deed by him to Harris and James. The officer in his certificate states, “ personally appeared Hezekiah Lyon, to me personally known • to be one of the parties described in and who executed the within conveyance, and duly executed and acknowledged the same as his act and deed.” This comes within the provisions of the twentieth section of the conveyance act. Scates’ Comp. 963. This acknowledgment is sufficient.
It however remains to determine whether' defendant below showed title in himself by the administrator’s sale. Green, the administrator, who made the sale, was owner in part of the debt for the payment of which the land was sold. He and Lockwood obtained the claim and agreed to procure a sale of the land for its payment, and to divide the profits. Parker became the nominal purchaser at the sale, at Green’s request and for his use, and quitclaimed to him without consideration. Green afterward conveyed to appellant. Thus it will be observed that whatever right he has is subject to any defect that may have existed to the title in the hands of Green, as they were partners in the whole transaction, and appellant cannot claim any benefit that could inure to an innocent purchaser, as he had full notice. The evidence shows that Green was creditor, administrator, auctioneer and purchaser at the sale, thus having it in his power to strike down the property at his own price; and we see as the result of representing all of these relations to the estate, that 960 acres of land were sold for the sum of $1,134. The evidence shows the lands embraced in the deed to Lockwood, were worth from six to ten dollars per acre. If they were worth eight dollars per acre, that would give $3,840, while they sold for but $600, and if the whole 960 acres were worth the same per acre, their value would be $7,680, and they only brought $1,135. A large compensation for acting as creditor, administrator, crier and purchaser at his own sale.
The rule is well established, in equity, that the simple fact, the purchase by assignees, trustees, commissioners, executors or administrators, at their' own sales, renders the sale invalid and it will be set aside by the court. This, too, whether loss has resulted or not, to the owner. Thorpe v. Cullum, 1 Gilm. 614. But at law, a different rule prevails, as in that forum it must not only appear that the person occupying a fiduciary relation and in whom the law has reposed a trust, has become the purchaser, but that the sale was accompanied with fraud (Jackson v. Cadwalader, 14 Johns. 407) to render the sale invalid.
Then was there fraud in this transaction ? From Green’s testimony it appears that the whole matter was designed as a speculation. The note was purchased as a means of obtaining title to this land at greatly less than its value, and Green was to become the administrator to carry out the design. The evidence shows how well the design was executed, when probably near $7,000 was made as a profit on $1,100 and a, trifle over. It can hardly be realized that the forms of the law could be more terribly abused for the perpetration of injustice, wrong and fraud than in this case. Instead of its being just and proper it is iniquitous and monstrous. How any upright man could hold that this transaction was not fraudulent, we are unable to conjecture. We are astonished that such a claim of title could ever be relied upon in a court of justice. Our legal tribunals can never be used to sustain such proceedings, and permit parties who have attemptéd to prostitute the forms of law and the process of courts, as the engines of such fraud and iniquity. Appellant was a party to the transaction and must be held responsible for its consequences. The judgment of the court below must be affirmed.
Judgment affirmed.
