20 Ill. 14 | Ill. | 1858
The only questions in this case are as to admissibility of the two deeds, which were admitted as ancient deeds, without proof of their execution in any way. One of these deeds bears date in 1819, and there is a certificate upon it, purporting to show that it was acknowledged in open court in Tennessee, in the same year of its date ; and from a certificate of the recorder of Madison county, where the lands were situated, it appears that it was recorded in the recorder’s office in that county, in the year 1820. There is no pretense that the certificate of acknowledgment was sufficient under our law.
The other deed, which was admitted in evidence without proof of its execution, bears date in 1825 ; has no subscribing witness, has no certificate of acknowledgment, and was never recorded till 1853, and purports to have been executed in Kentucky. To this deed is attached the following certificate :
STATE OF KENTUCKY, shelby county. } sct.
I, Hector Alhinin, clerk of the County Court for the county aforesaid, certify that this deed, from Christopher Vanzant to William Rankin, was produced to my predecessor in office (or his deputy) on the 11th day of October, 1825, 'and acknowledged by the said Christopher Vanzant to be his act and deed, as appears from an indorsement on said deed, in these words and figures (to wit): “1825, 60, Oct. 11th, A. by C. Vanzant,
In testimony whereof, I have hereto subscribed my name and [seal.] affixed the seal of said court at Shelbyville, this 8th day of March, 1853, and in the 61st year of the Commonwealth.
HECTOR ALHININ, Clk Shelby County Court.
All we know of the custody of either of these deeds is from the testimony of Flemming, who testifies that they were produced to him in 1853, by the plaintiff, who now claims under them ; and all there is of any proof of possession of the premises under the deeds is, that Charles A. Rankin, claiming to act as the agent of the grantee in the second deed, in 1853, hauled some timber on to the land, which was then vacant prairie, for the purpose of building a house thereon, and that the defendant, a few days thereafter, threw the lumber off the land into a by-way, and took possession of the premises himself, by erecting a house thereon. This presents all there is in this record, as laying the foundation for the introduction of these deeds.
Deeds over thirty years old, are called ancient deeds, and may be read in evidence without proof of the hand-writing of the grantor or subscribing witness, where there is one. But in order to allow this, certain corroborating circumstances must be shown. Formerly, possession under the deed during the thirty years was an indispensable circumstance to raise the presumption of its genuineness, but lately, many courts have either limited the time of possession to a shorter period," or dispensed with it altogether, while others have strictly adhered to the original rule. Indorsements or memoranda, upon the deed or ancient paper, have been, considered as circumstances indicating that they are genuine, where such indorsements or memoranda are of such a character as to show to a cautious and discriminating mind, that they would not be there, had the paper been a forgery. When the present state of the authorities on this subject is considered, it is difficult to lay down a general rule for the admission of ancient deeds, which shall properly protect the rights of those claiming under them, and at the same time guard others against forgeries. To say that the bare production of a deed by the party claiming under it, bearing date more than thirty years ago, is sufficient to raise, a presumption of genuineness, and to admit it in evidence, would be opening a door to frauds which would unsettle all land titles at once. It is as easy to date a deed 1815 as 1850, and it is as easy to forge a fraudulent memorandum upon a deed, as it is to forge the deed itself. There was, at least, some degree of safety, in the rule which required a long continued possession under the deed for that could not be got up secretly, and on the spur of the moment, as a forgery may. Great weight, formerly, with much propriety, was attached to the appearance of the document, denoting its real antiquity, but that has ceased to be entitled to any considerable consideration, for it is well known that modern chemistry will, in a single day, produce a paper, having every appearance, both in texture and writing, of the greatest antiquity. When we remember that skill in forgery has kept pace with the rapid advance in the arts and sciences, which is peculiar to our own times, and that the integrity of mankind is not a whit improved with the improvement of the age, we are solemnly admonished, that increased vigilance is necessary to protect the public against the designs of those who are capable of committing crimes. In ■ certain portions of our State the facility now offered by our recording laws, for the perpetration of frauds and forgeries is such, that it has been said that no man feels secure that Ms estate may not be taken from him at any moment, and it is only necessary that we should open this new door to such practices, to totally destroy all sense of security in land titles. Let this court once proclaim, that a deed of ancient appearance and ancient date, with plausible memoranda upon it, may be read in evidence, without other proof of its genuineness, and there will shortly be such a resurrection of old parchment, as was never before heard of. The facility for proving forged deeds genuine, would be only equalled by the difficulty of proving their falsity. If the party claiming under the ancient deed, produces it, it is said to come from the proper custody, and hence, we shall presume it genuine. And suppose it a forgery, who else should produce it, but the forger who is to be benefited by it ? Indeed, if a forged deed, we should expect to find it nowhere but in the hands of the forger, or else there might be some means of accounting for or detecting it. If the party is bound to show, by legitimate and competent proof, that the paper has been actually in existence the thirty years, there may be some security in the fact, that the paper has not been got up for the immediate occasion, and if the memoranda upon it are required to be proved by legitimate evidence to be genuine, then we shall know that the whole, at least, is not a forgery, and if along continued possession, under the deed, or at least, consistent with it, is proved, that may afford some evidence at least, that .those interested in the subject matter of the conveyance, knew of its existence, and believed it to be genuine. Here there is nothing of the sort. There is nothing shown to the court which might not have been produced the day before it was shown to Mr. Flemming, while the papers themselves show, that if genuine, evidence of a very satisfactory character might have been produced of the genuineness of the indorsements upon them, and of the actual antiquity of the deeds. Let us consider for a moment the indorsements' upon thé first deed. They are as follows:
State of Tennessee,
Davidson County Court,
January Session, 1819.
This indenture of bargain and sale, between Lemuel Tucker of the one part and Christopher Vanzant of the other part, dated the 15th day of January, 1819, for 160 acres of land in the Blinois territory, was acknowledged in open court by the said Lemuel Tucker to be his act and deed, and ordered to be so certified. The probate being of record in this court.
In testimony whereof, I, Nathan Swing, clerk of said court, have hereunto set my hand and affixed the seal of said court at office [seal.] at Nashville, this 20th day of January, in the year of our Lord 1819, and 43rd year of American Independence.
NATHAN EWING.
Recorder’s office, Edwardsville, Madison Co., Illinois. I, Josias Bundle, Recorder for Madison county, do certify the within deed to be duly recorded and examined in Book vol. 4, page 29, this 1 day of Jan., 1820.
JOSIAS RUNDLE.
(Tit.)
No. 6869.
Recorded Vol. 4, p. 29.
Exd. J. Randle. 150.
Lemuel Tucker To Christopher Vansant. } Deed. 160 Acres.
Now this first certificate, if genuine, shows that the probate of the deed is of record in the Davidson County Court, in Tennessee, and if there be any such record there, it was the easiest thing imaginable to show it, and if shown, it would have afforded a strong presumption that the deed produced was the one referred to in the record. But more satisfactory still might have been the records of Madison county. If the certificate of Bundle is genuine, that this same deed was spread upon the records of that county, and although not authorized by law to be recorded, if an exact copy of this deed be actually there found, in a place in the record book corresponding to the date of the certificate, it would show very satisfactorily that there was an original paper in existence at that time, corresponding to the one produced, and which might reasonably be inferred to be the same. It is no answer to say that these things were proved by the certificates themselves, the first of which is attested by the seal of the court. If the certificate of the clerk, attested by the seal of the court, purported to give an exemplified copy of a record of that court, there would be force in the suggestion. It purports to give the substance of what took place in the court, and that there is a record in the court, but what that record is, it does not profess to give. That certificate and seal is not in conformity to the law of Congress so as to make it evidence, and if it is not such evidence, it proves nothing. And the same may be said of the certificate of the recorder of Madison. Ho had no legal authority for recording the document, and hence the record was void. It was not a record, and hence he could by his certificate make no competent evidence in relation to it. He might as well have recorded an ancient ballad and certified that fact, and thereby proved the existence of the old song at that time. It must be remembered that official certificates are only evidence by force of positive law, and that except where they are by law declared to be evidence, they are not proof of what they certify to. Still it was not beyond the reach of the party to prove there are such records, or entries purporting to be such records, in the old record books; and as they would have afforded evidence tending to prove the fact that the deed produced was actually in existence in 1819 and 1820, it was the duty of the party to produce it. Surely, when the party is asking the court to dispense with a general rule of law, and to presume so much in his favor as to admit his deed on trust, or on mere suspicion, he ought to do everything which it is in his power to do, to satisfy the court that the deed is genuine. It may be supposed that this rule, that the party shall produce the best evidence of which the nature of the case is susceptible, is not applicable when ancient deeds are offered, because although it may be shown that the subscribing witness is still living, he need not be produced to prove the deed; but we apprehend that such indulgence would not be granted, were it shown that the party producing the deed knew the witness was living, and had it in his power to produce him. So absurd a proposition as that, is not and cannot be the law, unless made so by the legislature, and if any courts have ever so held, they have misinterpreted the common law. If there ever was a case where the party should exhaust every effort to satisfy the court that the presumption which he asks the court to draw in his favor, that his deed is genuine, is consistent with the very fact, it is a case of this sort, where at least we can never feel satisfied that we are not lending our aid to fraud and forgery.
The second deed admitted has much less the indicia of genuineness than the first, but we deem it unnecessary to enter into a minute discussion of it. Without saying at this time when we will or will not admit papers as ancient deeds without proof of their execution, it, is sufficient to say that we are very clear that these deeds were improperly admitted. We choose to proceed cautiously before attempting to lay down any general rule which shall govern all cases of the sort. Indeed, it may be almost impossible to lay down such a general rule with safety, but we may safely say that in all cases the party shall do everything in his power to raise the presumption of genuineness. To do less than this, it would be better to repudiate the rule altogether ; but this we are not at liberty to do, for it certainly is a part of the common law; but we are satisfied that security to property requires that it should not be loosely extended.
The judgment must be reversed and the cause remanded.
Judgment reversed.
