Abraham Clark Freeman John Proffatt.

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the possession against the defendant in execution. But to
require him to show that his purchase was legal and valid is
not requiring the trial of title by the justice of the peace in
this action.

The purchaser does not acquire the right to recover by
showing that he bid off the land at a sheriff's sale. Until he^
acquires the sheriff's deed after the redemption has expired,
he is only regarded as a bidder. If the sale is not set aside,
or a redemption is not made within the period limited for the
purpose, he then becomes entitled to the sheriff's deed. And
inasmuch as judgments, executions, records of courts and
their process cannot, under the rules of evidence, be proved
orally, they must be produced as evidence, or at least authen-
ticated copies. To require such evidence is not a trial of title
any more than is the production of a lease by a landlord in a
forcible entry and detainer. Its production shows a title to
possession and estops the tenant from disputing the landlord's
title; and the production of a valid judgment, an execution,
and sheriff's deed estops the defendant from disputing the
title of the purchaser to possession of the land. In neither
case does the title to the land come in question, but simply
the right to its possession.

Records and proceedings of courts are public documents, to
which all persons have access, and of which they must take
notice. When plaintiffs purchased as redeeming creditors,
they should have examin^ the transcript from the justice's
docket, and had they done so they would have seen the jus-
tice had no jurisdiction of the person of the defendant, and
that the judgment was unauthorized, and that any sale under
it would be inoperative and could confer no titie. If they
fiedled to do so, it was a neglect of duty and they are equally
responsible for the consequences as if they had made the ex-
amination and had actual notice. They will not be heard to
eay that they did not have the notice, because it was open to
their inspection, and entirely accessible to them. They were
endeavoring to acquire legal rights by the process of the law,
and in doing so they should have conformed to its require-

Digitized by


April, 1866.] Johnson v. Bakeb. 297

mentBy and seen that other persons had done likewise. The
ooort below decided correctly in rejecting the transcript under
which the first sale was made, as there was not such a service
as authorized the justice to render a judgment, and for want
of a valid judgment all subsequent proceedings, like the judg-
ment, were void and incapable of conferring any rights upon
the purchaser under the transcript, or upon their assignees,
which plaintiffs are under the statute.
The judgment of the circuit court must therefore b<^ alBSrmed.


lUiTKB 28 Vom: See Buiekerr. Bmtk qf BrovmavUle, S3 Am. X)eo. 446, note
4S0, where other oaees are odleoted. Where the law require* the sammons
to be aerved at least three daysbefore trial, and a trial ia had withia a shorter
time, without any appeanmoe by the defendant, the ooort does not acquire
jurisdiction, and any judgment rendered against him is absolutely void, and
may be questioned in any other proceeding, direct or collateral: Lec(ford v.
ITeber, 7 HL App. 91, citing the principal case. If a court had no jurisdic-
tion, aU proceedings undiar its judgment are absolutely void, and a redemp-
tion cannot give any validity thereto: Myivey t. Carpenter, 78 HL 683, also
citing the principal case.

Whatsvxb is StnrnonENT to Put Puboha«eb upon Inqctibt and lead to
knowledge is notice: OQmon ▼. WtMlow, 84 Am. Dec 652; Morriaon ▼. Kelli^,
74 Id. 160, note 178» where other cases are collected.

TiTLB OF PvBOHASKB AT Shbbiff's Sale Dspknds UPON What: See Cloud
▼. El Dorado Co,, 73 Am. Dec 626, note 628, where other oases are collected.
To recover as purchaser at sheriff's sale, the party must show a valid judg-
ment, execution, and sheriff's deed, and failing in either, he must be defeated:
Johnmm v. Bamtaek, 38 HL 114; Harmon t. Lamed, 68 Id. 169, both citing the
principal case.


until he has received the sheriff's deed, but has only a Uen or equity: Reynold*
w. Harru, 76 Am. Dec 469. A purchaser under judgment and execution ac-
quires no new estate, but only a lien, until the expiration of the period of re-
demption: Stephau v. IllkioU Jf. F. /. Co., 43 UL 331, citing the principal

FoBdBLK Bhtbt and Dbtainxb, whxn Tttlx mat bb Givbn in Evi-
DKNOS IN AonoN OF: See Beehr v. Cardwell, TJ Am. Dec 660, note 662, where
this subject is fully discussed. Titie cannot be tried in an action of forcible
detainer, but deeds may be introduced in evidence to show the extent of the
poasesnon: amUhY. Hoag,iliVL7&\\ see also note to CVt{f v. JBofimger, 6«
Ass. Dec 7S7.

Digitized by


298 CooLBY V. Scarlett. [Illinois,


[88 ILUKOM, 816.1

Ijr iLuiron^ Oral TUtimoiit m Chancbbt Suit mat bb Pbbsxevbd bi
ItaoiTALS or Dbcbxi, if oonnsel prefer that method, and an i^pellate
court win no more qneetion the statement! in nich reeitila than it will
those of a bill of exceptions in a common-law case. If a drcait jndge
inadvertently signs a decree containing erroneous redtilB of the proof,
he may correct it, even at a subsequent term.

Pbrsom hayino Ho Iiraxunrr m PBooKEDnf o hxsd hot bb Madb Pabtt


Oouten OF Onb Statb cahnot Anhul Dbbd of Lands or Avothxb Statb
dnly recorded therein, even though it appear that such deed was fraudu-
lently obtained. But if a court of equity in the former state has ac-
quired jurisdiction of the person of one who has by fraud obtained a
deed for land lying in another state and had it recorded there, it may
decree that he and his grantee, if the latter is not entitled to be pro-
tected as a 6on(i/<2e purchaser, shall release their claims acquired under
such fraudulently obtained deed; and if they refuse to do so they may
be attached for contempt and held in custody until they execute tiie de-
cree; and if in the mean time it be made to appear that they are seeking
to encumber the title by conveyances to third persons, that may be
treated as a contempt for which the court may attMh and punish them;
and if they go b^cnd the jurisdiction, the court cm appoint a special

commissioner to make the conveyance in their stead.

Appbal from the circtiit oourt of Kane County. The opin-
ion states the case.

B. F. Parks, for the appellant
C /. MettneVf for the appellee.

By Court, Lawrence, J. One Stephenson bad been negotiate
ing with Scarlett, the appellee, for the purchase of land belong-
ing to the latter, situated in the state of Michigan. He was
to give Scarlett in exchange a mortgage on certain lands in
Bureau County, in this state, and a deed from the appellant,
Cooley, to a tract of land in Iowa, which he represented Cooley
to hold in trust for him. Scarlett was to convey the Michigan
land to Cooley. Scarlett and Cooley both executed their
deeds, and these were left with one Johnson as a depositary,
to remain until Scarlett should be satisfied with the title of the
mortgaged lands, and then the deeds were to be delivered.
Scarlett was not satisfied with the title, and several times dur-
ing the month of August demanded back his deed fit>m John-
son, but failed to procure it. In the month of September,
Cooley procured the deed from the depositary, Johnson, for
the Michigan lands, under a pretense that he wished to get
from it a description of the lands. He promised to return it^

Digitized by


April, 1865.] Coolst v* Soablbtt. 299

but instead of doing so, he caused it to be recorded in the
state of Michigan, and conveyed the land to Bidder and Per*
rin, who also caused their deeds to be recorded. Scarlett then
filed his bill against Cooley, Bidder, and Perrin, and asked
and obtained a decree cancding these deeds. The defendants
below appealed.

The facts we have briefly recited are set out with much detail
In the decree. It is urged by the appellant's counsel that no
such proof was made on the hearing or appears elsewhere in
the record. But since the passage of the act allowing oral tes-
timony in chancery, it has been a settled practice, under re-
peated decisions of this court, to preserve the evidence by
recitals in the decree, if counsel prefer that method. We can
no more question its statements than we can those of a bill of
exceptions in a common-law case. If the circuit judge has
inadvertently signed a decree in any case containing erroneous
recitals of the proof, he may correct it, even at a subsequent
term, on his becoming satisfied that an error in this respect
has been committed.

It is also urged that Stephenson should have been made a
party. This was not necessary. Stephenson had no interest
in this proceeding as it stands on the face of the pleadings
and proofe. The object of the bill was, not to cancel a con-
tract with Stephenson, since it proceeds upon the ground that
no contract was ever made, but simply to procure the cancel-
lation of an instrument which Cooley had fraudulently got
into his possession, and under which he claimed title. It does
not appear that Stephenson claimed that the contract between,
himself and Scarlett had been completed, or that he had any
connection with the withdrawal of the deed by Cooley. On
the contrary, Stephenson seems to have taken back from Scar-
lett the note secured by the mortgage on the Bureau land.

We should have no hesitation in affirming the decree if we
could regard it, in its present form, as within the power of the
court to make. But we cannot. It purports to pronounce
null and void conveyances of land situated in the state of
Michigan, which conveyances have been duly recorded in the
recorder's office of that state. Now, whether these recorded
deeds are nullities, even under this fraud, must necessarily
depend upon the local laws of Michigan, which we cannot
assume to administer. The courts of Michigan may well claim
the exclusive right of deciding upon the recorded titles of their
own lands, and would be apt to pay but slight regard to thi«

Digitized by


300 CooLET V. Scarlett. [niinoiSi

decree. Suppose a citizen of the state of New York were to
bring an action of ejectment in this state against the occupant
of a piece of land, and to rebut the title shown by the defend-
ant, should produce a decree of a New York court pronouncing
some deed in the defendant's chain of title to be a nullity, and
rendered in a proceeding to which the defendant in the eject-
ment was not a party, would our courts pay any attention to
such a decree? Of what avail is a recorder's office if deeds,
duly reduced to record, can be annulled by a chancery proceed-
ing in another state, so that innocent purchasers cannot be
protected under them? And the object of this decree is to
totally annul the title, so as to cut off even remote and bona
fide purchasers. This cannot be done by a proceeding in this

The decree, however, may be remodeled so as to bring it
within the principles of chancery jurisdiction and still afford
some protection to the complainants. Cooley, Bidder, and
Perrin are all personally before the court. There is no at-
tempt to prove that Bidder and Perrin were purchasers for a
valuable consideration, and they do not even claim to be so in
their answers, which are sworn. Being, then, personally within
the jurisdiction of the court, it can compel them personally to
execute to Scarlett a release of all claim acquired through the
deed from him. If they refuse to do so, they can be attached
for contempt, blxA held in custody until they execute the de-
cree; and if, in tke mean time, it should be made to appear to
that court that they are seeking to encumber the title by con-
veyances to third persons, that also might be treated as a con-<
tempt, for which ihti circuit court could attach and punish
them. If they go beyond the jurisdiction, the court can ap-
point a special commissioner to make the conveyance in their

Decree reversed and cause remanded.


a FoBXioir Ooumtbt: JohtmmT. KSmbo, 75 Am. Deo. 7S1; aeo alao note to
Mo^nmay. Se^fnumr, 76 Id. 665; SimrgUv. Fay, 79 Id. 440; note ioNewkmy.
Brcnacm, 65 Id. 95. Title to lands ntoated in another state cannot be invali-
dated by a decision of an inferior court in Illinois, and whether the title to
soeh lands is a nullity or not muss depend upon the local laws of the state
where they are sitoated: (%/jm. Co. ▼. OcmMRcreJof ^oiO^ 6S DL 354^ citing
the principal case.

Ik lLiJNoia» Obal Tbsidcont cf Chavoibt Suits mat bb Prbsebvbd
BT Rbcitals tr DbgbxBi and the statements in the decree are no more sub-
ject to question than those in a bill of exoeptions would be in a common-law

Digitized by


April, 1865.] Ilunoib Central B. R. Co. v. Smtbsb. 301

OMe: WaOoer ▼. Ccarey, 53 SL 477; Walter v. AU, 83 Id. 231, both citmg th«
principal case. And where the decree states that proofs were heard, and then
inds the facts, it will be presumed that the eridenoe justified the finding, nn-
IssB the eridenoe i^peaxing in the leoord fails to prore the iMts found: Me-
hta§h V. Samiiden, 68 Id. 190^ also dtiqg the principal oaaa.

Illinois Gbntbal Bailboad Go. v. Smtsbb.

188 ILUMOKS, 854.J

QooM Plaosd lOB SmPMSNT DT Casl ow RAn.BOAP CoMPAinr Skaitdxho
OH Snm-TRAaKf nnder ezdnsiTe control of the oompany, with the assent
of the company, pass into the possess i on of the oompany, whether they
be placed in the car by its own employees or by other persons.

SiOHiNo ow Bill ov Ladino dobs not Transver PossiasiON ov
FisioHT to a common carrier^ bat is merely evidence that he has receiTed
the possession, and this fact may be shown by any other legitimate evi-

LiABiLrrT ow Commov Cabbue u Fhxd by AocoDmro FBorBsir to be
carried, and this acceptance is complete when the pr oper ty oomes into
his possession with his assent.

Railroad Compact mat, bt Sfbqial CoMTBAor, Limit im Common-law
LiABiLRT for loss foT injury to property placed in its possession for
transportation, being still liaUe, however, for gross negligence or willfnl
misfeasance. Bat it cannot restrict its liability by merely proving a
naage on its part in gi viog bills o( lading to notify shippers tiiat the oom-
pany woald not be liaUe for certain kinds of losses.

Assumpsit by Smyser & Co. against the Illinois Central Rail-
road Company to recover damages for injury to certain cotton
belonging to the plaintiffs while in the possession of the defend-
ant The cotton was i>artially consumed by fire, communi-
cated, as was supposed, by a spark firom a passing engine
belonging to the defendant. The cotton was, at the time of
the loss, on a car of the defendant, standing on a side-track,
where it had been loaded, but no receipt or bill of lading had
been given for it There was a verdict and judgment for the
plaintiffs, and the defendant appealed. The other fSeusts ap-
pear from the opinion.

McAUmUTj JeweUj /ocboiH <^*mI George O. OampbeUj tor the

John G. Rogertj for the appellees.

By Court, Walker, C. J. It is insisted in favor of a rever-
sal in this case that the cotton, at the time of its destruction,
was not in the possession of the railroad oompany, either as a
common carrier or for safe-keeping; and that the court below

Digitized by


802 lujNon Central R. R. Go. v. Smtbeb. [Illinois,

erred in rejecting the evidence of the usage of the company in
their business at Cairo. It appears that according to the
mode in which this company does business at Cairo, when
warehousemen have cotton to ship by rail, they apply to the
company for the requisite number of cars, and they are sent
on the side-track of the company to the warehouse, and the
shipper there loads the cotton upon the cars, makes out a
manifest, and leaves it with the agent of the company, who
has the bales counted, 'and if found to be correct, a bill of
lading is signed, and the company send a locomotive and re-
move the cars thus loaded and place them in the train destined
for the point to which the shipment is made.

The side-track and the cars belong to the company, and are
under their exclusive control. And there is no question that
the company placed this car at a point opposite the wharf-boat
on which the cotton was stored, for the express purpose of
having it transferred from the boat to the car, that they might
transport it to the point desired by the shipper. The company
had unquestionably the exclusive use and control of their road,
side-tracks, and freight-cars; no use could be made of them
?dthout the consent of the company. So long as a car remained
on their road or side-track it was under their control, and, neces-
sarily, in their possession. They had the right to permit their
cars to stand at the point at which this one was placed. The
company, at any moment, at least after the car was loaded,
had the unquestioned right to remove it to any other part of
their road, but the commission merchant had no such right,
even if he had possessed the means. He simply had the
right to load the cotton on the car.

The wharf-boat, on the contrary, with its ccmtents, was in
the possession of the commission men, and the cotton so con-
tinued until it was placed in the car. It then passed into the
possession of the company as effectually as if it had been
delivered in their warehouse. They substituted their car for
their warehouse, no doubt for the mutual convenience of all
parties. And this, too, with the assent of the company, to
promote their interest, in the prosecution of the business for
which it was created.

If this was a box-car, the company had the right, as Hoon
as the cotton was placed in it, to have closed and locked it.
Or if an open car, they had an equal right to have secured the
cotton, and any person interfering with it would have been a
trespasser, and the company could have recovered damages

Digitized by


April, 1865.] Illinois Central R. R. Co. t^. SifYSER. 808

for any injury thus perpetrated. No difTerence is perceived in
recdving freight on the platform of their depot and into their
cars at any place on their road or side-track; or whether it
is placed there by their own employees or by other persons, so
it is done with the assent of the company.

It is not the mere signing a bill of lading which transfers
the possession of freight to the company, but it is the evidence
that they haye received possession. Their possession may be
shown by any other legitimate evidence. The liability of the
common carrier is fixed by accepting the property to be trans-
ported. If, however, goods are placed on his cart, boat, or car,
without his knowledge or acceptance, or that of his agent, he
is not liable: Angell on Carriers, sec. 140. If the owner or
person having the custody of the goods to be shipped never
parts with their possession, or does not place them under the
control of the carrier, there is no bailment, and consequently
no liability incurred: Id. But in this case the company, by
their acts, accepted the trust. The cotton was not placed in
the car without their knowledge, but it was with their express
assent. Had the employees of Williamson, Haynes, <k Co.
placed the cotton on the platform of the depot, with the assent
of the company, to be transported, no one would doubt their
liability, and yet in principle no difference is perceived.

According to the current of modem decisions, it is compe-
tent for a common carrier, by rail, to limit his common-law
liability by express contract It was held in the case of
Hliiwis Central R. R. Co, v. Morrison j 19 111. 136, after a care-
ful review of the adjudged cases, that railroad companies
could restrict their liability by special agreement, they still
being held responsible for gross negligence or willful mis-
feasance. But in that case the rule was restricted to a special
contract, nor are we aware that any well-considered case has
carried it further. And we have no disposition to do so unless
compelled by authority. But this rule of law can have no
application to this case, because there is no pretense that there
was any special agreement restricting the liability of this
company. Their liability cannot be limited by showing that
it was the usage of the road to embrace in all bills of lading
for the shipment of ootton that the company should not be
liable for losses by fire. There was an offer to prove that
such had been the usage of the company, and that it was
known to shippers. If this had appeared it would not have
availed, as nothing but a special agreement coold have that

Digitized by


804 SoHNELL V. Cmr or CmoAOO. [Illmoifl,

effect: We$tem Trans. Co. y. NewhaU^ 24 IlL 466 [76 Am. Dea
760]. Even to pennit it to the extent announced in the case
referred to is a relaxation of the ancient common law, which
prevented any reetriction of the carrier's liability even by

But to merely show a loose usage for an indefinite period^
limited to a few persons in one particular locality to dbange
the carrier's duty, is not sanctioned by either the British or
American decisions.

The question of diligence is one of fSeust for determination by
the jury. And in this case it was fairly presented for their
consideration, and we think the evidence warranted the con-
clusion at which they arrived. Upon a careful examination
of this record, we are unable to perceive any error for which
the judgment should be reversed, and it must be afiSrmed.

When Lzabilitt ov Coiofoii Oabbdeb CQiaiBfOQB» iob CkwM oa Bao-
OAOE RiOEivsD by him for transportatioii: See Hichox v. I^aMgaiudt R, JL
Co., 83 Am. I>do. 143^ note 146, where other oMes are ooUected. Upon a
deliyery and aooeptanoe of gooda for tnuiaporttttioQ by a oomnum oarrier,
his oommon-law liability immediately attachea» and if th^ are loet by fire
while awaiting shipment^ the carrier is liable to the same extent as if the
goods were in transit^ onlen his liability has been modified, limited, mt re-
stricted with the consent of the shipper or owner of them: BaUrwd Co. ▼.
Barrett, 36 Ohio St. 452; citing the principal case.

CoioiON Oabbue mat Ldot his ComfON-LAw LiABniiTr sr Spboiai.
OoNTBAor: See Judmmy. Wutem B. JL Ccrp.^ 83 Am. Bee. 646, note 651,
where other oases are ooUected; Pemui^hnma B. M. Co.v. Sekwartmnbergerp

Ths PBoraiPAL OMB IB Pu r m i yuiHig D In Tokdo 0te.B^fOo,r. OiMn^ 81

SoHNBLL V. City of Ohioago.

[88 ILUHOIS, 8811

aw AsnaxmRAnom, under the Illinois act in force in Angost^ 1849, and
no extraoffdinafy circnmstances needed to be phown to authorize a special
term to be held for that porpose.


I8TBATOB9 it wiU be presumed that the probate ooort which appointed the
administrator had before it proof of the facts necessary to anthoriM it
to make sach appointment, and to gi^e it power to act in the case, al-
though on a direct appeal or writ of error from the probate proceeding it
woold be held irregnlar and set aside.
Whkrb Petition or ADKnusTKAToa iob Obdib to Sbll Lands Dmcbtbis
Thxm CORBierLT as certain lots in section 33, but the abstract mooomr

Digitized by


April, 1565.] ScHNELL V. CiTT OF CmcAoa 305

paajing the petitioai and the in^tntocy from iHdch the abetimet is re-
quired to be taken describe them as being in section 23^ and the order of
sale directs the lands in the petition to be sold, namely, lots, etc, in sec-
tion 23; the notioe of sale and the deed made to the porohaser describing
the lands oonrectly, it will be held in a ooUatscml proceeding inrdving
the title that the misdescription of the sectioa was a mere dnioal eiror,
not affMting the validity of the sale.
Wemmm ArazmnuTcnt Oim Nones that Hs will Aptlt at Curraiir
Tdm ov Coubt fob Obdbb to sell lands of the estate for the payment
of debts, he must ffle his petition at the term designated in the notice,
and if he does not file his petition nntil a term sabseqnent to that named
lnhisnotice,a]l the proceedings under it will be void. The presomption
i% on sndi notice, and a fiuhire to file the petition at the term specified,
that the application is abandoned. To charge the heirs or parties in
interest, it is necessary that the notioe shoold be renewed in all cases

Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 87 → online text (page 33 of 114)