Clark v. Wilson
Clark v. Wilson
Opinion of the Court
We have thoroughly examined the record in this ease, and carefully considered the printed arguments filed on behalf of the different parties, and have thereupon determined that the judgment of the Appellate Court shall be affirmed. The foregoing opinion is approved and adopted as a sufficiently accurate expression of our views upon the questions arising upon the record.
Our statute gives the form of an acknowledgment of deeds, which it declares shall be sufficient, and it requires the officer to subscribe his name to the certificate, (Rev. Stat. 1874, chap. 30, sec. 26, entitled “Conveyances,”) and the only safe rule is to require this in all cases of statutory acknowledgments. Marston v. Bradshaw, 18 Mich. 81, and same case in 100 Am. Dec. 152. See, also, Freeman’s note to Livingston v. Kettle, 41 Am. Dec. 173, under the head of “Signing and sealing by officer. ”
Under the facts of this case, even the answer of Abram Wilson, made under oath, pursuant to a prayer of the bill, could not be read in evidence against his co-defendant, Boozel. (Rust et al. v. Mansfield et al. 25 Ill. 336.) To allow his default to have an effect which his answer under oath cbuld not have, would be contrary to all principle. The decree pro confesso against him can affect no one else, because it is not alleged in the bill, that, in any view, he has a present interest in the property that can be affected by the decree. The theory of the bill is, that, in equity, the property is that of O. J. Wilson, while the answer of Boozel claims that it is his. Abram Wilson was a mere conduit through which the title passed.
The fact that the evidence as to the consideration of the $1000 note given by 0. J. Wilson to John T. Wilson was given orally before the trial court, is a material circumstance to be considered in a case like the present. The court can determine much, from the appearance and manner of the witness While testifying, as to his candor; and if John T. Wilson testified the truth, his note is bona fide, and he stands on an equal footing with other creditors.
The judgment is affirmed.
Judgment affirmed.
Mr. Justice Baker, having passed upon this case in the Appellate Court, took no part in its decision here.
Reference
- Full Case Name
- Danforth S. Clark v. Osman J. Wilson
- Cited By
- 5 cases
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- Syllabus
- 1. Fraudulent conveyance—debtor must appear to have had some interest in the property conveyed. Where the son of a debtor acquired the title to a lot from parties other than his father, the latter never having had possession, a creditor of the father, before he can have a quitclaim deed of the father to the son set aside as fraudulent, must show that the father was, at the time of making such deed, the owner of the lot, as otherwise there could be no fraud in his conveyance to his son by mere quitclaim deed. 2. AcknowiiEDg-mbnts of deeds—absence of signature of an officer. The record of a deed by a son and his wife to his father was offered in evidence to show title in the grantee. It appeared from the record that the deed purported to have been acknowledged before a notary public, and, while the notary’s seal was attached to the certificate of acknowledgment, the name of the notary was not attached to it: Held, that the deed was not properly acknowledged, so as to make the record evidence of its execution. 3. Conveyances—evidence to prove execution—admissions or declarations of a grantee. Where a son has a complete chain of title without deraigning through his father, and it is sought by the father’s creditors to prove a deed from him to the father, for the purpose of attacking the father’s subsequent deed to him, and a deed by the son to a third person, as fraudulent, the admissions and declarations of the father, made out of the hearing of such third person, and after he had obtained his deed, are not admissible or competent evidence to prove the existence of such a deed. Such admissions are incompetent to show the execution of the deed to the father, whether made after or before the deed from the father to the son. 4. Same—parol evidence—to show conveyances. Conveyance of land can not be shown by parol evidence, and the execution of a deed can not be proved by the admissions of persons not themselves shown to have been in privity with the title under which the grantee claims, nor can the execution of a deed be proved by showing the state of the accounts between the parties. 5. Pleading and evidence—in chancery. On bill by creditors to set aside a deed from the debtor to his son, and a deed from the latter to a purchaser, on the ground of their being in fraud of the rights of creditors, neither the answer of the debtor nor the default of his son, as admitting title against the purchaser, can be received as evidence of title in the debtor, when the purchaser fails to admit title in him at any time. Matters not admitted in the answer must be proved, the same as if expressly denied.