Dolton v. Cain
81 U.S. 472

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U.S. Supreme Court

Dolton v. Cain, 81 U.S. 14 Wall. 472 472 (1871)

Dolton v. Cain

81 U.S. (14 Wall.) 472

Syllabus

1. Under the limitation laws of Illinois which declare in substance

"that whoever has resided on a tract of land for seven successive years prior to the commencement of an action of ejectment, having a connected title in law or equity deducible of record from the state or the United States, can plead the possession in bar of the suit,"

it is not necessary that the entire title of the defendant be evidenced by acts of record. If the source or foundation of the title is of record, it is available to every person claiming a legal title who can connect himself with it, by such evidence as applies to the nature of the right set up.

2. If a party to a contract does all that it can be reasonably expected that he will do, he will be considered in equity as having performed his part of the contract so far as to come within the limitation laws above mentioned, as, ex gr., if a party bound to pay money to an agent of his creditor resident beyond seas, offer to pay it to one who was the agent of that creditor, and who declines to receive it only because he had heard rumors

Page 81 U. S. 473

of the principal's death, and had always been and still is ready to pay it to anyone having authority to call for it.

3. Where A. in A.D. 1823 conveys to B., in trust for C., habendum "to the said party of the second part his heirs and assigns," and B. dies in 1845, and C. conveys in 1848, equity would find a way to protect C.'s grantees against a deed made by B.'s heirs in 1864, supposing such a deed made without undue influence, a supposition hard to make.

4. Where it power of attorney is made by husband and wife, French people resident in France, to sell lands in Illinois, the power, a long French instrument with the usual verbiage of the style de notaire, speaking of the lands as lands which "Mr. and Madame," &c., own there -- there being evidence that the husband owned land there, but none that the husband and wife did, the presumption is that the joinder of the wife was made to alienate some supposed right of dower, and not to describe lands owned by the wife and husband jointly, instead of by the husband alone; this at least in favor of a bona fide purchaser, long in possession.

5. A mistake in the baptismal name of an obligor to a bond executed by his attorney duly authorized to execute a bond in his right name does not vitiate the bond, the error being shown to be purely accidental.

Certain statutes of limitation in Illinois, [Footnote 1] declare in substance that whoever has resided on a tract of land for a term of seven successive years, prior to the commencement of an action of ejectment, "having a connected title in law or equity deducible of record from the state or the United States," can plead the possession in bar of suit to dispossess him.

These provisions of limitation being in force, Dolton sued Cain, A.D. 1865, in ejectment, to recover a piece of land in the state just named.

The plaintiff showed as title,

1st. A patent, A.D. 1818, from the United States to one Stephenson for the land.

2d. A deed, A.D. 1820, from Stephenson to one McGuire.

3d. A deed, A.D. 1823, from McGuire "to Auguste Thiriat, in trust for Rene Marie Ferdinand Jacquemart" (a resident of France), the habendum clause being thus:

"To have and to hold the said premises with the appurtenances

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unto the said party of the second part, and his heirs and assigns forever."

4th. The death of Thiriat in 1845, and of Jacquemart in 1848; no more particular dates being shown.

5th. Conveyance, A.D. 1864, by the heirs of both Thiriat and Jacquemart, to Dolton (the plaintiff).

Title in Jacquemart having been, as above stated, shown by the plaintiff, the defendant relied on:

1st. August 10, 1847, a power of attorney, "each one for themselves," from Rene Marie Ferdinand Jacquemart and wife, to F. R. Tillon and W. L. Cutting, with power of substitution, authorizing them to sell any lands in Illinois "which Mr. and Madame Jacquemart at present own; and in which the said constituents have interests, of any kind soever to be protected," and "to sign the contracts of sale in the respective names of the constituents."

2d. September 20, 1847. A substitution by Tillon and Cutting of one Cockle, to their power to sell &c.

3d. Proof that on the 29th July, 1848, Cockle as attorney for Jacquemart and wife, sold the land to Cain, the defendant, for $300; of which $100 was to be paid down, and the residue secured by three notes, one for $68, at one year, and two for $66 at two and three years respectively; that the $100 was paid and the three notes given; that contemporaneous with the sale, he, Cockle, professing to act as attorney of Jean Ferdinand Jacquemart (the name of Jean instead of Rene Marie, having as Cockle himself testified, been signed "by inadvertence and mistake," and "the intention having been to execute the instrument in Jacquemart's true name,") executed and gave to Cain a bond for $600, reciting the sale and the terms of it, and conditioned that if Cain paid the notes on the days specified for their payment, and Jacquemart should upon such full payment of the purchase money execute and deliver to Cain a warranty deed with the usual covenants, then the bond should be void; that the sale was reported within a month to Tillon and Cutting, who approved it; that the first and second notes were paid as they came

Page 81 U. S. 475

due, and with the $100 cash were devoted by Cockle to the paying of taxes on other lands of Jacquemart; that Cain offered payment of the third note at its maturity, but that Cockle refused to receive it, replying to Cain's offer to pay it, that it was rumored that Jacquemart was dead; that Cain had always been ready and willing to pay the note which from the cause mentioned was remaining unpaid, but that he did not know who was entitled to receive the money.

4th. Proof that the defendant took possession of the land very soon after his purchase, and had occupied it continuously by himself or his tenants from that time till the time of the suit brought (A.D. 1865), and for seventeen years had paid taxes on it.

On the facts thus proved, the court below decided that the possession of Cain was protected by the limitation laws of Illinois, already in substance stated, and gave judgment accordingly. From this judgment the plaintiff sued out the present writ of error. The sole question in the case was, whether the defendant, Cain, was within the protection of these laws.

Page 81 U. S. 476

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