St. Louis, Jacksonville and Chicago Railroad Company v. Mathers.

large. A court of equity will not enforce a contract resting upon such official delinquency, or even tending to produce it."

Appellee stands in pari delicto with the board of directors, so far as this agreement or condition is concerned. He voluntarily, according to his own showing, contracted for this "breach of trust toward the stockholders of the railroad company, and breach of duty to the public at large." Their loss was to be his gain. He was willing, at whatever expense it might be to others, to purchase a monopoly whereby to enrich himself, and having failed to accomplish his purpose, now asks a court of equity to reinstate him in the condition he was before entering into this unlawful combination.

The case presents no facts or circumstances meriting the consideration of a court of equity.

We perceive, however, no end to be subserved by the cross-bill. By the consolidation the appellant occupies precisely the same relation to this property that the Tonica and Petersburg Railroad Company did before the consolidation. There is no ambiguity in the language employed to express the trust, and no disposition is shown on the part of the trustees to refuse to execute it. It would undoubtedly have been competent either for the bondholders or the railroad company to have required the trustees to sell the property and apply the proceeds to the payment of the debts remaining due after the 1st of November, 1861, which are designated in the declaration of trust; but it was equally within their power to waive this and look to some other source for the necessary means to make such payment. This was done. No such indebtedness as is therein mentioned is now in existence. No express authority is given to apply the proceeds arising from the sale of the property to reimburse others for the payment of the debts therein indicated, and no reason is apparent to us why we should imply authority for that purpose. We are, therefore, of opinion that the appellant is not entitled to be reimbursed for the payment it has made from this source; and that it is the duty of the trustees to apply the proceeds to arise from the sale of this property "to the erection or improvement of station-houses, or other edifice or edifices, of the appellant, within the town of Ashland, as directed by the declaration of trust; but that this should be done under the direction of the appellant, through its proper officers.

The decree of the court below is reversed.

Decree reversed.

Merritt v. Yates.

MERRITT V. Yates.

(71 Ill. 686.),

certificate of acknowledgment — blanks in — amendment of.

The certificate of acknowledgment to a deed executed by a husband and wife
certifie in the usual form, that the grantors, naming them, personally ap
peared and acknowledged the deed and then continued: "And the said
wife of said
having been by me examined, separate and
apart," etc., acknowledged it, following the prescribed form. Held, (1) that
the certificate was insufficient, and that the deed could not be read in evi-
dence ;
and (2) that the certifying officer could not afterward amend the cer-
tificate.

ERE
Ε

RROR to the Circuit Court of Champaign county. The original report gives no information as to the nature of the action.

Cunningham & Webber, for plaintiff in error.

E. L. Sweet, for defendant in error.

WALKER, J. Plaintiff below having introduced evidence to maintain her title, defendant introduced and read in evidence a deed from her to him for the same premises, to the reading of which plaintiff excepted, on the ground that it was insufficiently acknowledged to pass plaintiff's title, she being a married woman, and the owner of the premises when the deed was executed. The objection is urged in this court as a ground for reversal. This is the certificate of acknowledgment to which objection is made:

"I, Jackson Lewis, a justice of the peace in and for said county, in the State aforesaid, do hereby certify that Susan Merritt and James Merritt, her husband, personally known to me as the same persons whose names are subscribed to the annexed deed, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument in writing, as their free and voluntary act, for the uses and purposes therein set forth. 66 And the said wife of the said -, having been by me examined, separate and apart, and out of the hearing of her husband, and the contents and meaning of the said instrument of writing having been by me fully made known and explained to her, and she also by me being fully informed of her rights under the homestead laws of this State, acknowledged that she had freely and

2

my hand and

Merritt v. Yates.

voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also all her rights and advantages under and by virtue of all laws of this State relating to the exemption of homesteads, without compulsion of her said husband, and that she do not wish to retract the same. Given under seal, this 7th day of December, A. D. 18—.” According to the authority of the cases of Tully v. Davis, 30 Ill. 103; Gove v. Cather, 23 id. 634; and Owen v. Robbins, 19 id. 545, this acknowledgment was insufficient to pass plaintiff's title. The last paragraph of the certificate does not state who, or whose wife, was made acquainted with the contents of the deed and privily acknowledged the same. Nor does it state who was the husband. But it is urged that mere grammatical inaccuracy should not vitiate. That is no doubt true; no matter how ungrammatical the language, so that it can be clearly seen what is intended to be expressed. But that must appear without mere inference or conjecture. Had the justice said the parties appeared and acknowledged the deed, we might conjecture that it was the grantor or the grantee, but the acknowledgment would not so state, either grammatically or ungrammatically. In such a case it might be conjectured that the officer was well qualified to discharge this and every other duty, and that he was careful and painstaking in the discharge of his duty; but even if that were proved, it would not make such a certificate as is required by the statute, and we presume that no one would contend that such an acknowledgment would be sufficient. On principle and in fact, in what consists the difference, if substance is considered?

Whilst many of the forms and ceremonies anciently required in alienations have been dispensed with, still we have not yet reached the point where all substance may be omitted in instruments transferring title to real estate. As land has become more a matter of commerce, the forms of conveyances have been simplified and cheapened, but still reasonable certainty of description of persons and property to be affected must appear. It must be certain that the persons executing acknowledged the deed, and that the femme covert who joins in the deed acknowledged its execution, and not that she executed the deed, and some other femme covert had it explained to her, and acknowledged that she relinquished her dower or conveyed her estate.

It is also contended that the subsequent certificate, written by the VOL. XXII.-17

Merritt v. Yates.

justice of the peace on the deed some years after the first was made, cured the defective certificate, although the deed was not reacknowledged. We have been referred to no precedent for such action and we would confidently expect that none could be found. Anciently, such acknowledgments could only be taken in open court, and entered on the records of the court in proceedings tedious, expensive and incumbered with much form. It was at that time regarded of too much moment to be left to the loose and uncertain action of unskillful persons, and the title to property held by married women was guarded with such care as only to permit it to be divested by the judgment of a court of record. Justices of the peace, and the other enumerated officers, have, however, under our laws, been intrusted with the power to take and certify such acknowledgments, and when in conformity with the statute, the act is clothed with the same force and effect that was anciently produced by the judgment of a court of record.

It is said that courts of record permit amendments to their records sheriffs to amend their returns, and compel officers by mandamus to perform legal duties. There is no rule more rigidly enforced, than that the opposite party must have notice in all cases of amendments of records in matters of substance, and the amendment here is of the very essence of the conveyance itself. And it is true that the court, in a proper case, and on notice to the opposite party, will permit the sheriff to amend his return. O'Conner v. Wilson, 57 Ill. 226. But we are aware of no statute or common law practice which authorizes or in any manner sanctions the right of justices of the peace to amend their records after they have once been made. To allow a justice to make alterations and changes in his record, at will and according to his whim, would be fraught with evil and wrong that would be oppressive. Such a power has not been intrusted to the higher courts, and cannot be exercised by these inferior jurisdictions.

The case supposed of compelling a justice of the peace, who refuses to make any certificate of an acknowledgment by mandamus, is not parallel to this case. Here, the justice of the peace, at the time, granted his certificate, and it imports verity. We do not concede that the Circuit Court has power to compel a justice of the peace by mandamus to correct a judgment when entered by mistake, for too large or too small a sum, or to correct a certificate of acknowledgment in which a mistake has occurred. Such a pro

King v. Fleming.

cess cannot be used to correct judgments of inferior courts, and the acknowledgment and certificate take the place of the judgment of former times and import verity, and cannot be contradicted any more than can a judgment.

It may be that the carelessness of the justice has produced hardship and wrong, but that is not a ground for violating rules that have governed the purchase and sale of real estate from the organization of our State. The defendant must be left to his action against the justice, or on the covenants in the deed, or any other remedy he may have in law or in equity.

The deed was improperly read in evidence, aud the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

KING V. FLEMING.

(73 Ill. 21.)

Sunday-note executed on — delivery.

promissory note was signed on Sunday, but not delivered until Monday Held valid.

A

CTION on a promissory note. The opinion states the case.

Appeal from the Circuit Court of Vermilion county; the Hon.

JAMES STEELE, Judge, presiding.

E. S. Terry, for appellant.

William H. Mallory, for appellee.

SCOTT, J. This action was brought on a promissory note made in the State of Indiana. The defense urged is, it was executed on Sunday, and by the laws of that State it is made unlawful te engage "in common labor " or "usual avocations, works of charity or necessity only excepted." Hence it is insisted the note is void. The testimony shows the note was written sometime during the week prior to the day it bears date. It was, in fact, signed by appellant on Sunday, but not delivered to appellee until Monday.