{ "id": 2417104, "name": "Margaret Foster v. Henry C. Latham", "name_abbreviation": "Foster v. Latham", "decision_date": "1886-08-26", "docket_number": "", "first_page": "165", "last_page": "169", "citations": [ { "type": "official", "cite": "21 Ill. App. 165" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "95 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2722193 ], "opinion_index": -1, "case_paths": [ "/ill/95/0493-01" ] }, { "cite": "62 Ill. 523", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607507 ], "opinion_index": -1, "case_paths": [ "/ill/62/0523-01" ] }, { "cite": "101 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2817920 ], "opinion_index": -1, "case_paths": [ "/ill/101/0011-01" ] }, { "cite": "42 Ill. 514", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5294813 ], "pin_cites": [ { "page": "519" } ], "opinion_index": -1, "case_paths": [ "/ill/42/0514-01" ] }, { "cite": "88 Ill. 378", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5337264 ], "opinion_index": -1, "case_paths": [ "/ill/88/0378-01" ] }, { "cite": "89 Ill. 512", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 826293 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/89/0512-01" ] }, { "cite": "100 Ill. 385", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2823888 ], "opinion_index": -1, "case_paths": [ "/ill/100/0385-01" ] }, { "cite": "73 Ill. 337", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317262 ], "opinion_index": -1, "case_paths": [ "/ill/73/0337-01" ] }, { "cite": "69 Ill. 666", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2634216 ], "weight": 4, "opinion_index": -1, "case_paths": [ "/ill/69/0666-01" ] }, { "cite": "68 Ill. 426", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2630171 ], "opinion_index": -1, "case_paths": [ "/ill/68/0426-01" ] }, { "cite": "65 Ill. 505", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617865 ], "opinion_index": -1, "case_paths": [ "/ill/65/0505-01" ] }, { "cite": "39 Ill. 91", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5258506 ], "opinion_index": -1, "case_paths": [ "/ill/39/0091-01" ] }, { "cite": "77 Ill. 426", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821808 ], "opinion_index": -1, "case_paths": [ "/ill/77/0426-01" ] }, { "cite": "6 Dana, 172", "category": "reporters:state", "reporter": "Dana", "opinion_index": -1 }, { "cite": "21 Ohio St. 547", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 885722 ], "opinion_index": -1, "case_paths": [ "/ohio-st/21/0547-01" ] }, { "cite": "53 Miss. 119", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1670015 ], "opinion_index": -1, "case_paths": [ "/miss/53/0119-01" ] }, { "cite": "36 Ill. 161", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216997 ], "opinion_index": -1, "case_paths": [ "/ill/36/0161-01" ] }, { "cite": "95 Ill. 513", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "3 Gil. 38", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": 0 }, { "cite": "100 Ill. 385", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2823888 ], "opinion_index": 0, "case_paths": [ "/ill/100/0385-01" ] }, { "cite": "65 Ill. 505", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617865 ], "opinion_index": 0, "case_paths": [ "/ill/65/0505-01" ] } ], "analysis": { "cardinality": 458, "char_count": 7289, "ocr_confidence": 0.533, "pagerank": { "raw": 3.123590321169922e-07, "percentile": 0.8607918840055926 }, "sha256": "4b765f44e93eba5877e0247590b337ebf34014a5bbcc51c268804350f6544151", "simhash": "1:8e384cb812f4c5ea", "word_count": 1291 }, "last_updated": "2023-07-14T19:33:21.717522+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Margaret Foster v. Henry C. Latham." ], "opinions": [ { "text": "Congee, J.\nThis was a bill filed by Latham to foreclose a trust deed which is claimed in the bill to have been executed by plaintiff in error and her husband, Henry Foster, to defendant in error, as trustee, to secure a series of notes executed by said Henry Foster, payable to himself and afterward indorsed to Latham. \u25a0 Latham furnished the money for which the notes were given and it was used by Foster and his wife in discharging a prior incumbrance upon the same property, upon which the deed of trust in suit was given. Plaintiff in error answers, denying the execution or acknowledgment upon her part of the trust deed.\nThe evidence upon this point is the certificate of acknowledgment of John D. Keedy, a Justice of the Peace, certifying in the usual form to the execution of said deed of trust by plaintiff in error and her husband, offered by defendant in error, and the testimony alone of plaintiff in error, offered in her own behalf, that she never executed or acknowledged the said deed, of trust.\nWe had supposed it-was settled beyond controversy by the Supreme Court of this State that \u201cin the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer\u2019s certificate of the acknowledgment in proper form must prevail over the unsupported testimony of the party grantor that the same was false and forged.\u201d Lickmon v. Harding, 65 Ill. 505; Fitzgerald v. Fitzgerald, 100 Ill. 385.\nThe certificate of acknowledgment is as follows :\n\u201c State of Illinois, Sangamon County.\nI, John D. Keedy, Justice, of the Peace in said county, do hereby certify that Henry Foster and Margaret Foster, his wife, personally known to me to be the same persons whose names subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead and dower.\nGiven under my hand and notarial seal this 20th day of\nJuly, A. D. 1878.\n[seal.]- John D. KeedY,\nJustice of the Peace.\u201d\nAnd it is insisted that this is the certificate of a notary, and not a good certificate because there is no notary\u2019s seal attached. There is no force in the objection. The use of the word \u201c notarial\u201d is mere surplusage, and does not invalidate the certificate.\nThe next objection taken is that Latham could not be a trustee and cestui que trust by the same instrument.\nWe do not think this objection is'well taken. In Longwith v. Butler, 3 Gil. 38, the court quotes with approval the following language of Lord Eldon: \u201c Here the mortgagee is himself made the trustee. It would haye been more prudent for him not to have taken upon himself that character. But it is too much to say that if one party has so much confidence in the other as to accede to such an arrangement, this court is, for that reason, to impeach the transaction.\u201d Justice Koerner proceeds to hold that a mortgagee under a mortgage containing a clause to sell, may sell the mortgaged premises and convey a good title to the purchaser.\nIn the case of Darst v. Bates et al., 95 Ill. 513, the court say: \u201c Indeed, it is quite common to make the holders of the notes or their assignees trustees in mortgages with powers of sa^e, and this has repeatedly received the approval of this court.\u201d\nHere it is not sought by the trustee to avail himself of the power contained in the deed to sell, but he is asking a court of equity to take charge of the property and order it sold in the usual way.\nThe decree of the Circuit Court was in our opinion right, and will be affirmed.\nAffirmed.", "type": "majority", "author": "Congee, J." } ], "attorneys": [ "Messrs. Orendorff & Patton, for plaintiff in error.", "Messrs. Matheny & Matheny, for defendant in error." ], "corrections": "", "head_matter": "Margaret Foster v. Henry C. Latham.\nCertificate of Acknowledgment \u2014 How far Conclusive \u2014 Surplusage\u2014 Holder of Notes Secured by Trust Deed as Trustee.\n1. In the absence o\u00a3 proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, his certificate in proper form must prevail over the unsupported testimony of the grantor that the same is false and forged.\n2. The use of the word \u201c notarial \u201d before the word \u201c seal,\" in a certificate of acknowledgment of a Justice of the Peace, is surplusage, and does not invalidate the certificate.\n3. The holder of notes secured by a trust deed may be the trustee therein.\n[Opinion filed August 26, 1886.]\nIn error to the Circuit Court of Sangamon County; the, Hon. J. J\". Phillipps, Judge, presiding.\nMessrs. Orendorff & Patton, for plaintiff in error.\nThe evidence does not warrant the master in chancery in finding that Margaret Foster ever executed the trust deed in question to Henry C. Latham.\nIn proof that she did, complainant relies solely upon the recitals of the notary public, John D. Keedy. There is no proof that he was at the time such an officer. There is no seal of any such officer attached. Surely such a recital, unauthenticated by a seal, can not prove the execution of said instrument or deed. Margaret Foster, not being proven to have ever waived her homestead and dower right, ought not to have had her rights foreclosed under this trust deed. Holbrook v. Nichol, 36 Ill. 161.\nA trustee is agent of both cestui que trust and beneficiary. 2 Perry on Trusts, 156; Clarke v. Wilson, 53 Miss. 119; Ashuelot R. R. Co. v. Elliott, 57 K. H. 397; McGovern v.. Knox, 21 Ohio St. 547; Jones on Mortgages, Secs. 1770, 1771.\nHe can not acquire interests hostile to the interests of the cestui que trust. Lee v. Fox, 6 Dana, 172; Chapin v. Weed, 1 Clark, 464; G., C. & S. R. R. Co. v. Kelly, 77 Ill. 426.\nA trustee in a deed of trust for security is subject to the same rules that govern all trustees. Perry on Trusts, Sec. 602.\nMessrs. Matheny & Matheny, for defendant in error.\nThe word \u201c notarial \u201d is surplusage, and surplusage in an acknowledgment otherwise perfect will not vitiate. Stuart v. Dutton, 39 Ill. 91.\nA certificate of acknowledgment is stronger as evidence than the denial of the grantor. Lickmon v. Harding, 65 Ill. 505 ; Canal & Dock Co. v. Russell, 68 Ill. 426 ; Kerr v. Russell, 69 Ill. 666; Russell v. Baptist Theo. Union, 73 Ill. 337; Fitzgerald v. Fitzgerald, 100 Ill. 385.\nA certificate of acknowledgment is stronger even than the denial of the grantor with proof that the deed is not in his. handwriting. Kerr v. Russell, 69 Ill. 666; Blackman v. Hawks, 89 Ill. 512; Tunison v. Chamblin, 88 Ill. 378.\nA certificate of acknowledgment is a record and imports verity. Kerr v. Russell, 69 Ill. 666; Blackman v. Hawks, 89 Ill. 512.\nIt seems to be held in the following cases that a certificate of acknowledgment can only be impeached by showing fraud or collusion between the party.and the officer, and that simple negative of the facts therein stated will not avail. Graham v. Anderson, 42 Ill. 514, 519; Kerr v. Russell, 69 Ill. 666 ; Strauch v. Hathaway, 101 Ill. 11; Monroe v. Poorman, 62 Ill. 523.\nThere is no such an inconsistency between the position of the defendant in error as holder of the notes on the one hand, and as trustee on the other hand, that the courts will refuse him relief.\nHad the loan originally been made for a third party, it would have been lawful for Latham to purchase the notes secured by this deed. Darst v. Bates, 95 Ill. 493." }, "file_name": "0165-01", "first_page_order": 161, "last_page_order": 165 }