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McCool v. SMITH.

December 1, 1861


Writ of error to the Circuit Court of the United States for the northern district of Illinois. Hamilton McCool brought ejectment in the Circuit Court against Spencer Smith for the northeast quarter of section eleven, in township 10 north, of range 1 west, of the fourth principal meridian. The defendant pleaded not guilty, and a jury being called, found the following special verdict: 'That the land mentioned in the said declaration was, on the 7th day of June, 1818, duly granted by the United States to Alonzo Redman, for his military services in the late war between the United States and Great Britain; that said Redman was the illegitimate son of Polly Norris; that said Polly Norris had three other illegitimate children, named Eleanor Fogg, Joseph Melcher, and Sophia Norton; that Eleanor Fogg died without issue in the year 1824; that Joseph Melcher died without issue in the year 1814; that Alonzo Redman died without issue in the year 1825; that Polly Norris died without any other issue than as above stated, in the year 1837; that Sophia Norton married Reuben Rand in the year 1816; that Reuben Rand died in June, 1853; that Sophia Rand, on the 23d day of June, 1854, by her quit claim deed of that date july executed, conveyed said land to one Levi F. Stevens; that said Stevens, on the 21st day of April, 1855, by his quit claim deed of that date, duly conveyed said land to Spencer Smith, the plaintiff. 'That the General Assembly of the State of Illinois passed an act, entitled 'An act to amend an act concerning the descent of real property in this State, approved February 12, 1853,' which act was approved by the Governor on the 16th day of February, 1857, which act is in the words and figures following, viz: "SECTION 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly, That in all cases where any person shall have died, leaving any real property, before the passage of the act to which this is an amendment, which, by the provisions of the act to which this is an amendment, would have descended to any illegitimate child or children, such child or children shall be deemed and adjudged to be the owner of such real property, the same as if such act had been in force at the time of such death, unless such property shall have been proceeded against, and the title thereto vested in the State, or other persons, under the law of this State concerning escheats. "SECTION 2. In all such cases, hereinbefore specified, where any such illegitimate child or children shall have sold and conveyed such real property by deed duly executed, or where the same would have descended by the provisions of the act to which this is an amendment, and shall have been conveyed by deed by the person to whom the same would have descended, then such conveyances shall vest the same title thereto in the grantee as by this act is vested in such illegitimate child, from the date of such deed, and in all actions and courts such grantee shall be deemed to be the owner of such real property from the time of the date of the conveyance. "SECTION 3. This act shall be in force from and after its passage.' 'That said lands have never been proceeded against, and the title thereto vested in the State, or other persons, under the law of this State concerning escheats. 'We further find, that John Brown, collector of taxes, in and for the county of Warren, and State of Illinois, did, on the 25th day of May, 1840, sell said land to Isaac Murphy, for the taxes due to the State and county aforesaid, upon said land, for the year 1839, and that he did, on the 9th day of September, 1843, in pursuance of said sale by deed of that date, convey said land to the said Murphy; that said collector, in making such sale and conveyance, did not comply with the law authorizing the sale of lands for taxes, and that said deed was for that reason invalid as a conveyance of the legal title. That said Murphy claiming said land in good faith, under said deed, improved, occupied, and cultivated the same, and paid all the taxes assessed thereon, for and during the years 1843, 1844, 1845, and 1846. That said Murphy, on the 7th day of April, 1847, by his deed of that date, conveyed the said land to Hamilton J. McCool, the defendant, who immediately thereafter took possession thereof, and has been in the actual possession thereof ever since, claiming the same in good faith, under said conveyances, and that he has paid all the taxes assessed upon said land for and during the years 1847, 1848, 1849, 1850, 1851, 1852, 1853, 1854, 1855, and 1856. That the taxes so paid to the said State and county, by the said Murphy and McCool, amount to the sum of one hundred and nine dollars. If from these facts the court is of the opinion that the plaintiff is entitled to recover, &c., then we find for the plaintiff, and that said plaintiff is the owner of the land, in fee simple, and assess his damages at one cent; otherwise, we find for the defendant.' Upon this verdict the Circuit Court gave judgment for the plaintiff, and the defendant took his writ of error.

The opinion of the court was delivered by: Mr. Justice Swayne.

Mr. Browning, of Illinois, for plaintiff in error. Redman being an illegitimate child, his mother could not take under the ordinance of 1787, which speaks only of children, descendants, parents, next of kin, &c. When words denoting kindred are used, either in laws or private instruments, without other additions, they include none but legitimate kindred. 2 Kent's Com., 212-13; 4 Kent's Com., 413-14; 3 Cruise Dig. Tit., 29, ch. 2, sec. 8, and note; 2 Domat., p. 26, Art. 2455; p. 49, Art. 2497 and 8; p. 88, Art. 2571; p. 211, Art. 2861; p. 280, Art. 3029; p. 283, Art. 3036; p. 178, Articles 2793 and 4; Illinois Stat. of Wills, sections 46, 47, and 53; Bayley vs. Mollard, (1 Russel & Mylne, 575;) S. C. 4 Cond. Eng. Chancery R., 565; Wilkinson vs. Adams, (1 Ves. & Bea., 422;) Swaine vs. Kennedy, (1 Ves. & Bea., 469;) Beachcroft vs. Beachcroft, (1 Madd., 234;) Sherman vs. Angel, (1 Bailey Eq. R., 351;) Collins vs. Hoxie, (9 Paige, 88;) Durant vs. Friend, (11 Eng. Law and Eq. R., 2;) Owen vs. Bryant, (13 Eng. Law and Eq. R., 217.)

The Illinois statute of 1829 provided, not that bastards should inherit from each other, or that their mother should inherit from them, but only that they should inherit from their mother. At any rate it does not embrace this case, for Redman died four years before it was passed.

The act of 1853 did provide, that upon the death of an illegitimate person leaving no husband, wife, or children, his or her estate should go to the mother; and if there was no mother, then to the mother's next of kin. But this act was prospective, and did not meet a case like this, where the decedent had died long before.

It was after the commencement of this suit that the plaintiff procured the act of 1857 to be passed, which is set forth in the special verdict, and which declares that the act of 1853 shall relate back to the cases of illegitimate persons who died before its passage. As a law which impairs existing rights, its validity cannot be sustained. Gaines et al. vs. Buford, (1 Dana, 499;) Holden vs. James, (11 Mass., 404;) Hoke vs. Henderson, (4 Dev., 7;) Walley's Heirs vs. Kennedy, (2 Yerg., 554;) Bank vs. Cooper's Securities, (2 Yerg., 600;) Jones vs. Perry, (10 Yerg., 69;) Picquet's Appeal, (5 Pick., 65;) Lewis et al. vs. Webb, (3 Greenl., 326.) Was it a legislative grant of public land by the State? The title was not vested in the State by a judgment of escheat, and therefore the grantee could take nothing, certainly nothing more than the inchoate right of the State. Ill. St. of Esch., Rev. Code of 1845, p. 225; 3 Blackstone Com., 259; Fairfax's Devisee vs. Hunter's Lessee, (7 Cranch, 625-6;) 2 Curtis, 690-1; Craig vs. Bradford, (3 Wheat., 599;) S. C. 4 Curtis, 308; 3 Com. Dig., Tit. Escheat, page 598, bottom paging; Den vs. Simpson, (Cam. & Nor., 192;) Marshall vs. Loveless, (Cam. & Nor., 233;) McCrury vs. Allender, (2 Har. & McHen., 409;) Doe vs. Horniblea, (2 Hayw., 37.)

If a proceeding had been instituted against the land as escheated, the present defendant would have been made a party, and his defence would have been unanswerable. He had bought the land from the State at a tax sale, paid for it, and been in possession fourteen years. But the grant was not to the plaintiff. If it vested title in anybody, it was either in Sophia Rand, who would have inherited under the act of 1853, or else in her grantee, Levi F. Stephens. True, Stephens attempted to convey to the plaintiff, but he had no title, and as his deed was merely a quit claim, his subsequently acquired title did not inure to the benefit of the plaintiff. Jac. Law Dict. Grant Dellany vs. Burrett, (4 Grl., 493;) Funk vs. Dart, (14 Ill., 307;) Phelps vs. Kellog, (15 Ill., 135.)

Even admitting that the act of 1857 was valid, conceding that it could operate retrospectively, and granting that it vested a title in the plaintiff himself, still he could not recover in this action, because it was commenced before he acquired his title. Such is the rule of the common law, and the ejectment statute of Illinois is emphatic and clear to the same effect. Section 3 provides that no person shall recover in ejectment unless he has title at the time of commencing the action.

Besides all this, the defendant was completely protected by the statute of limitations, which declares that seven years' possession of land, with payment of taxes, shall entitle the occupant to be adjudged the legal owner to the extent of his proper title.

Mr. Kellogg, of Illinois, for defendant in error, argued that the mother of Redfield was his next of kin within the meaning of the law of descents, though the son was illegitimate; that his illegitimate sister could inherit, through her mother; and that the act of 1857 was constitutional.

1. The subtleties and refinements of the common law are not adopted in Illinois. In Hays vs. Thomas, (Breese, 136,) the Supreme Court of that State held that the civil law mode of ascertaining who are next of kin ought to be adopted in construing our statute; and therefore the mother is to be regarded as next of kin to her son. This is conclusive.

2. An illegitimate child may inherit land from the mother. The Illinois statute of descents declares, as its first proposition, that estates of persons dying intestate shall descend to his or her children and their descendants in equal parts.

That at common law, the word child, when used in statutes of this character, was limited to one born in lawful wedlock, is undeniable. But does the English law on this subject prevail in Illinois? No. From the earliest history of that State the policy of her legislation has been to change the English law. The statute of Virginia, passed in 1787, made bastards capable of inheriting from their mother, and transmitting inheritances on her part. This positive enactment, directly contravening the common law, became and was the law of Illinois until 1845, when the Legislature of the State expressly adopted the Virginia statute, by providing that the children of a single woman should not be excluded from taking her property by inheritance on account of their illegitimacy. Following this act of 1845, and amendatory of it, was the act of 1857.

Even at common law, bastards are recognised as children for every purpose but that of succession. Tenn.Rep., 101. They may take under a devise as children of their mother: Com. Dig., Bastard, E. They are punishable for incest: Regina vs. Chaffin.

It is established by the authority of Hays & Thomas that the statutes of distribution are to be construed by the civil law. By that law an illegitimate person may inherit from the mother, she being sufficiently certain, though the father is not.

The very point was decided in Heath vs. White, (5 Conn., 228,) that the word children in a statute for the purpose of inheriting from the mother shall be construed to include illegitimate children; and the same doctrine was expressly held in Burlington vs. Fosby, (6 Va., 83.)

3. The act of 1857 was constitutional and valid. To make a statute void it must be shown that it comes in direct conflict with some constitutional prohibition. It is not enough that it is retroactive, or divests antecedent rights, or gives remedies for defects in a title which would otherwise have been fatal, or affects pending suits, or gives a party rights which he did not possess before, unless it also impairs the obligation of a contract, or has the character of an ex post facto law. Satterlee vs. Matthewson, (2 Pet., 380;) Watson vs. Mercer, (8 Pet., 110;) Charles River Bridge vs. Warren Bridge, (11 Pet., 509;) Wilson vs. Baptist Educ. Soc., (10 Bach., 318;) Syracuse Bank vs. Davis, (16 Bach., 188;) Underwood vs. Lilly, (10 Serg. & Rawle, 97;) Tate vs. Stoolzfoas, (16 Serg. & R., 35;) Hepburn vs. Kurtz, (7 Watts, 360;) Baugher vs. Nelson, (9 Gill, 299;) Goshen vs. Stonington, (4 Conn., 410;) Mather vs. Chapman, (6 Conn., 54;) Beech vs. Walker, (6 Conn., 190;) Booth vs. Booth, (7 Conn., 365;) Norton vs. Pettibone, (7 Conn., 316.) But this act of 1857 took away no existing right; it simply construes the acts of 1845 and 1853 by making them relate to previous as well as to subsequent cases. It confirms rights, but does not destroy them.

This was an action of ejectment in the court below. Smith was plaintiff, and McCool defendant. A special verdict was found by the jury. The court rendered judgment for the plaintiff. The defendant has brought the case here by a writ of error, and is the plaintiff in error in this court.

The material facts of the case, as shown in the record, are as follows:

Polly Norris had four illegitimate children. Their names were: Alonzo Redman, Eleanor Fogg, Joseph ...

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