Delano v. Bennett

Citations

• 90 Ill. 533

Syllabus

<p>1. Recording daw—deed first recorded takes precedence. Under our recording Laws .where a party makes two conveyances of the same land, the deed first filed for record is given the preference and passes the title.</p> <p>2. Same—presumption as to time of recording. Where a clerk’s certificate to a copy of the record of a deed states it to be a true copy as “ appears of record in book D, pages 172, etc., first of State recorder’s office at Vandalia, Illinois, and now in” his office remaining, but there is nothing to indicate when the deed was recorded, it will be held to have been recorded in the State recorder’s office some time before June 1, 1833, the day such office was abolished.</p> <p>3. Possession—no presumption when taken. Where a party claiming title to land is shown to have been in possession in 1866, it can not be presumed that any one was in actual possession in or prior to the year 1833, when a deed was recorded under which an adverse claim in made.</p> <p>4. Mortgage—conveyance of mortgagee’s interest. A mortgage being a mere incident to the mortgage debt, a conveyance of the mortgagee’s interest in the land without foreclosure, and without an assignment of the debt, is considered, in law, a nullity and passes no title.</p> <p>5. Evidence—decree against one not a party. A decree in a suit for the partition of land by heirs, which finds the allegations of the petition true, among which is that of the death of a person and the heirship of the parties, is prima facie evidence of the death and heirship, against a party in ejectment, though he was not a party or privy to the partition suit.</p>