ERROR to the Circuit Court for the Northern District of Illinois: the case was this:
In 1818, the United States issued to one Parmely, a soldier of the war of 1812, and then residing in Connecticut, a patent for a tract of land in Illinois. In 1837, he sold the land to Edwin Lacy, and receiving payment in full for it, executed and delivered to Lacy, at the time, a regular deed. This deed, however, was never recorded, and at Lacy's death, in 1848, his family had no information respecting the deed, or the location of the land. Lacy left one son and only heir named Andrew.
On the 14th of August, 1854, a certain Benjamin Lombard, a dealer in military bounty lands, went to Parmely, in Connecticut, and having had some conversation with him as to whether any former deed had been made by him, obtained from him for the consideration of $19.56, a quit-claim deed to James Lombard. Benjamin Lombard took also from Parmely (indorsing it on the deed), an affidavit proving Parmely's identity with the original patentee, and stating 'that the deed which he has this day given for his bounty land is the only deed ever given by him for the said claim whatsoever.' This deed was recorded August 28, 1854.
On the 14th of November, 1854, a brother of Lacy, the original purchaser, having heard of Lombard's visit to Parmely, and of his obtaining a quit-claim deed for the tract, which he had understood, years prior, had been sold to his deceased brother Edwin, applied to Parmely and obtained a deed conveying the land to Andrew Lacy, son and only heir of Edwin Lacy, deceased. This deed contained a recital and statement to the effect that the land had been sold to Edwin Lacy, in his lifetime, and about October 1st, 1850, and paid for; that no deed had been given, or, if there had been, that it was lost. This deed was recorded November 25, 1854.
Andrew Lacy died soon afterwards, and by his will his title to the land went to one Mills.
James Lombard sold his right in the tract, for which he had got the deed already mentioned from Parmely, to a certain Smith, on the 7th December, 1855; the deed not being recorded until October 12th, 1858.
Mills now brought ejectment against Smith, and on the trial the original deed from Parmely to Edwin Lacy (the fact of having made which, or any like which Parmely by affidavit on the back of his deed to Lombard had denied), accidentally turned up.
The question was whether, under the recording acts of Illinois, which enact that deeds shall take effect, as against creditors and subseq uent purchasers, from the time that they are filed of record, the title was to be regarded in Mills, or whether in Smith?
The only important witnesses were Parmely himself and Benjamin Lombard, who had procured the deed for James Lombard. Both testified in regard to the facts of the case as already given; Parmely testifying that before he made the deed to James Lombard, Benjamin Lombard, a stranger to him, had hunted him out, and represented to him that there was no deed to Edwin Lacy on record; a representation which led him, Parmely, to believe that he might never have made a deed to Edwin Lacy, but only have handed over to him the patent issued by the government; that this Lombard stated to him that the town where the land lay wanted to get soldiers' rights, and would give $17 a deed, but no more; that the land had been sold for taxes, and that the right of redemption had expired, but that the town would give something. 'I told Mr. Lombard,' the witness continued, 'that I had disposed of the land to Edwin Lacy, who was then dead, and that I did not known that I could give anybody else a deed. Mr. Lombard said that he did not know whether I could or not. If I would only give him a deed he would give me the money.' The deed was then executed; Lombard, according to Parmely's testimony, himself drawing the affidavit, indorsed on it, and reading it to Parmely, who did not examine it to see if it was read correctly or not.
Benjamin Lombard's testimony went to prove that Parmely had assured him repeatedly that he had never before made a deed to the land to any one; that although he had been negotiating a trade for it with Edwin Lacy, the trade had fallen through from Lacy's not doing as he agreed to do; that Andrew Lacy, the son and heir, had been to him to get a deed, which he, Parmely, refused to give him, for the same reason that he had not conveyed the land to Edwin Lacy, namely, that no consideration has been paid.