The Opinion of the Court .was delivered by
Scates, J.*Ejectment against the plaintiff in error, to recover a lot in the town of Peoria. The defendants deduce two chains of title, one by Patent from the United States to the county of Peoria, and by conveyance from them to James C. Armstrong, and by purchase under an execution issued on a judgment against him in favor of Isaac Under-hill.
The other chain of title is by purchase under an execution issued on a judgment for the taxes of 1840, against the lot, and in favor of the State.
The plaintiff objected to all the evidence below, but confines his objections here to the conveyance by the County Commissioners to Armstrong, and to the proceedings on the sale for taxes.
The plaintiff offered to prove that Susan Buxton had claimed the premises as owner .ever since 1838, and had occupied them by herself or tenants; that the defendant entered and took possession in 1841 under a lease from her and had occupied ever since, and that he had not had notice or demand tó quit or give up the premises. This was objected to and excluded, and very properly we think. If the defendants showed no title, it was unnecessary to prove this possessory one. If they showed title, this one was of no moment. So, in no event, does it appear that this proof was relevant, or important, upon the face of this record.
The first objection I shall notice, was taken to the admission in evidence of the record of deeds of the county, to show the conveyance from the county of Peoria to Armstrong. For a foundation for the introduction of this secondary evidence the defendants were both sworn, and stated that they had not, and never had the possession of said deed, and did not know where it was; that it was out of their power to procure it; and they had sent Mr. Metcalf to Armstrong to get it from. him, supposing he had it. Mr. Metcalf was sworn, and stated that he had called upon Armstrong for the" defendants to get the deed; that Armstrong said he had not had the deed for a long time, and did not know where it was. Armstrong lived in Peoria at the time of " trial. Plaintiff had been duly notified to produce, and did not. The secondary evidence was admitted under this proof, and we think well enough. Parties are required to make diligent search and inquiry; this inquiry was made of the very person whose muniment it was, and in all probability had it, if-in existence. His answer to the inquiry is competently proven by the witness who made it. It was not necessary to call the person himself, unless circumstances should raise the suspicion that the answer was untrue, or that the deed was probably in existence, and could be had upon proper search. Here the answer was "positive and unequivocal, that it was not in his possession, and he knew not where it was. Under these circumstances, he being entitled to its custody, it is presumable it was lost or destroyed. But independent of the principle of common law, the statute has made the record of the deed evidence, whenever it shall appear to the satisfaction óf the Court that the original is not in the power of the party wishing to use it. Gale’s Stat. 153, § 17.
The next objection is to the deed from- the county to Armstrong, on the grounds that it was not made by the county, and is not under the seal of the county. I think the objection is not well taken. The deed purports to be “ between the County Commissioners of the county of Peoria, and State of Illinois, of the first part, and James C. Armstrong, of the second part, Witness eth, That the said Commissioners, party of the first part, for and in consideration,” &c., and concludes, “ In testimony whereof, the party of the first part have hereunto set their hands and seals.” (Signed,) “John Coyle, [l.s.] Orin Hamlin, [l.s.] Andrew Tharp, [l.s.]
The acknowledgment of the deed was taken by the County Commissioners’ clerk in open court, certifying that they are the “legal acting Commissioners,” with the seal of the Court, authenticating the acknowledgment.
This is a corporation, and it possesses a seal, and it is true that they must authenticate their solemn acts of record, and by deed, by the seal of the corporation.
But the clerk, not the Commissioners, is the keeper of the seal. What they order as a Court, he will enter and authenticate with the seal. But what they do in pais, he cannot, otherwise than as it is ordered of record, or acknowledged before him, where he is allowed to take such acknowledgment, as in this case. They have no right to take, or use the seal. No one, I imagine, would contend, that the clerk could sign and seal the deed for the Court. They may sit in open Court, and make, seal, and acknowledge the deed, or they may make and seal it in pais and acknowledge it before the clerk. In either way, the corporate seal to the attestation of acknowledgment will satisfy the requirements and principles of law, requiring corporations to act under seal. I do not perceive how they could well get the seal to it in any other way, without dispensing with their own signatures, which I think to be necessary. The individual names of the members of the Court are signed, with their private scrawls, without annexing an official description. But the introductory part of the deed has fully described the grantors, and the witness to the deed is made by the “party of the first part.” We know by law, that the corporation is represented by official persons, and these representatives of the corporation have officially, as such, acknowledged it. This is all proper, and well ■enough. The Patent in this case issued to the “County Commissioners,” naming the individuals then filling the office, and their successors in office. The decision in 1 Scam. 604, so far as intimation was thrown out by the Court that it should have been in the name of the “county,” therefore, does not apply. The Patent in that case was to the <vcounty;” in this, to the “County Commissioners.” But the decision itself disposes of this objection under the statute. Gale’s Stat., 156, § 2; see, also,§ 158.
Several objections have been taken to the title derived under the tax sale. The first that I will notice is, that the successor of the sheriE who made the sale, executed the deed. At the time of making this deed, there was a statute allowing the successor of the sheriE, or other officer, who had made sales of real estate, to execute the deeds, but did not in express terms include deeds made by sheriEs on sales for taxes; nevertheless, as it is an official Act, connected with the office, and not a personal trust reposed in the man, I regard the statute as only declaratory of what the law was before its passage; and it is a general declaratory Act including other officers, whose duty it was to sell real estate. R. L., 109, § 30. A deed, therefore, made either by the officer making the sale, or his successor in office, would be good and valid under the statute as to this objection, as may be seen by reference to the diEerent provisions of the Acts, and the decisions of this Court. Gale’s Stat. 158, § 2; 3 Scam. 208.
Another objection to the sale was, that it was .made on the second Monday succeeding the first day of the term at which the judgment was rendered, instead of the second Monday succeeding the adjournment.
We are of opinion, that the former day is the one fixed by the true interpretation of the Act, but we can see no objection to a sale made on the latter day. We find the language of the Act has given rise to a diversity in the practice. This has, however, been settled by the last Revenue Act, Rev. Stat. 444, § 47, which has fixed the day of sale for the fourth Tuesday next succeeding the Commencement of the term. The direction in the statute, requiring the clerk to make out a list and transcript of the order and the lands within five days after the adjournment, it is contended, precluded the latter construction, as where Courts sit several weeks, as is the case in some counties, .the second Monday from the commencement would arrive before the adjournment, and so ¡he sale would be required to be made before the transcript is required to be issued.
By fiction of law the term is one day, but as the judgment and proceedings on these applications are entered and kept m a separate record, without resorting to the fiction, the adjournment may be presumed to follow immediately upon the entering this judgment, as to this proceeding.
But these nice disquisitions, either the one way, or the other, are in no wise valuable, in interpreting and laying down rules for common practical business affairs. They should not be incumbered by too many and nice distinctions, else it will be found impracticable ever to carry into effect the plain intentions of the law-giver; and they are a sale of the lands to raise the taxes and secure the revenue when the owner neglects payment. The plainer and more simple the rule, the more easy it is to be followed and complied with.' I know that the rule of strict construction applies to the exercise of these naked powers; but we cannot indulge invention in raising a thousand subtleties that would never enter the mind, or imagination of a ministerial officer pursuing the main object, the raising a just proportion of taxes by sale of the land. The object of the notice of the day of sale is to secure bidders and competition. Where the day becomes known to the community, by fixing upon the one day or the other the main object is attained, and the owner is, as to this object secured in every right he can demand. Still, if this view of the subject cannot be relied on, another objection arises to the plaintiff’s taking advantage of the fact upon this record. By the forty third section of the Act of 1839, (Laws of 1838-9, 18,) the deed is made conclusive evidence “that the sale was conducted in the manner required by law,” and before any person claiming adversely to this title can be permitted to defeat it, he is required by the same section, among other things, to show that he, or the person under whom he claims, had title to the land at the time of sale. This the defendant has not done, otherwise than by offering to show possession for two or three years before the sale, which is not admissible.
We are of opinion, therefore, that there is no error by reason of any objection that has been urged, for the former title would be sufficient to entitle the defendants to recover without the latter. Judgment affirmed with costs, and a writ of possession awarded.
Judgment affirmed.
Wilson, C. J., and Lockwood, L, did not sit in this case.