¶1dissenting:
¶2I think the evidence introduced on the trial of this case proved that the abstract furnished appellee by appellants showed a good title in Mrs. Bay. But one objection to that title is urged, viz., the bill by Brown against the canal trustees and heirs of Joseph Matteson failed to make James Matteson, or his heirs or representatives, a party defendant. It is conceded that the abstract showed that the bill alleged, in substance, that Brown and Joseph Matteson purchased of the canal trustees said property, and paid them therefor; that the deed for the same was made and delivered to them, but by mistake the name James instead of Joseph, before the name “Matteson,” was written therein. It was admitted on the trial that it was stated in that bill, “in almost every form of verbiage, that the name James was used in the deed instead of Joseph, by mistake.” It is not contended that said bill showed that any person named James Matteson claimed title to said premises under that or any other conveyance. Admitting the name James Matteson, written in said deed, raised the presumption that there was such a person, and that the conveyance was to him, the bill showed that as to that transaction there was, in fact, no James Matteson,—that the conveyance by said trustees was not to a person bearing that name. Therefore, the bill showed that no person named James Matteson had an interest in the property in question. A particular James Matteson could only have been properly made a party to such bill because he had, or claimed to have, some interest in the subject matter of that litigation.
¶3Under the allegations of his bill, what James Matteson could Brown have made a defendant, so as to have removed the objection urged against this title? The position of appellee amounts to saying, that notwithstanding more than thirty years have elapsed since the decree finding the allegations of said bill to be true, there was a mistake in the use of the name James in the deed from said canal trustees to said Brown and Joseph Matteson, and that no James Matteson whatever took any interest in said premises, yet inasmuch as James Matteson was not made a party to such decree, some person bearing that name may still appear and assert ownership, as the grantee of said canal trustees. Had the James Matteson who once resided in Chicago been summoned as a defendant in that proceeding, and had been defaulted, there being no allegation that he claimed an interest in said property, would the decree have been more conclusive ?. Might not another person of that name still assert that he was the grantee named in said deed ? Suppose that after the delivery and recording of the first deed, upon discovery of said mistake, a second deed had been executed by the canal trustees, correcting the error in the first, and stating that it was made for that purpose, would it have been said the title in Joseph Matteson or his heirs was still defective, because some James Matteson was not a party to such correction, and therefore the title might he questioned by a person of that name, under the first deed ? Here, the abstract showed that on a petition to a court of chancery to correct the mistake in said first deed, all parties to the transaction (or their heirs) being before the court, the grantors were ordered to make a new deed correcting the mistake, and that in obedience to such order they did make a. second deed. I am unable to see why this last deed is less efficacious to perfect the title in the heirs of Joseph Matteson than it would have been if it had been voluntarily executed, as in the case above supposed.
¶4It is doubtless possible that some James Matteson may yet claim title as against Mrs. Bay; but that possibility is, in my judgment, too remote to cast a reasonable suspicion upon her title. Such a claim, if asserted, would be a most groundless and fraudulent one,—to my mind no less so than if asserted under a forged deed, or by one falsely personating the grantee in a deed.
¶5One who bargains for “a good title” can not be required to take one which is subject to suspicion. “This does not mean that the title shall be good beyond a possible per adventure,— for then he might never be satisfied,—but it must be free from reasonable doubt.” (Brown v. Cannon, 5 Gilm. 182.) Tested by this reasonable and- just rule, it seems to me the title presented to appellee by the abstract furnished him, was a good title.
¶6Mr. Justice •Craig, also dissenting.