Caton, C. J.
The very large amount involved in this controversy, may explain why so many questions of law have been presented and very elaborately discussed. In a case of ordinary' magnitude, many of them, perhaps, would not have been thought of, or if presented, would have been urged with less apparent confidence. While very large interests very naturally and very properly stimulate faithful counsel to great efforts and unusual acuteness, at the same time an overweening anxiety is liable to beget an overweening confidence. In this opinion, we must necessarily pass over many points which have been urged with more or less confidence, while we propose to consider, though briefly, all which are of real importance to be settled.
' And first and most important of all, is the question of jurisdiction. The prayer of the bill is, that the heir of an original grantor, whose unrecorded deed has been destroyed, be decreed to execute a new conveyance. Assuming that the ancestor once conveyed the premises to James Kinzie, and that that conveyance has been destroyed, the apparent title descended to the heir, and the temptation for him to assert such title, is certainly very strong. It is true the title never was in the heir. But the bare existence of a right, without the proof to establish such right, is as valueless as if no right existed. The title to land, under our law, can only be conveyed by the execution of paper writings. They are not only the evidence of the bargain and sale, but they are in truth and in fact the conveyance itself. They are the fact and deed, and not merely the evidence of the fact and deed. When these writings are executed with legal formality, the title is passed, and not till then. After that, the writings have performed a function which their destruction cannot defeat. The fact remains, and the title continues where it has been thus vested, although the best and even all evidence of the fact, may be destroyed. The deed is the best, though not the only evidence that it was executed, whereby the title was passed. When a deed is destroyed or lost, secondary or an inferior grade of evidence is admissible to establish the fact, which would be most satisfactorily established by the production and proof of the original deed itself. The highest degree or grade of this secondary evidence, is the record of the deed in the recorder’s office, when such record exists; and the next is an examined copy of the deed, and last of all, parol evidence of the contents of the deed. He who possesses this highest evidence of title, is most secure in the enjoyment of his own, and he whose rights are entirely dependent upon this last, the lowest grade of proof, is in the greatest danger of losing that which is really and in truth his own. Such is the condition of the complainants here. .The deed itself is lost or destroyed; it was never recorded, and no copy of it was ever made, and so far as we know, or have reason to believe, there is but one man living who ever read the deed and understands its contents. Upon the destruction of this proof, the title of the complainants, although it would still exist, would be practically lost, and the heir of the grantor would be invited to ignore the title conveyed by his father, and assert an unjust claim to this estate, and no power on earth could legally withhold it from him. While a title held subject to such hazard, is but of little value, the question is, whether the court of chancery has the power to furnish him with that higher and better degree of evidence of title which by misfortune he has lost. Confessedly no other tribunal has the power to do this, and if the •court of chancery has it not, the wrong must be suffered patiently. That it is right that the complainants should possess such proof of title as will forever secure them in its enjoyment, not only against the defendant Bennett, but all others, must and will be admitted by all men who are endowed with a proper sense of justice. The only way this can now be done, is to require the heir of the grantor, to whom the apparent title has descended, to renounce that title by quit-claiming all interest in the land or claim to such title. And. why should he object to this, admitting the proof of the execution of the deed by his father to James Kinzie to be sufficient ? The objection which his counsel urges is, that this deed was not lost through his fault or neglect, and that he is under no obligation to go to the trouble to sign the deed, merely for the benefit of another, through whose carelessness, perhaps, the deed was lost. While he claims no title to the land, he shall not be annoyed or disturbed about it, any more than any other stranger. This presents fairly, all that has ever bgsn urged by any court, or by counsel, so far as we have observed, against the exercise of this jurisdiction by courts of equity. And upon this very ground, have some very respectable courts denied this power to the court. This reasoning is based upon such narrow, illiberal and selfish grounds, that we can hardly treat it with that respect which is due to those who have adopted it. That a party who, by his misfortune, or, if you please, his fault, has lost the only evidence of his rights which can render their enjoyment secure, shall not have that evidence restored, because it will subject this young gentleman to the inconvenience of writing his name to a deed! He says he owes the complainants no such duty. He forgets that society often imposes upon all its members the obligation to submit to inconveniences and trouble, and even expense, for the sole benefit of others. Where was the obligation resting upon Rufus Soules, to attend as a witness in this case ? He was as much a stranger to it at least, as was the son of the grantor who sold this land and received the purchase money. What right have the courts to compel any one to quit his own affairs, no matter how pressing they may be, and attend as a witness or a juror in a litigation between strangers ? This duty to assist others, who stand in need of our assistance, for the maintainance of their rights, necessarily flows from the relations we bear each other as members of the same community—we being mutually dependent upon each other for security and protection. What harm can there be in doing right to one party, if no wrong is done to another ? What objection can the defendant have to releasing all claim to this property ? If his father conveyed it to Kinzie, why should he object to execute a paper which will preclude him from asserting a claim to the property, in case the complainants should lose the proof which they now have, to establish the deed ? The only rational motive which can be assigned, is his desire to retain a position which may enable him to assert a false claim to the property when time or accident shall have destroyed all evidence of the conveyance, which has been lost. An objection founded upon such motives, is repulsive to a proper sense of justice, and ought not to find a willing ear in a court of chancery. This question most generally arises, where the grantor is himself called upon to make a new conveyance to supply the place of the lost one, and his duty to do this, arises from more direct considerations, than impose a duty upon one. citizen to submit to inconvenience and trouble to enable another to enjoy his just rights. The benefit which he receives from the sale of the land, raises an implied obligation to do such future acts as circumstances may render necessary, to enable the purchaser to enjoy the fruits of the purchase. In case of the death of the grantor, the same duty, both moral and legal, devolves upon the heir.
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Caton, C. J.
The very large amount involved in this controversy, may explain why so many questions of law have been presented and very elaborately discussed. In a case of ordinary' magnitude, many of them, perhaps, would not have been thought of, or if presented, would have been urged with less apparent confidence. While very large interests very naturally and very properly stimulate faithful counsel to great efforts and unusual acuteness, at the same time an overweening anxiety is liable to beget an overweening confidence. In this opinion, we must necessarily pass over many points which have been urged with more or less confidence, while we propose to consider, though briefly, all which are of real importance to be settled.
' And first and most important of all, is the question of jurisdiction. The prayer of the bill is, that the heir of an original grantor, whose unrecorded deed has been destroyed, be decreed to execute a new conveyance. Assuming that the ancestor once conveyed the premises to James Kinzie, and that that conveyance has been destroyed, the apparent title descended to the heir, and the temptation for him to assert such title, is certainly very strong. It is true the title never was in the heir. But the bare existence of a right, without the proof to establish such right, is as valueless as if no right existed. The title to land, under our law, can only be conveyed by the execution of paper writings. They are not only the evidence of the bargain and sale, but they are in truth and in fact the conveyance itself. They are the fact and deed, and not merely the evidence of the fact and deed. When these writings are executed with legal formality, the title is passed, and not till then. After that, the writings have performed a function which their destruction cannot defeat. The fact remains, and the title continues where it has been thus vested, although the best and even all evidence of the fact, may be destroyed. The deed is the best, though not the only evidence that it was executed, whereby the title was passed. When a deed is destroyed or lost, secondary or an inferior grade of evidence is admissible to establish the fact, which would be most satisfactorily established by the production and proof of the original deed itself. The highest degree or grade of this secondary evidence, is the record of the deed in the recorder’s office, when such record exists; and the next is an examined copy of the deed, and last of all, parol evidence of the contents of the deed. He who possesses this highest evidence of title, is most secure in the enjoyment of his own, and he whose rights are entirely dependent upon this last, the lowest grade of proof, is in the greatest danger of losing that which is really and in truth his own. Such is the condition of the complainants here. .The deed itself is lost or destroyed; it was never recorded, and no copy of it was ever made, and so far as we know, or have reason to believe, there is but one man living who ever read the deed and understands its contents. Upon the destruction of this proof, the title of the complainants, although it would still exist, would be practically lost, and the heir of the grantor would be invited to ignore the title conveyed by his father, and assert an unjust claim to this estate, and no power on earth could legally withhold it from him. While a title held subject to such hazard, is but of little value, the question is, whether the court of chancery has the power to furnish him with that higher and better degree of evidence of title which by misfortune he has lost. Confessedly no other tribunal has the power to do this, and if the •court of chancery has it not, the wrong must be suffered patiently. That it is right that the complainants should possess such proof of title as will forever secure them in its enjoyment, not only against the defendant Bennett, but all others, must and will be admitted by all men who are endowed with a proper sense of justice. The only way this can now be done, is to require the heir of the grantor, to whom the apparent title has descended, to renounce that title by quit-claiming all interest in the land or claim to such title. And. why should he object to this, admitting the proof of the execution of the deed by his father to James Kinzie to be sufficient ? The objection which his counsel urges is, that this deed was not lost through his fault or neglect, and that he is under no obligation to go to the trouble to sign the deed, merely for the benefit of another, through whose carelessness, perhaps, the deed was lost. While he claims no title to the land, he shall not be annoyed or disturbed about it, any more than any other stranger. This presents fairly, all that has ever bgsn urged by any court, or by counsel, so far as we have observed, against the exercise of this jurisdiction by courts of equity. And upon this very ground, have some very respectable courts denied this power to the court. This reasoning is based upon such narrow, illiberal and selfish grounds, that we can hardly treat it with that respect which is due to those who have adopted it. That a party who, by his misfortune, or, if you please, his fault, has lost the only evidence of his rights which can render their enjoyment secure, shall not have that evidence restored, because it will subject this young gentleman to the inconvenience of writing his name to a deed! He says he owes the complainants no such duty. He forgets that society often imposes upon all its members the obligation to submit to inconveniences and trouble, and even expense, for the sole benefit of others. Where was the obligation resting upon Rufus Soules, to attend as a witness in this case ? He was as much a stranger to it at least, as was the son of the grantor who sold this land and received the purchase money. What right have the courts to compel any one to quit his own affairs, no matter how pressing they may be, and attend as a witness or a juror in a litigation between strangers ? This duty to assist others, who stand in need of our assistance, for the maintainance of their rights, necessarily flows from the relations we bear each other as members of the same community—we being mutually dependent upon each other for security and protection. What harm can there be in doing right to one party, if no wrong is done to another ? What objection can the defendant have to releasing all claim to this property ? If his father conveyed it to Kinzie, why should he object to execute a paper which will preclude him from asserting a claim to the property, in case the complainants should lose the proof which they now have, to establish the deed ? The only rational motive which can be assigned, is his desire to retain a position which may enable him to assert a false claim to the property when time or accident shall have destroyed all evidence of the conveyance, which has been lost. An objection founded upon such motives, is repulsive to a proper sense of justice, and ought not to find a willing ear in a court of chancery. This question most generally arises, where the grantor is himself called upon to make a new conveyance to supply the place of the lost one, and his duty to do this, arises from more direct considerations, than impose a duty upon one. citizen to submit to inconvenience and trouble to enable another to enjoy his just rights. The benefit which he receives from the sale of the land, raises an implied obligation to do such future acts as circumstances may render necessary, to enable the purchaser to enjoy the fruits of the purchase. In case of the death of the grantor, the same duty, both moral and legal, devolves upon the heir. The authorities are no doubt somewhat conflicting upon this question'; but we cannot for a moment hesitate as to what is the true and practical rule. All sound reason, so far as we are capable of comprehending it, is in support of exercising this power. Its only tendency is to support the ends of justice, and to establish and vindicate right, while it can do no possible harm to any one; unless it be a harm to deprive a party of the means to perpetrate a great wrong. It is no injury to a man to compel him to be honest. Nor does our statute which authorizes the perpetuation of testimony, take away from the court of chancery this power, and it scarcely presents a shadow of a reason why it should not be exercised. That, no doubt, affords some additional security to the parties claiming under the deed, but it leaves their rights still dependent upon the lowest class of evidence, which may be lost by some informality in taking the deposition, or by other casualty. We are far from admitting that the complainants would not be entitled to this relief, even if the deed had been regularly recorded in the recorder’s office. Of the jurisdiction of the court to grant the relief sought, we. have no doubt.
There are two important questions of fact presented in this record, the testimony taken upon which, has swelled the record .to an immense volume, to thoroughly examine and understand which, we have spared no labor. Without this, we could make no real progress towards determining the real merits of the case. These questions are, First, did William Bennett actually convey the premises in question to James Kinzie ? and, Second, was the deed > presented by Mr. Stow, executed by the William Bennett to whom this land was patented by the United States ?
The direct evidence upon the first point, is contained in the testimony of four witnesses. Rufus Soules, his wife, and daughter, swear to the existence of the deed, from Bennett to Kinzie, although neither of them pretend that it was ever actually delivered to Kinzie in person, or that he even ever saw it; while Kinzie himself swears, that he never purchased the land of Bennett, and never had any knowledge of any such deed; while the testimony of Soules, if it is to be believed, shows, that he told Kinzie that Bennett had executed such a deed, and left it with him for Kinzie, and that Kinzie promised to call and get it. It is simply a question of veracity between these witnesses. An immense number of witnesses were called to impeach and support both Soules and Kinzie, and the right of cross and re-examinations were completely exhausted, for the same purpose. We shall not attempt to review this evidence, for the purpose of vindicating the conclusion at which we have arrived. This could not be done within any reasonable limits of a judicial opinion. It is sufficient for the present case, that we simply state our conclusions, and such a review would be useless for the purpose of settling any principle, for the government of future cases. We are entirely satisfied from the evidence in this record, that William Bennett did execute and acknowledge a deed of the premises in question, to James Kinzie, and deliver the same to Rufus Soules, for the grantee named in the deed; and that afterwards, Soules informed Kinzie of this fact, who approved thereof, by promising to call and get it; and that this deed has been lost or destroyed, so that it cannot now be produced to establish the title of the complainants, who hold, under grants, executed by Kinzie, of these same premises. It has been strenuously urged, that the testimony of Soules does not sufficiently prove the contents of that deed. He gives the approximate date as 1838; he cannot remember the precise consideration, but says it was not large; he describes the land with most satisfactory certainty ; tells us positively who the gantors and grantee were; says it was a quit-claim deed, and that there was no warranty about it. He thinks the deed was all in writing, but of this, he is not positive. The witness had it in his possession several years, and had carefully examined it and compared it with the duplicate which Bennett had left with him at the same time, and by means of which, he was enabled to describe the land with certainty. Parol proof of the contents of lost deeds must be so clear and positive, as to leave no reasonable doubt of the substance of the material parts of the paper. But that which would be of vital materiality in one paper, or under certain circumstances, might be quite immaterial in another paper, or under other circumstances. In an action brought upon a lost note or bond, the precise sum mentioned in it, would be material, to determine how much the plaintiff would be entitled to recover; while the precise consideration mentioned in a deed, would be of but secondary importance, as the conveyance would be equally valid with a small as with a large sum. So, under certain circumstances, it would be of the last importance to know whether a deed contained covenants and warrantees, and of what precise character—as where an action is brought on the covenants in the deed, or where a claim is set up of an after acquired title, which would enure to the benefit of the grantee under a deed with warrantee, while it might not, under a mere release, or quit-claim. Such was the precise character of. the case of Rankin v. Crow, 19 Ill. R. 626. There it was claimed, that a subsequently acquired title enured to the grantee in the deed, and the witness could not tell whether it was a quit-claim, or a warrantee deed, and, of course, it was held insufficient, while a question of warranty would be only material to test the accuracy of the witness’ knowledge, or recollection, where the warranty could not affect the controversy in the particular case. The question in this case is, was there a deed executed by the alleged grantor to the grantee, founded upon a sufficient consideration to support it, and conveying the land in question ? Upon this point, we can have no doubt, if the witness, Soules, is to be believed, and we do believe him. The circumstances under which this deed came to the knowledge and possession of this witness, are entitled to much consideration, in determining the sufficiency of the proof of the contents of this deed. Our only object in learning the contents of this deed with certainty, is to enable us to judge of its effect in this case. We are aided in this inquiry very much by the fact that the grantor, in the deed, presented it himself to Soules, as having heen executed by him, for the express purpose of conveying the title to this land to James Kinzie. Knowing this to have been the avowed object of the grantor, it affords some • presumption, at least, in aid of the parol proof, that the provisions of the deed were adequate to effectuate that object, and we may be less critical in examining the parol proof of the contents of a deed under such circumstances, than where we are left in total ignorance of the objects of the grantor, except as derived from' the examination of the paper alone by the witness. These very circumstances would have a strong tendency to fix upon the mind of the witness, the true character of the paper, when he subsequently examined it. We think the proof of the contents of the deed sufficient.
It has been also objected that the proof does not show a delivery of this deed to, and an acceptance of it by James Kinzie, and that hence the title never vested in him. We do not propose to embrace this occasion to go into an elaborate examination as to what is necessary to constitute a delivery and acceptance of a deed, so as to vest the title, but shall reserve that for some other occasion. When that is done, we shall see that when Bennett had delivered the deed to Soules, with instructions for him to deliver it to Kinzie, and had thus put it beyond his control, for the express purpose of having it take effect as a deed, and Soules informed Kinzie of that fact, and desired him to call and get the deed, and Kinzie approved of and sanctioned this, by promising to call for it soon, this constituted in law a delivery and acceptance of the deed, and from that time, the title was vested in Kinzie. Thenceforth Soules held the deed, not as the agent of Bennett, but of Kinzie alone. Then it ceased to be an escrow, and became an operative conveyance. But, if we could agree with the defendants’ counsel, and conclude that the deed never was accepted by Kinzie, but that it ever remained an escrow, we should have been spared the trouble of discussing the question of jurisdiction, which we have already considered. Then we should have nothing to do but to enforce the specific performance of the agreement to convey the premises to Kinzie, which was sufficiently evidenced in writing by the deed left with Soules. No delivery to, or acceptance by Kinzie, was necessary to make the deed a binding memorandum in writing for the conveyance of land, within the statute of frauds, and as such it could be enforced in a court of equity, for we presume it will hardly be denied, even in this case, that the court of chancery has jurisdiction to enforce the specific performance of such a contract.
We may next consider the objection which is made, that the deed from James Kinzie to John H. Kinzie and Hiram Pearsons, was a quit-claim deed, and was executed before the deed from Bennett to him. So that the' title subsequently acquired does not enure under it to the benefit of the grantees. If it be but a quit-claim deed, it contains a covenant for further assurances; under this covenant, a subsequent title enures, as well as under a covenant of warranty. The reason why a subsequently acquired title is held to pass by a deed containing covenants of warranty, is, that it effectuates the real intent of the parties which was to convey the true and real title to the land, and to avoid circuity of action and further litigation. It is a principle of equitable jurisprudence, adopted by the courts of law, and by them engrafted into the common law itself, and has been sanctioned by our statute. The same reasoning applies, in the same terms and with equal force, where the deed contains a deed for further assurances, as where it contains a covenant of warranty. By this deed, Kinzie “ remised, released, and forever quit-claimed ” to the grantees, “ all that certain piece or parcel of land, described as follows, to wit: ” and assumes this covenant: “ That he, the said James Kinzie, will, with all convenient speed, obtain a patent for said above described premises, and will, whenever called upon by said John H. and Hiram, their heirs and assigns, after obtaining said patent, make, execute and deliver to said John H. and Hiram, their heirs or assigns, such other deeds of conveyance, with full covenants, (and releasing dower,) of said premises, for the conveying, investing and assuring to the said John H. Kinzie, and Hiram Pearsons, a full and perfect title in fee simple to said premises, as they, the said John H. Kinzie and Hiram Pearsons, their heirs or assigns, or his or their counsel learned in the law, shall reasonably devise, advise or require.” This deed is not a mere release of whatever interest the grantor had in the premises, but by it, he remised, released and forever quit-claimed the land itself, and in this it differs from the deed in Frink v. Darst. But without saying that, under our statutes, these expressions would carry the subsequently acquired title, we have no hesitation in saying, that the covenant does. It shows the the unqualified intention of the grantor, to invest the grantees with all the title which he then had, or which he might subsequently acquire, and when such is the case, the subsequently acquired title must be held to pass upon equitable principles, adopted and enforced by the courts of law, and much more so, in a proceeding in chancery as this is. Such was the effect given to the deed in Kellogg v. Phillips, 15 Ill. R. 131. In that case, the grantor only professed to convey whatever interest he had in the land, and not the land itself; but he covenanted that if he should subsequently acquire a better title, it should enure to the grantees in the deed. There the intention of the parties was allowed to prevail, and we held that the subsequent title passed.
But admitting that in this case, the subsequent legal title did not pass by this deed, it would be no ground for reversing this decree. That covenant for further assurances, runs with the land, and becomes a covenant to all grantees of Kinzie and ■ Pearsons, and it is admitted by the stipulation and shown by the conveyances, that these complainants are such grantees. So that they could in equity enforce specifically the performance of this covenant against Kinzie, as the equitable owners of the land under him. This of itself, was sufficient to authorize the court to decree the execution of a new deed by the heir of the grantor to James Kinzie, to supply the place of the one lost, which places him in a position to be coerced by a court of equity to perform this covenant specifically to the complainants.
It is also objected, that no affidavit of the loss of this deed was filed with the bill. If this were a case in which an affidavit was required, it is too late now to raise this objection, after the proof has shown that very fact. It would be the merest trifling for the court to listen to such an objection now, with this proof before us.
Another objection was made as to the time of the appointment of the guardian ad litem,, which we do not consider tenable.
There is but one other question in the case, which we feel called upon to examine ; that is, whether the deed which Stow presents, purporting to be a conveyance from William Bennett, is genuine or not. Notwithstanding the very elaborate written argument which has been presented by the counsel for Stow, covering more than one hundred and twenty pages, devoted entirely to this question, we shall dispose of it in a single sentence : the proofs leave not a shadow of doubt on our minds, that it is a base forgery or fraud.
The decree of the court below is affirmed.
Decree affirmed.