Alva R. St. John v. Conger

• Decision Date: 30 April 1866
• Parties: ALVA R. ST. JOHNv.CRAYTON H. CONGER.
• Court: Illinois Supreme Court

40 Ill. 535

1866 WL 4527 (Ill.)

ALVA R. ST. JOHN

v.CRAYTON H. CONGER.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Knox county; the Hon. JOHN S. THOMPSON, Judge, presiding.

This was an action of ejectment, brought in the court below, by Crayton H. Conger against Alva R. St. John, to recover the north-east quarter of section twenty-seven, in township thirteen, north of range two, east, in Knox county. A trial resulted in a finding and judgment in favor of the plaintiff The defendant thereupon took this appeal. The opinion of the court contains a sufficient statement of the case.

Mr. T. G. FROST, for the appellant.

Mr. A. M. CRAIG, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of ejectment, in which the plaintiff claimed through a deed from Robert McNemony to Peter H. Schenck, executed August 31, 1826, and improperly recorded in Madison county in 1846, the land lying in Knox county. Subsequently a copy of the record of the deed in Madison county was recorded in Knox. There was also a mortgage from McNemony to Schenck, properly recorded in 1820, and a deed from Schenck to Whittemore in 1835, and a chain of conveyances from Whittemore to the plaintiff. The original deed from McNemony to Schenck had never been reduced to record in Knox county. The defendant claimed under a deed from the heirs of McNemony to one Lancaster made and recorded in 1862.

It is insisted that the record of the copy of the deed from Madison county was sufficient to put subsequent purchasers upon inquiry. To hold that parties ought to have been put upon inquiry by this record, would be precisely the same thing as holding them affected with notice. This would be giving to the record of an instrument, not entitled to be recorded, the same force, as to notice, that we give to one legally reduced to record. We do not think any authority can be found in support of this proposition. On the contrary, the familiar rule, and one laid down by this court, is, that the record of an instrument not entitled by law to be recorded is of no avail as notice. Moore v. Hunter, 1 Gilm. 317. It is said, that a purchaser, as a matter of fact, receives the same information from the record of a copy as from the record of an original instrument. That may be true. But the broad difference is this: The statute only authorizes the record of original instruments, and it makes that record conclusive evidence of notice. It matters not that a subsequent purchaser has not, as a matter of fact, seen the record. If the instrument has been legally recorded, the law presumes him to have seen it, and holds him to the consequences of such knowledge. Not so as to the registry of a copy. It may be that if a party can be clearly proven to...