Dunlap v. Wilson

• Decision Date: 30 November 1863
• Citation: 1863 WL 3211,32 Ill. 517
• Parties: JAMES DUNLAPv.LEVIN J. WILSON et al.
• Court: Illinois Supreme Court

32 Ill. 517

1863 WL 3211 (Ill.)

JAMES DUNLAP

v.LEVIN J. WILSON et al.

Supreme Court of Illinois.

November Term, 1863.

ERROR to Circuit Court of Union County.

The facts are sufficiently stated by the court.

Wm. Thomas, for plaintiff in error.

J. Dougherty, for defendants in error.

WALKER, J.

It appears from the evidence in this case, that Gatewood, being indebted to the Bank of Illinois in a large sum, executed a mortgage embracing the lands in controversy, together with others, to secure its payment. It bears date on the 19th of February, 1840, and was recorded in the proper office on the 8th day of March, 1845. That in the year 1848, Gatewood died intestate, without having paid the mortgage debt, or otherwise released the lands from the lien of the mortgage. In September, 1850, the assignees filed their bill against Gatewood's administators and heirs, to foreclose the mortgage; obtained a decree, and the lands were sold under the decree on the 19th of October, 1852. At that sale plaintiff in error became the purchaser of the premises in controversy for $2,357.06, and received a deed on that day, from the master in chancery. The sale was approved and confirmed by decree of the court.

On the 14th day of October, 1843, defendant Wilson obtained a deed for these lands from Gatewood, in payment of a debt the former held against the latter. This deed was duly recorded on the 20th day of January, 1844. On the 15th day of December, 1856, Wilson coveyed the land in controvery to defendant Coleman, for the consideration of one hundred dollars. This deed was recorded in the proper office on the 16th day of March, 1858. This bill was exhibited on these facts for the purpose of quieting the title of complainant and to have Gatewood's deed to Wilson, and Wilson's deed to Coleman, canceled.

The bill charges notice of the existence of the mortgage to the bank by Wilson when he purchased of Gatewood, and that the conveyance by Wilson to Coleman was made in consideration of natural love and affection, Coleman being a nephew of Wilson. They, in their answer, deny all notice, but admit the relationship, and that the consideration for the conveyance was natural love and affection. Coleman alleges in his answer, that he had exercised acts of ownership over the land for more than seven years before the suit was instituted, by paying taxes, protecting the timber, as well as by other acts, and insists upon the statute of limitations as a bar to this suit. On the hearing in the court below, the bill was dismissed, which is now assigned for error.

There can be no pretense that defendants, or either of them, had constructive notice of this incumbrance, by its being recorded. The deed to defendant Wilson was executed before the mortgage was placed upon record, and it was recorded nearly fourteen months before the mortgage. If, then, Wilson took subject to the mortgage, it was because of actual notice of its existence, or of notice of such facts as, upon reasonable inquiry, would have led to notice of the mortgage. This is positively denied by a sworn answer. Kirkpatrick, however, testifies that he informed Wilson, both before and after his purchase, that all of Gatewood's lands were mortgaged to the bank. This is the only witness who attempts to prove that there was actual notice before the deed was executed. This evidence of but one witness is not sufficient to overcome the sworn...