Guard v. Rowan

• Decision Date: 31 December 1840
• Citation: 3 Ill. 499,2 Scam. 499,1840 WL 2989
• Parties: CHALON GUARD, ex dem. JESSE J. ROBINSONv.STEPHEN R. ROWAN.
• Court: Illinois Supreme Court

2 Scam. 499

3 Ill. 499

1840 WL 2989 (Ill.)

CHALON GUARD, ex dem. JESSE J. ROBINSON

v.STEPHEN R. ROWAN.

Supreme Court of Illinois.

December Term, 1840.

OPINION TEXT STARTS HERE

THIS cause was tried in the Gallatin circuit court, at the September term, 1839, before the Hon. W. B. Scates and a jury. Verdict and judgment were rendered for the appellee.

W. J. GATEWOOD, for the appellant, cited Acts of 1827 (Gale's Stat. 152, 153), 1829; (Gale's Stat. 155, 156), R. L. 135, 138, 587, 588; (Gale's Stat. 663, 664), Roberts on Frauds 262, 265, 268; Sugden's Vend. 623; 5 Monroe 581.

S. T. LOGAN and H. EDDY, for the appellee, cited 2 Sugden's Vend. 254, 336; 8 Johns. 140; 9 Johns. 168; 10 Johns. 461; Fonb. Eq. 148, 156; 4 Monroe 196.

WILSON, Chief Justice, delivered the opinion of the court:

This was an action of ejectment instituted by Robinson against Rowan, in the Gallatin circuit court.

The facts of the case, as they appear by the record, are, that the land in dispute was owned by John Bays, and sold by him to the defendant Rowan, by deed bearing date the 11th of December, 1832, which was recorded on the 11th of December, 1833. On the 10th of September, 1833, Curtis Hill obtained a judgment against Bays, to satisfy which the land in question was levied on, on the 23d of December, 1833, and sold by the sheriff, on the 14th of March, 1836, and Robinson, the lessor of the plaintiff, became the purchaser, and subsequently received a deed from the sheriff, the premises not being redeemed. On the day of sale, the sheriff gave notice generally, and informed Robinson, who was the attorney of Hill, before the land was sold, that Rowan had a deed for the same land, which was recorded. Upon the trial, the plaintiff's counsel moved the court for the following instructions: First. That any notice or knowledge of Rowan's title, by a purchaser at sheriff's sale, would not affect or invalidate his title, nor would any notice which the judgment creditor might have had, or his attorney at law.

Secondly. That the defendant's deed, not having been recorded before the rendition of the judgment under which the plaintiff claims title, is void, in law, as to said judgment and creditor thereof.

These instructions the court refused to give, and the plaintiff excepted.

This refusal of the court is now assigned for error. The correctness of the decision of the court, in refusing these instructions, depends upon the proper construction of the several acts of the legislature regulating the manner, and declaring the effect, of recording deeds and other writings. The act of 1827 requires all deeds, &c., for land, to be recorded within twelve months after their execution; and if not recorded within that time, they shall be adjudged void against any bona fide subsequent purchaser or mortgagee, for valuable consideration, unless such deed, &c., shall be recorded before the recording of the deed, &c., under which the subsequent purchaser or mortgagee shall claim title. By an amendment to this act, in 1829, the time for recording deeds was limited to six months. Rowan became a purchaser, and received his deed from Bays under these acts, by the terms of which it will be perceived that bona fide subsequent purchasers and mortgagees only are protected against the operation of an unrecorded deed, and that only upon the first purchaser's failing to have his deed recorded prior to that of the subsequent purchaser. Under these acts, then, a deed is valid and binding, not only between the parties, but against all others, except a bona fide subsequent purchaser, &c., whose deed is first recorded. Robinson does not come within the exception specified. He is not a bona fide...