Hatch v. Bigelow

• Decision Date: 30 April 1864
• Citation: 1864 WL 3153,39 Ill. 546
• Parties: GEORGE HATCHv.AMORY BIGELOW AND JOSEPH J. MILLER.
• Court: Illinois Supreme Court

39 Ill. 546

1864 WL 3153 (Ill.)

GEORGE HATCH

v.AMORY BIGELOW AND JOSEPH J. MILLER.

Supreme Court of Illinois.

April Term, 1864.

WRIT OF ERROR to the Superior Court of Chicago; Hon. JOSEPH E?? GARY, Judge, presiding. This is an action of ejectment brought to recover possession of lot five, block eighteen, in Johnson, Roberts & Storrs' addition to Chicago. Both parties claim under Samuel B. Pomeroy. The defendants in error trace title from two judgments against Samuel B. Pomeroy and Eleazar L. Pomeroy, in United States Court, which became a lien on the land the 28th of September, 1857. The sale of said land under two executions issued on said judgments January 17, 1862, and a deed from J. R. Jones, U. S. Marshal, to defendants in error.

The plaintiff in error (who is tenant under Frederick J. Posey), claims title by a bond from Samuel B. Pomeroy to Benjamin F. Lushbaugh, dated December 29th, 1856, and assignment of same from said Lushbaugh to Frederick J. Posey, dated 12th day of September, 1857, and deed from Samuel B. Pomeroy to Frederick J. Posey, the landlord of plaintiff in error, dated February 15, 1859. The bond for a deed from Pomeroy to Lushbaugh was not recorded. The bond under which Posey, the landlord of the plaintiff in error, claims, was for the conveyance of the land in question by Pomeroy to Lushbaugh, in consideration of $955.50-- $238.88 cash, and the balance in three yearly installments with interest at six per cent. The first deferred payment was duly made on 29th December, 1857, amounting to $281.87; the second was made on the 13th of January, 1859, and amounted to $263.33; and the last was made at the date of the deed from Pomeroy to Posey, on the 15th of February, 1859, having been anticipated by about ten months.

The cause was tried by the court without the intervention of a jury, at the January Term, 1864. Upon the trial, the plaintiff, after giving in evidence his title papers, called, as a witness,

Samuel H. Kerfoot, who testified in chief as follows: I had charge of the property after it was purchased by Lushbaugh and Posey; Mr. Lushbaugh left it for sale with S. H. Kerfoot & Co., and we put a board upon it, notifying the public that it was for sale, and to apply to our firm; can't tell what has become of the board; have not got it; can't produce it; we fenced the whole block for Pomeroy and Wendell, for whom we were agents; this was before the sale to Lushbaugh; we built sidewalk after Lushbaugh purchased; Lushbaugh & Posey resided at Hagerstown, Maryland, at the time of sale to Lushbaugh and assignment to Posey; I didn't know of assignment until 29th December, 1857, when Posey sent the money to us to make the payment; the board on the premises, notifying the public that “this property was for sale, apply to our firm,” remained on this property until after December 29th, 1857; the board was put up very promptly after the sale to Lushbaugh, which sale was made through our firm; the board was on this lot in question; we had no other lot in the block for sale; the sidewalk was put in front of the lot in the summer of 1857; the language of the board was, “For sale by S. H. Kerfoot & Co., 48 Clark street.”

Cross-examination.--I don't know who put the board there; I saw it there during that year frequently, before September 28th, 1857; I often went by there; I am sure it was on this lot; I had sold the south three lots of the block before to Chas. V. Dyer, for Pomeroy; Mr. Wendell, of Albany, owned the property north of this lot; the fence was around the whole block in common; not subdivided on the line of lots; nothing to distinguish one lot from the other; I am not sure but there was a fence on the north line of the lot, between Wendell and Pomeroy; Pomeroy had put trees around his, the south half of the block; no fence between lots five, six, seven or eight; we put a fence round the whole block eighteen; Mr. Pomeroy owned the whole south half of the block; I was agent of Posey; I collected rent for him and do still; Wilsey paid rent on the lease before Smith; the sidewalk was in front of the whole block; there was no house on the lot at the time of the sale to Lushbaugh & Posey, in 1859.

It was admitted on the trial that Hatch, the plaintiff in error, holds under Posey.

Judgment was rendered for the plaintiffs below, and the defendant below sues out writ of error. Messrs. HERVEY, ANTHONY & GALT, for the plaintiff in error.

The court should have given judgment for plaintiff in error. Although the contract from Pomeroy to Lushbaugh, under which plaintiff in error claims, was not recorded on the 28th of September, 1857, the day which the judgments under which defendants in error claim became a lien, yet there were certain facts and circumstances, apparent upon and around said lot, sufficient to have put the defendants in error upon inquiry as to the title to the land; and they are chargeable with knowledge of such facts, as to the rights of other parties in said lot, as might have been ascertained by pursuing the inquiry, as a prudent purchaser would have done. When a purchaser has sufficient information to lead him to the knowledge of a fact, he shall be deemed cognizant of that fact. Doyle et al. v. Teas et al., 4 Scam. 250; McConnel v. Reed, Id. 123; Merrick v. Wallace, 19 Ill. 486; Rupert et al. v. Mark, 15 Id. 541; Brown et al. v. Gaffney et al., 28 Id. 149; Ross v. Hall, 27 Id. 104; Morrison v. Kelly, 22 Id. 610.

The witness Kerfoot testifies that he had the control and possession of the lot in question from about December 29, 1856, until and after December 29, 1857, as agent of Lushbaugh and Posey, the landlords of plaintiff in error; built a sidewalk in front of it for Lushbaugh, and put a board on the lot, on which was painted: “For sale by S. H. Kerfoot & Co., 48 Clark street.” This board was put on the lot in question soon after December 29, 1856, and remained till December 29, 1857.

At the time, then, that the judgments of defendants in error become a lien upon this land, to wit, September 28, 1857, the landlord of the plaintiff in error was in possession of the lot by his agent, Kerfoot; had caused a plank sidewalk to be built in front, and advertised it for sale through Kerfoot. Were not these indicia of a possessory title sufficient to have put a prudent man on inquiry? Would not a prudent man, on seeing the notice of sale, have gone to Kerfoot & Co. to find out who claimed the land? If defendants in error had done so, they would have found out the existence of this contract of sale from Pomeroy to Lushbaugh, and that Kerfoot was acting as his agent. And if the sidewalk and notice of sale were sufficient indicia of possession to have put defendants in error on inquiry, then they are chargeable with a knowledge of all the facts that might have been found out by pursuing the inquiry to Kerfoot & Co.'s office, where they might have learned of this unrecorded contract.

And if, by the circumstances aforesaid, the defendants in error were chargeable with notice of the unrecorded contract at the time their judgments became liens, then the deed from Samuel B. Pomeroy to Frederick J. Posey, the landlord of the plaintiff in error, of February 15, 1859, made in pursuance of said unrecorded contract, relates back to December 29, 1856, the date of said contract. Snapp v. Pierce et al., 24 Ill. 156.

Again, a party holding land under a recorded deed, to defend his title against a claimant under a previous unrecorded equitable title, must show that he has an equitable as well as the legal title, and this must be sustained by proof that he purchased the land in good...