Lightcap v. Bradley

• Decision Date: 19 October 1900
• Citation: 58 N.E. 221,186 Ill. 510
• Parties: LIGHTCAP v. BRADLEY.
• Court: Illinois Supreme Court

186 Ill. 510

58 N.E. 221

LIGHTCAP

v.BRADLEY.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from circuit court, Fulton county; Jefferson Orr, Judge.

Action by H. W. Lightcap against Lydia Bradley. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Boggs, C. J., and Wilkin, J., dissenting.

Wallace & Lacey, for appellant.

Peck, Miller & Starr and Hammond & Wyeth, for appellee.

CARTWRIGHT, J.

Five ejectment suits were commenced by the appellant, H. W. Lightcap, in the circuit court of Mason county, on July 13, 1895, against tenants of the appellee, Lydia Bradley. The venue in all the cases was changed, on motion of the defendants, to Fulton county, and appellee was afterwards substituted as defendant in each of said cases. The suits were consolidated in the circuit court of Fulton county, by agreement of the parties, under the title of ‘H. W. Lightcap v. Lydia Bradley.’ A jury was waived, and the cause was tried by the court. There was a finding of not guilty, and the court, after overruling a motion for a new trial, entered judgment against the plaintiff for costs, and this appeal followed.

In the consolidated action the plaintiff claimed title in fee simple to the N. E. 1/4, and the N. E. 1/4 of the S. E. 1/4, of section 22, the S. 1/2 of section 23, and the N. 1/2 of the N. 1/2 of section 26, all in township 23 N., range 6, in Mason county. The defendant pleaded ‘Not guilty.’ At the trial it was stipulated that Benjamin S. Prettyman on October 8, 1867, was the owner of the land in controversy, in fee simple, by title deducible of record from the United States, and that he was the common source of the titles claimed by the respective parties. The plaintiff, to maintain the issues on his part, proved a conveyance of said lands from Prettyman and wife, dated August 13, 1868, to Absalom McCune; a deed from said Absalom McCune and wife to said Benjamin S. Prettyman, of the same lands, dated November 30, 1868; and a quitclaim deed thereof from Benjamin S. Prettyman to plaintiff, dated September 4, 1893,-all of which deeds were duly acknowledged and recorded. The defendant, to maintain the issues on her part, made proof of a trust deed from said Absalom McCune, dated August 13, 1868, conveying said lands to E. G. Johnson as trustee, to secure the payment of three promissory notes aggregating $15,000, drawing 10 per cent. interest, and payable to the defendant, Lydia Bradley. The defendant claimed title through the trust deed and the following facts established by the evidence: In March, 1872, the defendant, by said E. G. Johnson, her solicitor, the trustee named in the trust deed, filed a bill in the circuit court of Mason county against said Absalom McCune, Benjamin S. Prettyman, and others, to foreclose the same. At the August term, 1879, of said court a decree of foreclosure was entered in that suit, in which the court found that there was due from said Absalom McCune on the promissory notes $31,500, and ordered that in default of the payment of that sum, with interest and costs, within 30 days, the lands should be sold by the master in chancery of said court; that the master on making such should execute a certificate of purchase to the purchaser, specifying the lands purchased, and the time when the purchaser would be entitled to a deed unless redemption should be made according to law; that the defendant should be forever barred and foreclosed from all equities of redemption if the premises were not redeemed according to law; that at the expiration of 15 months next after the day of sale, if the premises should not be redeemed, the master should make a deed to the holder of the certificate; that upon the execution of such deed the grantee therein should be let into the possession of the premises; and that Absalom McCune should remain liable for the payment of any deficiency. In pursuance of said decree the master sold the premises to the defendant for $10,000 on October 27, 1879, and executed a certificate of purchase to her, as directed by the decree. The master reported the sale to the court, and his report was approved and the sale confirmed on November 23, 1879. The lands were wild lands and unoccupied, and about two months after the sale John Coddington went into possession of them as tenant of the defendant. This was about January 1, 1880, and defendant has been in actual possession, by her tenants, since that time until the commencement of the suit. The lands were not redeemed, and no deed was ever made to her on her certificate of purchase. She paid all the taxes on the land from the year 1884 to 1893, inclusive. The trustee, E. G. Johnson, died intestate in 1885. In the spring of 1894 the defendant made application to the widow and heirs of said trustee to sell the premises under the power conferred on the trustee by the trust deed. The sale was made by said widow and heirs, and the defendant bid for the premises $35,000. On June 11, 1894, said widow and heirs of the trustee executed a quitclaim deed to the defendant, reciting the trust deed and the sale made by them, and purporting to convey to the defendant all the title of Absalom McCune at the time of the execution of the trust deed, and the title thereby conveyed by him to said trustee.

Only legal titles can be considered in this action, and the plaintiff must recover upon the strength of his own title. He proved a connected title in fee simple to the premises, deducible of record from the United States, and made out a prima facie case entitling him to recover unless some better title was proved by the defendant. More than 14 years had elapsed from the date when the redemption expired under the master's sale, and the defendant had never obtained a deed on her certificate of purchase, but had failed and neglected to take out such deed. Section 30 of chapter 77 of the Revised Statutes provides that, when the premises mentioned in any certificate of purchase shall not be redeemed in pursuance of law, the legal holder of such certificate shall be entitled to a deed therefor at any time within 5 years after the expiration of the period of redemption, and when a deed is not taken within such 5 years the certificate shall be null and void. It is not denied that the certificate of purchase became null and void under this statute, but defendant relied upon four defenses, which it is claimed she established by the evidence: First, under section 6 of chapter 83 of the Revised Statutes, in regard to limitations, that the trust deed from McCune to Johnson, the decree of sale, and certificate of purchase, constituted color of title, which, coupled with her possession and payment of taxes for 7 successive years, made her the legal owner of the lands, to the extent and according to the purport of her paper title; second, under section 4 of the same act, that her possession and actual residence, through her tenants, for 7 successive years, having a connected title, in law or equity, deducible of record from the United States, by virtue of the same trust deed, decree, and sale, barred the action of plaintiff; third, that she had the paramount legal title under the deed from the widow and heirs of Johnson, the trustee; fourth, that she was mortgagee in possession after condition broken, and entitled to possession as such. These defenses all rest upon the trust deed and the subsequent proceedings under it, and are so connected that the principles applicable to one are largely controlling as to the others.

To make out the first defense claimed, it is essential for the party claiming the benefit of the limitation to prove a paper title which on its face at least purports to convey title. To establish such a paper title, it appears to be first insisted that the trust deed was a conveyance of the fee to Johnson, with only the equitable right on the part of the mortgagor to redeem; that upon default the fee-simple title at law was in the trustee, and that such title remained in him, unaffected by the decree of foreclosure and sale, and notwithstanding the sale to defendant; and that defendant held possession under that title. Leaving out of consideration the effect of a mortgage in the statutory form, it is true that a mortgage or trust deed like the one in question here, which purports to convey title, does, as between the mortgagor and mortgagee,convey such title; but it is only a qualified conveyance of the land, and the mortgagor parts with the title only as security to his creditor, and during the existence of his debt or obligation. In the development of the law of real-estate mortgages in England, the mortgage was at first a pledge of land, usually requiring a judgment to complete the transfer of title and to vest it in the mortgagee. Afterwards a form of mortgage came into use which vested title of itself, and the pledge changed into an estate in fee, without judicial foreclosure, upon the mortgagor's default. This mortgage vested absolute title in the mortgagee upon condition broken. Courts of equity, however, recognizing the purpose of the mortgage as merely a pledge to secure a debt, established a right of the mortgagor to redeem. They created a new estate, in the form of the equity of redemption, and a remedy for the creditor to cut off this estate. A proceeding was devised to extinguish the mortgagor's right to redeem, and to vest title in the mortgagee, and this was the proceeding now known as ‘strict foreclosure.’ 9 Enc. Pl. & Prac. 118. Equity assumed jurisdiction to relieve the mortgagor against a forfeiture upon default, and he was relieved from it on payment of the debt. 1 Jones, Mortg. § 8. Courts of law, following the lead of courts of equity, have adopted many equitable principles as to the titles of the respective parties, and at law the title of the mortgagee can be used only for the purpose of securing his equitable rights under it. ‘As to all persons except the mortgagee and those claiming under him, it...