Mcnary v. Elizur Southworth.
| Decision Date | 31 January 1871 |
| Citation | 58 Ill. 473,1871 WL 7955 |
| Parties | DANIEL MCNARYv.ELIZUR SOUTHWORTH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Montgomery county; the Hon. JOSEPH GILLESPIE, Judge, presiding
In 1836, one Harris owned the premises in litigation, and attempted to convey the same to one Blair, but in the deed failed to name a grantee. This deed was recorded, and Blair went into possession, and subsequently conveyed to O'Connell. The latter gave a mortgage to Watson, with a power to sell at public sale; under this power, Watson conveyed to Crawford by a private sale. The latter, after occupancy for some time, reconveyed to Watson, and Watson sold to appellant; O'Connell sold to Southworth, and the latter filed a bill to redeem from the mortgage made by O'Connell to Watson, and for an account of the rents and profits of the land. While the action was pending, McNary obtained a quit claim deed from Harris, and complainant discovering it, filed a supplemental bill, praying for relief against that deed, also charging it to be a fraud upon his rights. At the hearing, redemption was decreed, and for an accounting for the rents and profits, and the deed from Harris to appellant was set aside. To reverse this decree, this appeal was prosecuted
Mr. A. N. KINGSBURY, for the appellant.
Mr. G. B. BURNETT, for the appellee.
This is a controversy as to the ownership of certain real estate. The purchase of appellant was prior in time, and he paid for the property $310. Appellee paid $100. Both parties derive title from a common source--one O'Connell. In 1861, he mortgaged to one Watson, with the power to sell at public sale. In 1863, Watson conveyed to one Crawford, who reconveyed to Watson in 1864; and Watson, in 1864, sold and conveyed to appellant; O'Connell, in 1865, sold and conveyed to appellee. One Harris attempted to convey to Blair, but omitted to insert the name of the grantee in the deed, and Blair conveyed to O'Connell. During the pendency of the bill, appellant procured a deed from Harris.
The only question to be determined, is, was appellant a bona fide purchaser, and had he such an equity as to entitle him to buy in an outstanding title?
The sale to Crawford was private, but the proof does not show appellant had a knowledge of such irregularity. One witness testified, that appellant informed him he purchased of Watson, and that “Watson bought at a trustee's sale, he being the trustee.” Another one testified, that he informed appellant of Watson's title.
Opposed to this, is the positive evidence of Crawford, that he purchased from Watson, also the mortgage, the trustee's deed to Crawford, and the occupancy of Crawford at the time of appellant's purchase.
Appellant had the right to infer, from the possession of Crawford and the chain of title, that the...
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