O'neal v. Boone

• Decision Date: 30 September 1876
• Citation: 1876 WL 10264,82 Ill. 589
• Parties: THOMAS H. O'NEALv.LEVI D. BOONE et al.
• Court: Illinois Supreme Court

82 Ill. 589

1876 WL 10264 (Ill.)

THOMAS H. O'NEAL

v.LEVI D. BOONE et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

On the 18th of June, 1852, Fredrick H. O'Neal made a contract with Stephen Bronson, Jr., to purchase of him one part of the property in controversy, and on the 1st day of July, 1852, he made another contract with him to purchase the remainder of the property. Both contracts were in writing, and placed on record shortly after they were executed. A small sum was paid on each contract at the time it was made, and the residue of the payments were to be made by O'Neal, in annual instalments, in 1853, 1854 and 1855. O'Neal paid the taxes on the property for two or three years, and all the instalments of the purchase money except those due in 1855. Before these matured, he wrote to Bronson, requesting an extension of time within which to make the payments until October of that year, and Bronson replied, agreeing to the desired extension.

It was provided in the contracts that, in case O'Neal should make default, or fail to make any of the payments when due (the times of payment being declared to be an essential part of the contract), or should fail to punctually perform any of the covenants by him to be performed, the contracts and all the covenants and agreements on the part of Bronson should, at his option, or that of his representatives and assigns, be, and they were thereby, declared to be null and void, and no longer binding, and all the rights or interest of O'Neal therein, either in law or equity, should cease and determine, and all payments which might have been made thereon were to be forfeited.

Shortly after Bronson replied to O'Neal consenting to the extension of the payments, he sent O'Neal formal notices, declaring the contracts forfeited in consequence of his failure to make payments at the times specified in the contracts, and thereafter, on the 29th of August, 1855, Bronson conveyed the property by deed with covenants of warranty, excepting, however, back taxes, to Sherman P. Tracy, which deed was placed on record August 31, 1855. O'Neal, who resided at Fredrick, Maryland, received the notices of forfeiture by due course of mail, and, about the 18th of September, 1855, visited Bronson at Chicago, and had an interview with him at the office of J. W. Waughop, O'Neal's agent and solicitor. At that interview, O'Neal reminded Bronson of his consent to the extension of time for the payments, which Bronson acknowledged, and he then attempted to palliate his conduct in declaring the forfeiture, by saying that he had become financially involved, and had conveyed the property to Tracy, as his confidential friend, in order that it might be disembarrassed of other liens, and, at the same time, under his control. O'Neal tendered him, then, in American gold, the amount due on the contracts. Bronson declined to accept the money, but acknowledged that the amount tendered was correct, and directed him to leave it with Waughop, promising to get a deed from Tracy to O'Neal when he should see Tracy. O'Neal then returned to his home, in Maryland, and did not again visit Chicago, with reference to the property, until in 1865. He seems, indeed, to have been in Chicago in 1856, but it does not appear that he then did anything with reference to the property.

On the 28th of September, 1855, Tracy conveyed the property to Berry, and the deed was recorded the next day (the 29th).

In 1851, Bronson, while the owner of an undivided interest in this and other property, as a tenant in common with certain other parties, had executed a mortgage to one Sayre, to secure a large sum of money, and the mortgage was duly recorded at or near the date of its execution. Subsequently, this property was set off to Bronson by decree for partition between him and his co-tenants, so that the mortgage, if still subsisting, attached to this property, and was a prior lien to the claim of title by virtue of the O'Neal contracts. Sayre, by deed dated September 10, 1852, and recorded October 22, 1852, transferred his interest in the mortgage to Magie, covenanting therein, among other things, that he was the lawful holder of the notes secured by the mortgage, and that there was then due and unpaid thereon $7500. Magie, by deed dated October 31, 1855, and recorded November 6, 1855, transferred his interest in the mortgage to Sherman P. Tracy, covenanting therein that he was the lawful holder of certain unpaid notes secured by the mortgage, upon which there was then due the sum of $2500, with certain additional interest.

On the 18th day of December, 1855, Tracy executed a deed, which was recorded on the 19th of January, 1856, purporting to convey the property, by virtue of a sale under the mortgage, and pursuant to the power therein and the several assignments thereof, to A. Judson Higgins, and Higgins, by deed dated December 22, 1855, and recorded March 21, 1857, conveyed the property to Berry.

On the 10th day of October, 1856, Berry conveyed the property to Daniel L. Boone. Daniel L. Boone afterwards conveyed an undivided half of the property to Waller, and on the 16th day of June, 1860, he conveyed the residue to Levi D. Boone, and the deed was recorded immediately afterwards.

Loomis obtained a judgment in the circuit court of Cook county, against Bronson and another, on the 14th of June, 1855. Execution issued thereon within time to preserve the lien of the judgment, and levy of execution was made on the property in controversy. One part was sold to Miller, who received a sheriff's deed therefor on the 21st of May, 1857, which was recorded on the 25th of September, 1857, and the other part was sold to Loomis, who received a sheriff's deed therefor on the 28th of November, 1860, and which was recorded on the 3d of December, 1860. Miller conveyed the interest he held to Loomis, by deed dated May 23, 1857, and recorded September 25, 1857, and Loomis conveyed to Levi D. Boone, by deed dated November 28, 1860, and recorded December 3, 1860.

On the 28th of November, 1855, Tracy executed a deed to O'Neal for the property, but which was not delivered until in 1865; and Bronson also conveyed to O'Neal the property described in the first contract, February 22, 1865, and that described in the second contract, on 27th of February, 1865, and on the 1st of January, 1866, he executed another deed to him to correct an error in that of February 27, 1865. Bill was filed by O'Neal on the 13th of March, 1872, for the purpose of procuring the removal of alleged clouds upon his title, and having Boone declared to hold in trust for him, and to convey to him the title he holds. Boone, Waller and others were made defendants. Answers were filed by Boone and Waller, putting in issue all the material allegations of the bill. Boone claims therein to have been a purchaser, in good faith, without notice of any equities in favor of O'Neal, and sets up the statutes of limitations, and laches on the part of O'Neal, to bar his rights, if any he has.

On hearing, the court decreed that O'Neal had no equity, and that the bill be dismissed.

Mr. LYMAN TRUMBULL, and Mr. J. W. WAUGHOP, for the plaintiff in error.

Messrs. SLEEPER & WHITON, for the defendants in error.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

It is very clear that the evidence fails to sustain the entire theory of the bill. The charge that Levi D. Boone and Bronson agreed, before Bronson sent the notices of forfeiture to O'Neal, and conveyed to Tracy, that Bronson should send the notices of forfeiture, convey to Tracy, have Magie assign the Sayre mortgage to Tracy, and him to go through with the form of a sale and conveyance thereunder to Higgins, and procure the execution of the several other conveyances by which the legal title to the property in controversy was ultimately vested in Boone, is not only unsupported by the evidence, but is positively disproved. Even Bronson, the most unfavorable, and evidently an unfriendly witness to Boone, does not pretend that his acts were, in any degree, prompted by Boone, or that it was anticipated that Boone would acquire the title before the negotiations in 1856, which resulted in the conveyance to Daniel L. Boone.

We are, however, of opinion that, disregarding this charge, the allegations in the bill charging that Boone and those under and through whom he derived title, were purchasers with notice of O'Neal's equity, would have been sufficient of themselves to have called for an answer, and that we are therefore not at liberty to affirm the decree of the court below simply because of the failure of the proof in respect to the other charge.

That O'Neal, as against Bronson, or any one simply occupying his place, is entitled to the property, can admit of no controversy. He purchased, originally, in good faith, paid all that was due, at the times stipulated in his contracts, with the exception of the last payments, and, as to these, Bronson consented to an extension of time, and before its expiration O'Neal tendered him the full amount due, which Bronson has since accepted. But if O'Neal, by his failure to exercise ordinary prudence, suffered Bronson to place a title of record inconsistent with the continuance of his rights as purchaser, and others, without actual knowledge of his rights, and upon the faith of the title as disclosed by the record, in good faith, purchased the property and obtained the legal title thereto, they do not occupy the place of Bronson, but of bona fide purchasers without notice, and their legal title must prevail over O'Neal's equity.

It is claimed the conveyances by Bronson to Tracy, by Tracy to Berry, the assignment of the mortgage by Magie to Tracy, the pretended sale and conveyance thereunder by Tracy to Higgins, and the conveyance by Higgins to Berry, were all voluntary, and that Tracy, Higgins and Berry held...