Pittman v. Gaty
| Citation | 10 Ill. 186,5 Gilman 186,1848 WL 4137 |
| Parties | CHARLES PITTMANv.SAMUEL GATY et al. |
| Decision Date | 31 December 1848 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
EJECTMENT, in the St. Clair circuit court, brought by the appellees against the appellant, and heard before the Hon. Gustavus P. Koerner and a jury, at the April term, 1848, when a verdict and judgment were rendered for the plaintiffs below.
The facts so far as they are material to the determination of the case, are adverted to by the court in the opinion.
J. L. D. MORRISON, and R. S. BLACKWELL, for the appellant:
The possession of Mallows was the possession of Pittman.
A purchaser at the sheriff's sale is chargeable with constructive notice of the title of a third person in the actual possession of the land, claiming under a prior unrecorded deed from the debtor, and he is bound to inquire into the extent of the occupant's interest. Parks v. Jackson, 11 Wend. 442, 466; Tuttle v. Same, 6 do. 213; Hadduck v. Wilmarth, 5 New Hamp. 181; Priest v. Rice, 1 Pick. 164.
The case of Jackson v. Post, 9 Cowen, 120, goes further and decides, that where a judgment debtor had conveyed the land to a third person, who neglected to record his deed before the judgment lien attached, the vendee would hold as against the purchaser at the sheriff's sale, though the latter had no notice, actual or constructive.
Hearsay evidence is clearly inadmissible. 1 Greenl. Ev. §§ 98, 99.
D. J. BAKER, for the appellees:
The lien of the judgment attached and related to the date of the levy of the writ of attachment, or to the time of filing in the recorder's office, the sheriff's certificate of the levy. Martin v. Dryden, 1 Gilm. 188.
If Meacham had, before the issuing of the attachment, conveyed by deed, though unrecorded or fraudulent, the lands levied on, to Pittman, he had no title in himself after the execution of the deed; but the deed, being unrecorded, was not operative as against Meacham's creditors till they were notified of its existence. Rev. Stat. 108, § 23.
Some kinds of hearsay may be, in regard to some matters, proper evidence. As to what is hearsay, see 1 Greenl. Ev. §§ 101, 108.
The appellant's counsel say: “The possession of Mallows was the possession of Pittman.” An unaccountable assumption, indeed--a begging of the question. This was one of the principal, if not the principal, questions to be decided in the case. This is shown clearly by the character of the majority of the instructions given at the instance of each party. It was a main issue before the court which tried the case, and, by their verdict, they have said that Mallows was not the tenant of Pittman, at the time of the filing of the certificate of the levy of the attachment, but was the tenant of Meacham, and paid rent to him, the unrecorded deed to the contrary, notwithstanding. This assumption, then, being wholly unauthorized, the argument of the counsel, based on it, necessarily falls to the ground, having no application to the present case on the part of appellant.
The counsel, arguing from this assumption, say: “A purchaser at a sheriff's sale is chargeable with constructive notice of the title of a third person in the actual possession of the land, claiming under a prior unrecorded deed from the debtor, and he is bound to inquire into the extent of the occupant's interest,” and refers to several authorities to prove this position. This doctrine is unquestionably true. The plaintiffs in this case have no occasion to question its correctness. But, it applies to the foregoing untrue assumption and is based on it, and has no bearing, at least, unfavorable, to the appellees' case, on the questions involved therein; because Meacham's, and not Pittman's tenant was in actual possession of the land in controversy, long after this unrecorded deed was made to Pittman and, at the time of, and long after the levy of the writ of attachment.
The court will observe, the testimony adduced on the trial is not attempted to be given. Nothing is presented in this court, only the rulings and decisions of the court below, on the several questions of law arising during the progress and trial of the cause in that court.
The case by the appellant's counsel referred to in 9 Cowen, of Jackson v. Post, was made by the N. Y. court, under the recording act of that State, which declares the unrecorded deed to be void only as against a bona fide purchaser or mortgagee, for a valuable consideration, who had recorded his conveyance. It has direct reference to the provisions of that act, and does not hold good or apply to a case arising under the statute of this...
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Conlee v. McDowell
... ... Dutton v. Warschauer, 21 Cal. 609. See, also, Hanly v. Morse, 32 Me. 287; Pittman v. Gaty, 10 Ill. 186;Landers v. Bolton, 26 Cal. 419. And such, we think, is the general rule, to which, however, there are numerous exceptions, one ... ...
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...was virtually saying to the jury that such evidence did not prove a fee simple in the land. Jarrot v. Vaughn, 2 Gilm. 138; Pittman v. Gaty (10 Ill. 186); Whitesides v. Divers, 4 Scam. 336. But whether the instruction was rightly refused or not, the court will look into the evidence, the who......
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Conlee v. McDowell
... ... inquiry as to the landlord's title." Dutton v ... Warschauer, 21 Cal. 609. See also Hanly v ... Morse, 32 Me. 287. Pittman v. Gaty et al., 10 ... Ill. 186. Landers v. Bolton, 26 Cal. 393. And such ... we think is the general rule, to which, however, there are ... ...