Stagg v. Small
| Decision Date | 30 June 1879 |
| Citation | 4 Ill.App. 192,4 Bradw. 192 |
| Parties | BENJAMIN STAGGv.DANIEL SMALL ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Opinion filed July 16, 1879.
Messrs. BROWN & MEERS, for appellant; that a valid contract for the sale of real estate is equivalent in equity to an actual conveyance at law, cited Sutherland v. Harrison, 86 Ill. 368; Lombard v. Chicago Sinai Cong. 64 Ill. 477; Baker v. Bishop Hill Colony, 45 Ill. 264; Baldwin v. Pool, 74 Ill. 97; Borders v. Murphy, 78 Ill. 81; Seton v. Slade, 7 Ves. 214; Rood v. N. Y. R. R. Co. 18 Barb. 80; Fitzhugh v. Maxwell, 34 Mich. 138; Dart on Vendors, 125.
Open, notorious and visible possession of real estate is notice to subsequent incumbrancers or purchasers of all claims; White v. White, 11 Chicago Legal News, 249; Doyle v. Teas 4 Scam. 202; Smith v. Heirs of Jackson, 76 Ill. 254; Russell v. Ransom, 76 Ill. 167; Partridge v. Chapman, 81 Ill. 137; Merrick v. Wallace, 19 Ill. 486; Morrison v. Kelly, 22 Ill. 610; Lumbard v. Abbey, 73 Ill. 177; Doolittle v. Cook, 75 Ill. 354.
Possession with valuable and permanent improvements will take a verbal contract for sale of lands out of the Statute of Frauds: Adams' Eq., 86; Bright v. Bright, 41 Ill. 97; Fleming v. Carter, 70 Ill. 286; Hamilton v. Rook, 62 Ill. 139; Dart on Vendors, 477; Kurtz v. Hibner, 55 Ill. 514; Hawkins v. Hunt, 14 Ill. 42; Wood v. Thornly, 58 Ill. 464.
A vendor's lien is personal and cannot be assigned: Richards v. Leaming, 27 Ill. 431; Keith v. Horner, 32 Ill. 524; Dayhuff v. Dayhuff, 81 Ill. 499; McLaurie v. Thomas, 93 Ill. 291.
The contract and possession constitute a legal title; Staley v. Murphy, 47 Ill. 241; Stow v. Russell, 36 Ill. 18.
Mr. G. D. A. PARKS, for appellees; that appellant was bound to inquire as to the title of his vendor, and hence must be held to knowledge of the vendor's lien, cited Williams v. Brown, 14 Ill. 201; McLaurie v. Thomas, 39 Ill. 291.
The loan being to pay the purchase money, appellee's trust deed is clothed with the equity of a vendor's lien: McCormick v. Wilcox, 82 Ill. 213; Charles v. Lamberson, 1 Iowa, 463; 1 Am. Law. Reg. 650; Curtiss v. Root, 20 Ill. 521; Christie v. Hale, 46 Ill. 117; Broadwell v. Broadwell, 1 Gilm. 599; Mulvoy v. Gibbons, 87 Ill. 382; Jeneson v. Jeneson, 66 Ill. 259; Beach v. Shaw, 57 Ill. 17; Shaver v. Williams, 87 Ill. 472; Dyer v. Martin, 4 Scam. 147; McLaurie v. Thomas, 39 Ill. 291; Beebe v. Austin, 15 Iowa, 477.
Appellant's rights were subject to the original lien, and he is not injured by a change in the form or even the parties to it: Flower v. Elwood, 66 Ill. 438; Fitts v. Davis, 42 Ill. 391.
He who seeks equity must do equity: Phelps v. Harding, 87 Ill. 445; Frisby v. Ballance, 4 Scam. 287; Fanning v. Dunham, 5 J. C. 141; Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 Ill. 205; Altes v. Hinckler, 36 Ill. 266; Hunt v. Rowland, 28 Iowa, 350; Snyder v. Griswold, 37 Ill. 216; Cushman v. Sutphen, 42 Ill. 256; Henderson v. Bellew, 45 Ill. 322; Wickiser v. Cook, 85 Ill. 68; Gibson v. Golds, 27 E. L. & Eq. 596; Mulvey v. Gibbons, 87 Ill. 367; 2 Story's Eq. 693.
Appellant is only entitled to insist that the lot last sold shall, to its full extent, be first applied in payment of the incumbrance, leaving his lot liable only for any deficiency: Guion v. Knapp, 6 Paige, 35; Patty v. Pease, 8 Paige, 277; Taylor v. Short, 27 Iowa, 362; Parkman v. Welch, 19 Pick. 231; Hawke Snydaker, 86 Ill. 197.
Commissions paid by the borrower for procuring a loan do not render the transaction usurious: Ballenger v. Borland, 87 Ill. 513; Condit v. Baldwin, 21 N. Y. 224; Eddy v. Badger, 10 Chicago Legal News, 323.
Where interest has accrued and an action may be brought for its payment, the debtor may stipulate for continued forbearance, and an agreement to pay interest on such interest forborne is valid: Haworth v. Huling, 87 Ill. 26; Booker v. Gregory, 7 B. Mon. 439; Mowery v. Bishop, 5 Paige, 98; 2 Parsons on Con. 429; 1 Hilliard on Mortgages, 424.
Where such interest has been paid it cannot be made the subject of objection by third parties: Henderson v. Bellew, 45 Ill. 322.
Before the trustee's sale could be enjoined it should have appeared that the trustee had the ability and threatened to violate his trust: 2 Jones on Mortgages, § 1801; High on Injunctions, § 10; Tooke v. Newman, 75 Ill. 219.
As to the power of a court of chancery to award costs: Howard v. Bennett, 72 Ill. 297; Frisby v. Ballance, 4 Scam. 287; Harper v. Ely, 70 Ill. 581; 3 Daniel's Ch. Pr.
There should have been a tender of the amount due or an offer in the bill to pay: 2 Jones on Mortgages, § 1806.
This was a bill in equity, filed in the Circuit Court of Will County, December 1st, A. D. 1877, by appellant against appellees, for the purpose of enjoining a sale which was then advertised under trust deed, executed by James Stagg to Daniel Small, on the premises in controversy, dated November 24, 1871, and also for the purpose of declaring void the trust deed as to the premises claimed by appellant, and for general relief. On final hearing the bill was dismissed by the Court below, and this appeal was taken.
The substantial facts in the case as appears from the bill, answer and the evidence, are as follows:
It appears that in March, 1871, one Aldrich was the owner in fee of the following described real estate, to wit: beginning at the N. W. corner of block 1, in Alden's addition to the city of Wilmington; thence easterly along the north line of said block 13 rods; thence southerly parallel with west line of said block 8 rods, thence westerly parallel with the north line of said block 13 rods; thence northerly 8 rods, to the place of beginning, in the county of Will.
That by verbal contract Aldrich sold the said real estate to James Stagg for $2150, and that before giving the trust deed in question, Stagg had paid Aldrich $1000 on said purchase. That in March, A. D. 1871, Aldrich had given up possession of said real estate to James Stagg; that after such purchase and taking possession by James Stagg, the latter sold for the sum of $400 a portion of said real estate to appellant, described as follows, to wit: beginning at a point on the north line of said block, 107 feet 6 inches from the N. W. corner; thence southerly at right angles 8 rods; thence easterly at right angles 53 feet 6 inches; thence north at right angles 8 rods to north line; thence west on said line to the place of beginning.
Of this last tract of land the appellant took actual possession and marked it off, and in April, 1871, made garden on it. The contract of purchase however, was verbal.
About the last of August or the first of September, 1871, appellant dug a cellar on the lot and commenced building a house on it, and was actually at work on it November 24, 1871, the date of the trust deed. The house was completed in the early part of winter of the same year, costing $1400 to 1500.
Sometime in the spring of 1872, appellant paid James Stagg who was his brother, in full for the said lot, without any notice of appellee's trust deed having been given. On the 24th of November, A. D. 1871, James Stagg executed the trust deed in question to Daniel Small, trustee, for use of Darius Small, to secure the payment of $1200, covering all the real estate purchased by James Stagg of Aldrich. This deed of trust was duly recorded in the same month in which it was executed.
The money secured by this deed of trust was money loaned, and was used by James Stagg to pay off the claim of Aldrich.
On the 25th of November, 1871, James Stagg paid Aldrich in full for the land purchased of him, and got his deed for the same on that day. Appellant got his deed from James Stagg and wife, on the 1st day of March, 1872, but it was not acknowledged by James Stagg and wife till the 16th of March, 1874, for the fear on part of James that he would get himself into trouble on account of having made the trust deed.
A portion of the real estate not sold to appellant and included in the trust deed, was afterwards sold to Carrie P. Linten by James Stagg, and the proceeds applied as a credit on the note, secured by the trust deed.
The sale of appellant's lot, and the balance of the real estate covered by the deed of trust and not sold to Carrie P. Linten, was advertised to be sold under the trust deed, December 3, 1877.
The question in this case is, did Small in any way succeed to the vendor's lien held by Aldrich on his real estate for the purchase money? From the mere fact that James Stagg applied the money borrowed of Darius Small to pay off Aldrich, does it follow that the vendor's lien became transferred from Aldrich to Small? Or does Small in any way become entitled to hold up such a lien in equity, and have a right to compel payment of it to himself? We think not. It is a well settled principle that a vendor's lien is not assignable by the vendor to any third party. From the mere fact of its being assigned, it becomes at once discharged as a lien. A vendor's lien is personal and cannot be conveyed by deed or assignment, by contract. Wing v. Goodman, 75 Ill. 159. The evidence in this case does not even show that Small, at the time the trust deed was executed to him, depended on the vendor's lien for his security. There is no evidence that he even exacted that the money loaned should be paid to Aldrich in discharge of the latter's claim. He paid it over to Stagg, and Stagg paid it, of his own...
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