| Ill. | Jun 15, 1855
As between the county of Peoria and Hamilton, we have no doubt, from the allegations, exhibits and answers, that Hamilton purchased and paid for lots eight and nine, block one, in controversy. While the entries do not specify this arrangement particularly, yet taking the dates of the service in surveying and platting the town, the terms of sale and payment, the entry on the sale book, the price, and the allowance of the order for services, two days after, of the exact price of the lots previously bid off, and the memorandum as part of the allowance, the county order being receivable in full payment, etc., all taken together, with the fact that Hamilton never called for the county order, etc., and we can entertain no doubt that he bid off the two lots with the view to payment for his surveying, and that such was the mutual understanding and arrangement of the parties. These several memorandums are a sufficient writing and signing by the party to be charged therewith, to take the case out of the statute of frauds, and we think sufficiently mutual and certain in the description of, and as to, what property was sold, to be capable of a specific enforcement in a court of equity. 1 John. Ch. R. 274; 9 Paige R. 292; 3 Yerg. R. 23; 2 Vernon R. 416 ; 2 A. K. Marsh. R. 346 ; 4 Cond. R. 144 ; 2 Sumn. R. 293. We should have no hesitation in so holding in this case, and ordering the decree accordingly, if it were not for inter-veiling rights of third persons, who claim to be innocent purchasers, without notice. And such they appear to us to be.
To sustain them as such, however, we must hold that the sale book kept of that sale by the county commissioners’ court, and the order book in which they entered their official acts as a court, were not constructive notice of such sale to subsequent purchasers. The case is strongly put too, that ministerially and individually, as county commissioners, the members of the court had no power, under the laws, to act in relation to the surveying, platting, ordering sales, fixing the terms and conditions of sale, selling and conveying of the lands of the county, in town lots or otherwise, but that their acts, or most of them, for these purposes, must be as a court, and of their acts as such, the law required a record to be kept. That being required to keep, and having made and kept that record, it is notice of what it contains, in relation to the title of the county, to all subsequent purchasers of them. The recording acts for the purposes of information and constructive notice, have not altered or abolished the rules of equity, in relation to actual and constructive notice, by other means than the recording acts. 2 Scam. R. 501; 4 ibid. 117. But while all this is true, it is also true, that the legislature, and not the court, must add, and declare the existence and effect of other records, as constructive notice of title and incumbrance. Such effect is given to judgments, by declaring a lien upon the lands in the county, without declaring the existence of such judgment to bo constructive notice. But it must have such effect as notice, in order to give it effect as a lien, and we must, consequently, so treat and hold it. Such, too, is the effect of the levy of an attachment when followed by a judgment.
So, too, I presume, would be the levy of a fieri facias from another county, when levied before the statute which required the filing of such levy with the circuit clerk and the recorder, and declared its effect as notice to be from such filing. These orders of the county court, and we may admit this sale book, were records; but still every matter of record is not constructive notice of the subject matter of it to all strangers. No such effect has been given to these records by the recording or other laws of the State, nor can such effect be claimed for them, by reason of their affecting the land like judgments, and such mesne and final process referred to. In tracing title to or through the county, as through or from any other vendors, we should go to the recorder’s books, and to the judicial records and levies, where evidences of conveyances, contracts, incumbrances and liens are kept and to bo found. Chouteau v. Jones et al., 11 Ill. R. 323. We conceive that the law would no more require us to search the county records, for contracts or conveyances of land, than it would require us to search the private depository of individual vendors. It may be true that the county commissioners could only bind the county by entries of record, or by actual conveyance, and yet the place to notify and charge strangers with their acts, is the same for them as for individuals, and other corporations who may be able only to bind themselves on the records of their company. It is needless to go into an inquiry as to what acts of the county commissioners’ court are matters of record, and as to whom, and to what extent, they are notice. Persons may purchase of the county, as they do of individuals, at their own hazard, without investigating their title, protecting themselves or not, by covenants ; and for the purposes of defeating the purchaser’s title from the county, by constructive notice or otherwise, the same rules and evidences would apply alike to all, according to the particular facts and circumstances of each individual case.
The county commissioners have been, since 1819, empowered to sell and convey the real estate of the county. See act, 1819, p. 238, Sec. 3. And this power has been continuous. See Rev. Stat. 1845, p. 108, Sec. 26 ; p. 135, Sec. 36. During the same period, deeds and conveyances have been required to be recorded, without distinction as to the character of the vendors, or grantors. See act, 1819, p. 19, Sec. 8, which required them to be recorded within, twelve months. Purple’s Real Estate Stat. 460, Sec. 8, for same, under act of 1807. This time was reduced to six months by act of 1825, and which was in force when this contract was made, on 10th July, 1826. On the 31st January, 1827, the recording act was made to extend to, and embrace, “ all grants, bargains, sales, leases, releases, mortgages, defeasances, conveyances, bonds, contracts, and agreements, of and concerning any lands, tenements or hereditaments, or whereby the same may be affected in law or equityall of which were required to be recorded within twelve months, and were adjudged void unless recorded before a subsequent conveyance to a bona fide purchaser or mortgagee should be recorded. Purple’s Real Est. Stat. 479, Sec. 15. Powers, letters of attorney, or agency, concerning the sale, etc., of land, were required to be recorded. Sec. 16. The time was reduced again to six months, as to deeds and conveyances, by act of 1829, ibid, p. 487, Sec. 4; Rev. Laws, 1833, p. 135, Secs. 15, 16.
By the act of 1833, Purple’s Real Est. Stat., 489, Sec. 5, it was provided that after the first of August of that year, “ all deeds and other title papers, which are required to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice.”
So stands the law now on this subject, digested into chapter 24, Rev. Stat. 1845, pp. 108 and 109, Secs. 22, 28, 24 and 28, embracing in Sec. 26, a power in the county commissioners to convey the real estate of the county, by executing “ deeds, grants, conveyances and bonds,” as a part of the provisions regulating “ conveyances,” and for recording the same. It is wholly inadmissible to exclude the contracts and conveyances of the county commissioners, from the operation of the recording acts, which would be the effect of holding the entry of their bargains upon their own records, as constructive notice. Hamilton should have procured and recorded a contract or deed, so as to give notice and prevent his title being destroyed by a subsequent sale or conveyance. The case of Neilson, Nichols 7 Co. v. Churchill et al., 5 Dana R. 339, referred to in support of the doctrine of records being notice, does not militate with, but supports the principles laid down by us in reference to such judicial records as have become liens upon the land by levy, or of themselves.
The rule requiring a prudent and diligent inquiry by persons having such notice as should put a prudent man upon inquiry, and holding them to abide the consequences of the facts and circumstances which would have been reached by making it, as held in Nants et al. v. McPherson, 7 Monroe R. 599, and Russell v. Petree, etc., 10 B. Monroe R. 186, is fully recognized, but it can have no application here, as there is no proof, or admission of notice, hi the answers of the subsequent purchasers. The bare existence of these orders, on the books, is all that is shown. To give them any effect as notice, would be that of constructive, full notice. In the County of La Salle v. Simmons, 5 Gil. R. 516, the treasurer’s memorandum book of receipts of public money, is not treated as a record, though it was admitted in evidence against the county, because kept under the view and direction of the commissioners. In case of refusal of a decree for conveyance, complainant asks the alternative relief, by decree for value of the land, or the price for which it was re-sold, or the price his vendor paid the county, and in either case, with interest. We think he is entitled to the price of the land received by the county, on the sale to Morton, with interest, from the respective days when paid to the county commissioners. As they have re-sold these lots, after having received payment for them of Hamilton, to innocent purchasers, without notice of Hamilton’s equity, and thereby prevented him from recovering the land itself, they should be treated and held as trustees of the purchase money, and be made to account for it, with interest. This would seem to us to be but just. The statute of limitations cannot avail as a defense. Although equity will adopt the time in analogy to the rule at law, yet an action of ejectment would not be barred, nor would a bill for specific performance between the original. parties. Angelí on Limit. 24 to 29. This may not be a direct trust, of the kind not falling within the statute of limitations ; but in disposing of such a defense, as applicable to the question of refunding the purchase money, or returning the price received for the land on re-sale, we may adopt the analogy to the bar of an ejectment, or bill for specific performance, as more appropriate and equitable than the action of debt for the money, which would shorten the period of defense. But if we date the cause of action from the day of conveyance, and not of sale, the bar is not complete to debt. Angell on Limitations, 508 to 515. The case of Frailey v. Langford et al., 1 A. K. Marsh. R. 862, differs only in the fact, that here are innocent purchasers to prevent a decree for specific performance. The court there would not apply a limitation under twenty years, to a bill for specific performance. Such was the time for ejectment. Stewart v. Jackson, ibid. 27, 59,106, 506 ; 2 ibid. 570.
The sum to be recovered in this case, is not to be likened to ■ the damages recoverable for breach, of covenant of title and seizin or breach of covenant against encumbrances, (for which see Sedgw. on Dam. 158 to 204,) for that might operate as an inducement, or bounty to parties to re-sell land in violation of their engagements, when by its rise, they could repay the purchase money, and retain a large balance.
We think, where there is no question about a want or failure of title in the vendor, nor of encumbrances, but a wanton or careless breach of contract by re-selling the same lands for an advance, that such vendors cannot complain that they are treated as trustees of the proceeds for the benefit of the first vendee, and compelled to account for them, with legal interest; nor could they, if compelled to pay more interest, when shown to have been received by them for the use of the money. See Powell et al. v. Jeffries et al., 4 Scam. R. 390.
Decree reversed, and cause remanded for decree in conformity with opinion of this court.
Decree reversed.