18 Ill. 343 | Ill. | 1857
We might, perhaps, satisfactorily place our affirmance of this decree upon the ground of notice proved to the subsequent purchasers, but we choose to place it on another ground. The complainant’s equitable title to the land in question is clearly established, and indeed is not controverted, but the defense is placed upon the ground, that the defendants also have an equitable title, with which, although junior to that of the complainants, they have united the legal title. If this be true, their legal title must prevail over the complainant’s mere equitable title. The question to be considered is, whether the defendants are subsequent bona fide purchasers, for a valuable consideration. This is for them to show in their defense, for the complainant has made out his case when he has made out his equitable title. I cannot better express the rule of law on the subject than by quoting the language of the supreme court of the United States, in the case of Boon v. Childs, 10 Peters’ It. 211. After stating that a court of equity will protect the legal title fairly obtained, against a mere equitable title, however meritorious it may be, proceeds, “But this will not be done on mere averment or allegation; the protection of such bona fide purchaser is : necessary only when the plaintiff has a prior equity, which can be barred or avoided only by the union of the legal title with an equity, arising from the payment of the money and receiving the conveyance, without notice, and a clear_con- . science. It is setting up matter not in the bill; a new case is presented not responsive to the bill, but one founded on a right and title, operating, is made out, to bar and avoid the plaintiff’s equity which must otherwise prevail. 9 V. 33, 34. The answer setting it up is no evidence against the plaintiff, who is not bound to contradict or rebut it. 14 J. R. 63, 74; 1 Munf. R. 396, 397; 10 J. B. 544, 548; 2 Wheat. R. 383; 3 ibid. 527; 6 ibid. 468; 1 J. C. 461. It must be established affirmatively, independently of his oath. C. J. B. 559; 1 J. B. 590; 17 ibid. 367; 18 ibid. 532; 2 J. C. 87, 90; 4 B. C.75; Amb. R. 589; 4 V. 404, 587; 3 J. C. 583. In setting it np by plea or answer it must state the deed of purchase, the date, contents and parties briefly; that the vendor was seized in fee and in possession; the consideration must be stated, with a distinct averment, that it was iona fide and truly paid, independently of the recital in the deed. Rotice must be denied previous to, and drawn to the time of paying the money and delivery of the deed, and if notice is specially charged, the denial must be of all circumstances referred to from which notice can be inferred, and the answer or plea show how the grantor acquired title.” The rule here laid down prevails with us, except as to the possession of the grantor, which has been dispensed with by our statute, but I have made the quotation principally to show that the- duty devolves upon the defendants, to establish not only that they have a conveyance, legal in form, but that they have actually paid for the land. It is not sufficient even that they may have secured the payment of the purchase money. They must have paid it, in fact, before they had notice of the complainant’s prior equitable title. The answer which was given upon the argument, to this objection was, that the bill only charges notice and does not charge that they had not paid the purchase money, or in any other way impeach their equitable right to hold their legal title. I have selected the case above referred to, because in that case the report shows that the bill was precisely like this, in the particular referred to. On page 206, the court says, “In the amended bill the plaintiffs charge the purchase from Rewland and wife to have been made fraudulently and with notice of the title ;” and this is all the specification of fraud which is given. And such is the precise case here. The subsequent purchase, is charged to have been fraudulent and with notice. The substance of the charge is the fraud, which must be rebutted by the defendant, at least by the establishment of such facts as the evidence of which are supposed to be peculiarly within the possession or control of the defendant. Many of the cases state, that the defendant must show that they purchased without notice, but upon principle I do not think that they ought to be required to show this affirmatively, for that, from the nature of things in most cases, would be impossible, and especially in this state, where the party holding an equitable title may have it recorded; if he neglect to do so, and thereby give the legal notice of his interest to all the world, the presumption may well be indulged, that the subsequent purchaser had not notice. But the case is quite different when we come to the proof of the fact of the payment of the purchase money, which, as we have seen, is an essential element in that equity which must exist in order to support the legal title which he attempts to uphold. The defendant must be presumed to be able to prove the payment , of the purchase money, if he has made it, and there is neither hardship nor injustice in requiring him to make out his equitable claim, at least so far as he may be presumed to have the ¡ facilities for doing so. If he has not paid the purchase money, Í no wrong is done him by taking from him a legal title which ihas cost him nothing. If the title is taken from him and given to one who is meritoriously entitled to it, he will thereby be enabled to defend against his vendors’ claim for the purchase money. Here even the answer does not aver that one dime of the purchase money has ever been paid, and hence it fails to show a sufficient defense to the case made by the bill and the proofs, and for that reason it might have been excepted to. But by waiving this objection to the pleading, the complainant did not waive his right to have a legal cause shown to defeat the equity shown by the bill and proofs.
We think it was incumbent on the defendants to have shown in their answer and by proofs, or if the insufficiency of the answer was waived, they should have shown by the proofs, at least, that they had paid for the land, and that hence they have, in good conscience, as much right to the land as the complainant, and that it would be as hard for them to lose what they had paid as for the complainant.
For the reason that the defendants have failed to show that they paid anything for this land, we cannot say that they have any equity to support their legal title, and that, consequently, they ought not to retain it against the equitable title of the complainant.
The decree must be affirmed.
Decree affirmed.