112 Ill. 314 | Ill. | 1884
Lead Opinion
delivered the opinion of the Court:
On October 1, 1872, Samuel J. Walker conveyed to Joseph B. Young lots numbered from 20 to 31, inclusive, of block 11, Walker’s dock addition to Chicago.. The consideration named was $125,000, to secure the payment of which, Young gave his notes for. $10,000 for each lot, except No. 20, for which he gave a note for $15,000. He executed a deed of trust on each lot for $10,000, except lot 20, on which he executed a trust deed for $15,000, its price. The deeds of trust were executed to J. Y. Scammon. There being default in payment, sales were made under the several trust deeds, at different dates, and to several persons. On the 14th of July, 1880, those purchasers conveyed the lots to James M. Walker, solicitor of the Chicago, Burlington and Quincy Railroad Company, the consideration being paid by the company. The executrix of Walker, after his death, quitclaimed the lots to the company, and it entered into possession. The deed of trust on lot 24 was not recorded until the 12th of March, 1879; but at the date of the trust deed from Young to Walker the latter was in possession by a tenant, who occupied the lot as a brick-yard. The tenant continued to hold under Walker until the possession was surrendered to the railroad company. There was also a contract given by Young, and of record, which is claimed to have been notice of Walker’s rights, to all persons. On the 4th of March, 1874, the First National Bank of Gfeneseo recovered a judgment against Young and Henry Crawford, in the Superior Court of Cook county, for $6402.92, on four notes the bank held against them. "Andrew Crawford was a director, and president of the bank. A few months before, he had removed to Chicago, and was acting as the agent of the bank at the time the judgment was recovered under his direction. He caused a fi. fa., an alias, and pluries to be issued before and on the 4th of March, 1877. They were all returned no property found. No further execution was issued until in February, 1880, when an alias pluries was sued out, and levied on lot 24 and other property. On the 31st of May, 1880, the lot was sold, under the execution, to appellant, who paid no money on the purchase, but satisfied the judgment, his bid being the amount of the judgment. The bill alleges the title and possession of the railroad company of the lot, that defendant had both actual and constructive notice of the trust deed before he acquired any title to the lot, and the judgment was paid in full and satisfied before the levy was made and the sale had, and concluded with a prayer that appellant’s deed he set aside as a cloud on the title of the company. Defendant, .answered, and a hearing was had on the pleadings and evidence. The court found the issues for the company, and granted the relief sought, and defendant appealed to the Appellate Court, and now to this court.
The questions we propose to consider are, whether appellant, Crawford, had notice, and whether the judgment in favor of the bank was paid before the levy and sale were made, and before he acquired title. The evidence, we think, proves, satisfactorily, both' of these propositions in the affirmative. On the 31st of July, 1873, Young agreed, in writing, to convey all these lots to S. W. Sea, subject to an incumbrance of $130,000, due in four years, from “October next, with interest at seven per cent, payable semi-annually.” This contract was duly recorded on the 2d of August, 1873. It will be observed that the incumbrance referred to corresponds as to the lots to which it attached, the date of payment, rate of interest, and the time of its payment. It was in all things an accurate and precise description of the incumbrance of these trust deeds, except it does not give the date, nature and amount of the incumbrance. We are aware of no decision that has ever held, that to be a notice to put a party on inquiry he must have full, complete and accurate information of the nature, extent and all of the particulars of the incumbrance. On the contrary, where a person contemplates the purchase of property, and is informed that a particular person claims title, or to hold an incumbrance, such information has been held to charge him with notice of the nature and extent of the claim. It pointed out the source from which accurate information could be obtained. In fact, the rule is, that if anything apprises a purchaser or incumbrancer that a particular person claims the property, or an interest in it, the former must pursue that notice to its source, and failing" to do so, he will be charged with all he would have learned had he pursued and investigated the matter to the full extent to which it led. In this case, appellant- must be presumed to have examined the title before the levy and his purchase, and if so, he must have seen this agreement between Young and Sea, and seeing that, he was apprised that the lot was incumbered to a large amount. He was also notified of the sources of -information,—that he had only to apply to Young or Sea and learn the precise nature and extent of the incumbrance. It did not matter that the incumbrance was misdescribed as to the amount.' It informed him that there was an incumbrance on the lot, and it charged' him with notice! Had the agreement stated the incumbrance at less than its true amount, he in all probability would not have been charged beyond the amount stated; but here the incumbrance was stated at more than the claim, unless the interest increased it to the sum named. According to a long line of decisions in this court, too familiar to the profession - to require citation, this agreement charged appellant with notice of the debt against this lot, secured by the trust deed, and such notice, as has been repeatedly held, is as effectual as if the trust deed had been duly recorded.
It is, however, urged, that the execution of the agreement was not proved, nor was the proper foundation laid to authorize a copy to be read in evidence. These specific objections were not made in the trial court, and they come too late on appeal or error. It has been so repeatedly held that a general objection to the admission of documentary evidence goes alone to its pertinency, that it must be familiar to the entire profession; The rule may be found frequently repeated from an early date after the organization of the court, and it must be regarded. as too firmly established to- be disturbed. It is' unfair t-o permit a party to interpose a general objection, and on error urge specific objections that no doubt would have been at once removed on being interposed. Such objections, to be availing, must be interposed on the trial, so as to afford the party offering them the opportunity to remove them, and not to be entrapped by raising them on appeal for the first time.
But if this was insufficient to charge appellant with notice, he had actual notice. He had the trust deed in his possession, and examined its contents. It clearly appears that at one time S. J. Walker pledged to appellant the notes secured by the trust deeds on lots 22 and 23, as collateral security on indebtedness of Walker. Through some inadvertence, Walker sent him the notes and trust deeds on lots 23 and 24. Appellant discovered the mistake, and they were returned to Walker, who then sent him the trust deed securing the indebtedness on lot 22, thus correcting the mistake. Having possession of the trust deed on lot 24, and finding it was not on lot 22, as agreed, he must have read it to have learned that it was not" on lot 22, and in reading it he must have learned that it was on the lot in controversy. There can be no other rational conclusion. There could be no more satisfactory evidence that he had notice, and actual, and not constructive, notice, more certain than by the recording of the deed, and equally accurate.
Again, Jones, Walker’s tenant, was in the actual, open and visible possession. Appellant is presumed to have known the fact, and had he inquired of Jones under whom or what title he held, he would have learned he held under Walker. Had he called on him, he would have learned of bis claim, its nature and extent. Such occupancy has been repeatedly held to charge a purchaser or incumbrancer with notice, and all that it would lead to, if pursued. Appellant, then, had notice, by the record, of Young and Sea’s agreement, by having had actual possession of the deed of trust and by Walker’s possession by his tenant,—and all this before and after the recovery of the judgment under which appellant claims, and also before and at the time of suing out the execution under which the levy and sale were made. The notice charged him with the knowledge of the rights of the railroad company, and those under whom it claims. Their liens were more meritorious, and prior and superior to his.
Without going into a detailed statement of the evidence, we will say it most satisfactorily proves that the judgment was paid before the execution was issued under which the levy and sale were made, and appellant purchased. The evidence shows that appellant sent at one time $1000 as a payment, and it was credited on Young and Crawford’s notes to the bank; at another time $500 in the same manner, and for the same purpose, which was also credited thereon. It is true these amounts were not indorsed on the notes, still they were understood by all parties, and treated as'payments, and a purchase by appellant of an interest in the notes was not spoken of, or even thought of, at the time. A payment once made can not, as against the interests of third parties, be changed to a purchase or other agreement. Afterward, Henry Crawford, whose name was on the notes, and who, Young claimed, was to pay them, pledged, as security for the judgment, two $500 bonds of the city of Wabasha, and afterwards ten more of like bonds for like sums, all of which were after-wards received in satisfaction of the judgment,—and this was all before the levy, sale and purchase of the property by appellant. Thus it is established that there was nothing due on the judgment when it was assigned to appellant, and he was apprised of that fact when he took the assignment.
In any view of the case, the evidence clearly required the decree, and the judgment of the Appellate Court must therefore be affirmed.
Decree affirmed.
Concurrence Opinion
While I concur in the conclusion in this case, I do not approve of all that is said in the opinion.