28 Ill. 367 | Ill. | 1862
Admitting, for the present, that as between the parties to a deed, and even as to third persons with notice, it is competent to show by parol, that the consideration and date of the deed, as expressed on its face, are different from the true consideration and date, in order to affect such third person, with such facts as do not appear on the face of the deed, there should he clear proof that he had knowledge of such extraneous facts thus proved by parol, and not appearing upon the face of the deed, before he can be affected by them. Now it is claimed that this mortgage was given to secure the purchase money of the land, and was executed at the same time that the deed was executed. We now have the mortgage before us, and upon its face it shows that it was given to indemnify the mortgagee against loss, which he might incur by reason of his having executed certain bonds as security for the mortgagor, and the date of the mortgage is nine days subsequent to the date of the deed, and three days subsequent to the date of the acknowledgment of the deed. The date of the acknowledgment of the mortgage is the same as that of the mortgage itself. Prima facie, at least, the object of this mortgage was not to secure the purchase money of the land, nor did it appear to have been executed at the same time with the deed, so that the execution of both might constitute one transaction. It was the duty of the purchaser at the sheriff’s sale, and his grantees, to examine . the records, and they are chargeable with notice of all the facts of which the mortgage could inform them. On its face, this mortgage did not show that it created a lien prior to that / of the judgment. When the purchaser saw this was so, he was not bound to inquire whether the mortgage did not express on its face a falsehood. He was not bound to suspect \ that the mortgage was a trap to mislead him. If he is to \ be charged with any extraneous facts, qualifying or contradicting the face of the mortgage, it should only be done upon clear and satisfactory proof that he had actual knowledge of such facts. Such proof is entirely wanting in this case. For aught that appears, the land was purchased at the sheriff’s sale, upon the faith of the face of the record. If we are right in the principles we have stated, then the fourth instruction asked for the defendant should have been given without qualification. It is this :
“ That the mortgage from Ambrose to Hoot does not purport on its face to be given to secure the payment of purchase money, but for an entirely different consideration, and even if the jury believe, from the evidence, that said mortgage was in fact given to secure the payment of purchase money, and executed at the same time with the deed from Morgan to Ambrose, such facts cannot affect the rights of the defendant, and the jury must find for the defendant, unless they also believe, from the evidence, that the defendant had notice of such facts prior to his purchase of said land, which notice is not to be inferred, but must be proven by the plaintiff.”
This instruction the court qualified, as follows: “ But the recording of the mortgage before the purchase at the sheriff’s sale, if such fact is in proof, is sufficient to put the purchaser on his guard.”
In this, we think the court was undoubtedly wrong. It could not put him on his guard in reference to a different state of facts than those expressed on the face of the mortgage, but on the other hand was well calculated to induce him to repose in security upon .those facts. It was upon this constructive notice, thus intimated by the court to be sufficient to chai’ge him, that the jury found a verdict for the plaintiff.
But it is insisted that the judgment was satisfied, and the lien destroyed, by the levy upon sufficient personal property to satisfy it. Such a levy is not an absolute satisfaction of the judgment, and where without any fault of the sheriff or of the plaintiff, or, at least, if by the instrumentality of the defendant, the property levied upon cannot be made available to the payment of the judgment, it is not a satisfaction. Here, by the action of the judgment debtor and this mortgagee, the property was taken from the custody of the sheriff, and never returned to him, as it was their duty, under the law and their bond, to have done. This was no satisfaction.
Again, it is claimed, that while judgment was pending before this court on appeal, it was not an existing lien on the property, and that during that time the mortgage lien attached, and thus acqxxired a priority over the judgment. The appeal did not vacate or destroy the lien of the judgment. It mex-ely suspended its execution. It was in full force all the time, as a vital judgment of the court, not only capable of holding all liens to which it attached at the term of its rendition, but it was capable of attaching to other property of which the judgment debtor might become the owner in the meantime, and thus subject such newly acquired property to its influence.
The judgment must be reversed, and the cause remanded.
Judgment reversed.
