164 Ill. 124 | Ill. | 1896
delivered the opinion of the court:
The plaintiff in error, Henry B. Eastman, in consideration of $1000, on April 25, 1890, obtained a quit-claim deed from Rebecca M. and Reuben C. Rutherford for the premises described in the bill. The deed passed no better or greater title than belonged to the grantors at the time the deed was executed. If they had no title none was transferred by the deed. Moreover, as Littlefield was, at the time the deed was executed, in possession of the premises, Eastman purchased with full notice of all the rights and title of Littlefield. The question here, then, between plaintiff in error, Eastman, and defendant in error Littlefield, is one of title, the former claiming through the Rutherfords under the quit-claim deed of April 25, 1890, and the latter claiming under judgment and mortgage sales and under deeds, wherein the title of the Rutherfords passed to him long before the execution of the deed to plaintiff in error. As the title relied upon by Littlefield is not the same in both tracts of land it will be necessary to consider the title in section 31 separately from the title in section 6.
It will be observed that the lands in both sections were sold on a judgment in favor of Marsh on June 1, 1878. After the expiration of twelve months, one McComb, having obtained a judgment against the Rutherfords, redeemed as a judgment creditor from the Marsh sale, and the lands were again sold on September 18, 1879, and the lands in section 31 purchased by Littlefield and Collins, and on December 2,1879, they obtained a sheriff’s deed for the lands. Prior to this sale and on the 18th of September, 1879, the Rutherfords and Littlefield and Collins executed an agreement in writing, set out in the foregoing statement. It will also be seen by a reference to the statement, that at the time the Marsh judgment was recovered and at the time the agreement was executed, September 18, 1879, the lands in section 31 were subject to a prior lien,—a deed of trust dated August 1, 1877, given by the Rutherfords to George Castle, for §11,000. It also appears that under and by virtue of the trust deed, upon due notice being given, Castle sold the premises in section 31, and at the sale Littlefield became the purchaser for the sum of §11,850, and obtained a deed for the premises. In Turner v. Littlefield, 142 Ill. 630, the validity of this deed was called in question by a bill in behalf of Turner, a judgment creditor of the Rutherfords, to redeem, and after a full consideration we held that Littlefield acquired title under that sale and deed. The facts in this record bearing on the question are substantially the same as were the facts in the Turner case. The Rutherfords have testified on one point in this case where they did not testify in the Turner case, but in view of all the facts presented by the record we do not regard the evidence of the Rutherfords as producing such a change in facts as to authorize us to change the conclusion reached in the Turner case as to the validity of the purchase of Littlefield under the Castle trust deed. We therefore adhere to the conclusion reached in the Turner case, and refer to the opinion in that case for an expres-' sion of our views on the question raised.
We now come to the other tract of land, which is a part of section 6. As has been seen, Rebecca M. Rutherford and her husband, on February 23,1878, executed two deeds of trust on the land,—one to O. H. Browning and one to Eaton Littlefield, for $6000 each. James F. Carrott was made trustee. Both trust deeds bore the same date, but it was recited in the one given to Littlefield that Browning’s deed of trust was a prior lien. On the 12th day of January, 1885, the trustee sold the premises at public auction under the Littlefield deed of trust after giving notice as required by its terms, and the premises were purchased by Littlefield for $6900. Upon making the sale the trustee executed and delivered to Littlefield a deed for the premises. In the following April Little-field purchased the deed of trust held by Browning on the premises, paying therefor $8240. This sale, so far as appears, was in all respects regular and made in strict conformity to the deed of trust. Other parties bid at the sale, but the premises were finally struck off to Little-field, he being the highest bidder. No reason is perceived why the title did not pass to Littlefield under this sale. The validity of the sale is further evidenced by a written lease executed by Littlefield and the Rutherfords on February 4, 1885, which recites that in consideration of one dollar Littlefield rented to the Rutherfords twelve acres, being part of the eighty acres in section 6, from the date of the lease till April 15, 1885, with the privilege to the second party to purchase the same for $10,000 in cash, and that unless so purchased the premises to be surren-" dered to Littlefield on April 15,1885, and containing a recital that “said party of the second part hereby declares that they have already surrendered all of said south half of said quarter section, except above described tract of land, except about twelve acres, to the said party of the first part, he being the owner of the same and legally and equitably entitled to the same, and the same having been long held by us as tenants of said Littlefield.”
After the purchase by Littlefield, and after the execution of this lease fully recognizing the title of Littlefield, the Rutherfords took another step in confirmation of Littlefield’s title. At the request of Poling, who was about to loan money to Littlefield and take security on the land, the Rutherfords, on April 27, 1885, executed á quit-claim deed to Littlefield, conveying all their interest in the land to him. It is difficult to understand why this was done if the Rutherfords still owned the land. If they were the owners, as is now claimed, it is more reasonable to suppose that when they found that Littlefield ■was about to mortgage the lands they owned to secure a debt he was contracting, they would have protested against the action of Littlefield, and instead of furnishing him with facilities to mortgage the land they would have entered a protest.
But independently of these considerations, if the relations of Littlefield and the Rutherfords were of such a character that he could not properly purchase the lands in section 31 at the sale under the Castle trust deed and the lands in section 6 under the trust deed given to him to secure §6000, these sales were not void, but voidable merely. If the sales were irregular or defective the Rutherfords had the right to institute proceedings in apt time to set aside the sales, or they could ratify and confirm them. If guilty of laches their Zac7ies-will be a bar to relief. In Hamilton v. Lubukee, 51 Ill. 415, it was held that a mortgagor should avail himself in apt time of irregularities in the sale of the premises by the mortgagee under a power in the mortgage. A delay of four years after the mortgagor had knowledge of the sale and proceedings under it was held to preclude him from maintaining a bill to redeem. In Dempster v. West, 69 Ill. 613, it was held that after a delay of seven years from the sale of land under a power in a mortgage the mortgagor will be cut off from avoiding the sale for irregularities, in the absence of fraud or an equitable excuse for the delay. In Bush v. Sherman, 80 Ill. 160, it was held that acquiescence, unexplained, for any considerable time, in a sale which is voidable but not void, will be deemed a waiver of all irregularities that may have intervened. In Sloan v. Graham, 85 Ill. 26, where a bill was filed to set aside an administrator’s sale on the ground the administrator purchased at his own sale, it is said (p. 29): “There is evidence in the record tending to prove that John Sloan purchased for his son, and in our opinion it is sufficient to establish 'the fact that the administrator purchased at his own sale. But while we are satisfied, from the evidence, that John Sloan purchased for his son, who was at the time administrator, yet that fact did not render the sale void, but voidable only, and if proceedings should not be instituted in apt time by the heirs of Richard Graham, deceased, who alone had the right to contest the sale, a ratification by them would be presumed.” In Hoyt v. Pawtucket Institution for Savings, 110 Ill. 390, it was held that a delay of four years in filing a bill by the former owner to set aside a sale of real estate under a' deed of trust was such laches as would bar the relief sought. See, also, Irish v. Antioch College, 126 Ill. 474, and Cornell v. Newkirk, 144 id. 241.
Here the bill was filed May 12, 1890. The evidence shows that the trustee’s sale of the land in section 31 was made by Castle, trustee, to Littlefield, on September 23, 1882,-—more than seven and one-half years before the bill was filed. During this time he was in possession of the land, leasing it and using it as his own, and paying taxes from year to year as owner. As to the tract-in section 6, the evidence discloses that the trustee’s sale was made by J. F. Carrott, trustee, to Littlefield, on January 20, 1885,—five years and three months before the bill was filed.- In February after the sale the Rutherfords leased twelve acres of the land, which included the house, and declared in the lease that Littlefield was the absolute owner. They occupied as tenants until March, 1886, when they moved to Quincy, and remained there until November, 1887, when they removed to New York. The Rutherfords knew how Littlefield had acquired title to the lands. Indeed, Rutherford himself was present at the trustee’s sales, and if they desired to contest the sales they were required to proceed in apt time. This they failed to do, and under the authorities they are barred by their laches.
Jackson v. Lynch, 129 Ill. 72, has been cited as an authority by plaintiff in error. We do not think the decision in that case has any bearing on the facts in this.
The judgment of the circuit court was, in our opinion, correct, and it will be affirmed.
Judgment affirmed.
Mr. Justice Carter, having been of counsel for one of the parties in the court below, took no part in the decision of the case.