37 Ill. 473 | Ill. | 1865
delivered the opinion of the court:
This contest grows out of claims to the land in controversy, based upon two' conveyances made by the same vendor, at different times to different persons Menard, in 1844, conveyed the lots to Doolittle, the father of Defendants in error. This deed was, however, not recorded until the 22d day of September, 1858. He again sold the land to Bailey on the 1st day of September, 1858, and this latter deed was recorded on the following day. Bailey conveyed the premises to Milner on the 23d day of October, 1858, and the deed was recorded on the same day. Milner sold to Prettyman by deed dated the 1st day of February, 1859, which was recorded on the 7th day of that month. Prettyman sold the premises to Priddy by deed of the date of the 17th of May, 1859, which was recorded on the 26th of that month. Priddy conveyed to plaintiff in error on the 6th of ¡November, 1860, and his deed was recorded on the 7th day of the following December.
Defendants in error on the trial below offered in evidence the deed from Menard to their father; but it was rejected for the want of a seal to the certificate of acknowledgment of the notary public before whom it was attempted to be executed. To prove its execution, Menard, the grantor, was called as a witness. It was objected that he was incompetent as a witness because the deed contained covenants of warranty, but the court, against objection, admitted him and . allowed him to testify, which is now assigned as error. We are aware of no case which has gone the length of permitting the grantor by deed containing covenants for title to give evidence in a case in which the validity of the title is involved. ■ Such a person has, it is believed, always been held to have a disqualifying interest in the event of the suit.
. It is insisted in this - case, that the witness is called against his interest. That it was his interest to invalidate the deed, and thereby avoid his covenants. This is not the true attitude of the grantor. It is obviously his interest to maintain the title which he covenanted to make good. Nor does it follow, that to defeat a recovery under the deed would absolve him from liability on Ms covenants. A failure to recover would fix the failure of title, which he could not dispute. And it -would afford a material link in the chain of evidence to establish his liability. Hor could he in an action of covenant on the deed establish the deed to have been void, by showing that the land could not be recovered under this deed. And where it is shown that no title passed by the execution and delivery of the deed, then the liability is established under his covenants.. It does not follow, that because the deed was not sufficiently proved to bind third parties, that it therefore was not binding between the parties to the instrument. As between them, and as a covenant, it might be proved as any other written instrument, to entitle it to bo read in evidence. In an action of covenant it would require a less degree of proof, than as a deed sufficient to pass title to land. Thus it will be seen that to defeat a recovery under the deed would not defeat the right of recovery on it as a covenant.
It was also urged that the court erred in permitting Menard to testify that he gave Bailey notice at the time he executed the quit claim deed to him, that he had sold all the lands he had formerly owned in Pekin, and had no property at that time in the city. The object of this evidence was to defeat the title of plaintiff in error,- by showing that he had notice at the time he purchased. He was incompetent to prove this fact to the same extent and for the same reasons that he could not prove the execution of his deed to Doolittle. We, therefore, deem the further discussion of this question unnecessary.
It is again urged that Menard was not liable on his covenants, because it appears that he had title at the time he entered into them. And that he could not become liable for a failure of title subsequently accruing. This would no doubt be true, if the title failed from the acts or omissions of the grantee or other parties; but it cannot surely be true, when the title has failed by the action of the grantor himself. He covenanted that he would forever warrant and defend the title against all claims and persons whomsoever. How this must embrace any claim which he might assert, or might transfer to any other person, by the assertion of which the title should be defeated. The operation of a covenant of this character surely cannot be so narrow, that because the grantor had title when the conveyance was made, that he may, in fraud of his covenant, wrongfully convey the property so as to ^defeat the title he had covenanted to defend. Hor could he with impunity defeat the title of the grantee and escape liability on his covenants, by disseizen or other wrongful or voluntary act. It can never be held, that after entering into such a covenant, that he may, in fraud of the rights of his grantee, defeat the title and escape liability on his covenants. The neglect of his grantee to record his deed does not authorize him to sell land which he has already conveyed, and for which he has received the pay, and obtain money therefor a -second time. This would be too monstrous for a court to sanction.
It is likewise insisted that the terms of Menard’s quit claim deed to Bailey do not embrace the lots in controversy. The language employed is this: “ All lots, blocks, land and fractional blocks, or any interest therein, in the town of Pekin, county of Tazewell, and State of Hlinois, that I have; also all my right and interest, or in anywise appertaining, together with the right of ways. This deed is intended to convey all the interest the said Peter Menard has in the town of Pekin, now city, in said county.” The language used clearly manifests the intention of the grantor, to limit the operation of the conveyance to such lands as he then owned, and the title to which was still in him. Whilst a quit claim deed is as effectual to pass title as a deed of bargain and sale, still, it, like all other .contracts and agreements, must be expounded and enforced according to the intention of the parties. In this deed, the intention of Menard appears to have been to sell such lands only as had not been conveyed by him to other parties previous to that time.
In the cases of Brown v. Jackson, 3 Wheat., 449, McConnell v. Reed, 4 Scam., 117, and Butterfield v. Smith, 11 Ill., 485, it was held that quit claim deeds, in which similar language was used, did not operate to pass the title as against prior unrecorded deeds. That the deed limited the operation of the conveyance to land the grantor owned and had not previously conveyed, and that the grantee took the deed subject to the reservation and was bound by its terms.
The question then presents itself, whether Menard’s insufficiently executed deed is embraced in the reservation. By fair construction, the language must be restricted to previous conveyances, legally executed, and operative as such. A conveyance void under the law, or even voidable, at the time of executing the subsequent conveyance could not be held to be embraced within the reservation. It not unfrequently happens, that the subsequent deed is designed to avoid a prior deed which the grantor has the legal right to avoid, and such conveyances are upheld as binding, and sufficient to pass the title. Again, the language should be restricted so as not to embrace any conveyance which is so imperfectly executed that the law will refuse to give it effect as a conveyance of title. If it has been so executed that it cannot be proved so as to be admitted in evidence as a conveyance, it cannot have effect, and cannot be held to constitute a conveyance. If for want of proof, or from other defect, it cannot be used in the assertion of the right to hold the title, it cannot be said to be a conveyance of the title to the land. In such a case, the legal title does not pass from the vendor, but remains in him at the time the subsequent conveyance is made, and falls fully within the operation of the language of such a deed. Holding the legal title at the time, it must be conveyed by the language—“This deed is intended to convey all the interest the said Peter Menard h'as in the town of Pekin.” Owning the legal title at the time, it was an interest that passed by the conveyance to Bailey.
This view of the case renders it unnecessary to discuss the question of notice at this time. Until defendants in error shall establish a title by a legal conveyance, they are not in a position to call upon plaintiff in error to produce any evidence of title. The first step they were bound to take to authorize a recovery was to show that Menard’s title had . passed to and vested in them. If unable to show that they have a remedy at law, they must, if they have any rights, be left to assert them in a court of equity, where the question of notice as well as all other equitable questions would be considered.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.