| Ill. | Jun 18, 1883
delivered the opinion of the Court:
As respects the deed in question from Mary E. Taylor to Haworth, the first ground made for its invalidation is, that Haworth had constructive notice by record of Mrs. Taylor’s prior conveyance of the same lands to Abijah Taylor, from the fact of Taylor’s deed having been filed for record previously to the making of the deed to Haworth. The statute makes the filing of a deed for record the same as the record- • ing of it, as respects notice, and the only question upon this point is, whether Taylor’s deed was filed for record, within the meaning of the statute, before the making and recording of Haworth’s deed.
Taylor’s deed was formally filed for record June 15, 1866, and the recorder’s fees paid, but was not recorded until some time in 1872. Haworth’s deed was made December 26,1866, and recorded on January 29, 1867. The recorder gave testimony that Taylor wanted him to file the deed for record, and paid the recording fees; that Taylor said he was not particular about it being recorded right away; that he suspected his wife would make conveyance to some other person for the same property, and in case she did he wanted this deed put on record immediately, and wanted witness to keep w'ateh; that witness put the deed in the “dead-head box,” and kept watch for some time, but at last forgot all about it,—the “dead-head box” being where deeds are thrown that are not paid for, and are not to be recorded. In the entry book of the recorder’s office there appears an entry of the names of the parties to the deed, the filing of tlié deed June 15, 1866, the fee paid, and under the heading, “Bemarks, ” the entry, “Not to be recorded until ordered.” We take the recorder’s entry jn the entry book as the evidence of the terms upon which the deed was left for record, and they were, that it was not to be recorded until ordered, and in consequence thereof the deed was not recorded until after the making and recording of the deed to Haworth. The statute intends, by the filing of a deed for record, the leaving of the deed for record in due course. This deed to Taylor was not so left, but left to be recorded only when ordered, and there not having been any subsequent order for its record until after the deed to Haworth was made and recorded, we are of opinion that Taylor’s deed was not filed for record, within the meaning of the statute, before the deed to Haworth, and that the latter, at the time of taking his conveyance, was not affected with constructive notice of Taylor’s deed from the 'filing of the same for record.
Another ground for impeaching Haworth’s deed is, that at the time he took it he had constructive notice of the existence of Taylor’s previous deed, from the fact of Taylor’s possession of the land. At that time Taylor was'in the actual possession of the land by his tenant, Johnson, under a written lease made to the latter by Taylor on August 22, 1865, for a term of five years, commencing March 1, 1866. We think this was constructive notice, not only of Johnson’s interest in the land, but of Taylor’s as well. The inquiry upon which one would be put in such a case as to the occupant’s right would have discovered that Johnson was but a tenant, which would have referred the inquirer further to the landlord as to his right, as it is not to be expected that a tenant would know what was the title of his landlord. Pittman v. Gaty, 5 Gilm. 186; Franz v. Orton, 75 Ill. 100" date_filed="1874-09-15" court="Ill." case_name="Franz v. Orton">75 Ill. 100; Smith v. Heirs of Jackson, 76 id. 254; Whitaker v. Miller, 83 id. 381; 3 Barbour’s Ch. 316.
As at the date of the lease Taylor was not the owner of the land, but acquired title subsequently, on November 13, 1865, it is contended that the notice from the tenant’s occupancy was notice only of Taylor’s (the landlord’s) rights at the time of the making of the lease, and not of his rights at the time of Haworth’s deed, December 26, 1866. We do not concur in this view, although the authority cited (Emmons v. Murray, 16 N. H. 398,) lends somewhat of countenance to it. We regard the doctrine, as derived from the decisions of this court, to be, that where one purchases land of which another is at the timé in the actual, open and visible possession, such possession is constructive notice to the purchaser of all rights whatever of the possessor in the land at the time of the purchase. °
We find, then, the claim of title under Haworth’s deed to he invalid, from the fact that at the time of taking the deed Taylor was in the actual possession of the land by his tenant, which constituted notice to Haworth of Taylor’s right to the * land under his prior unrecorded deed. The reason given for the deed to Haworth is, that the sole consideration of the deed from Mrs. Taylor to Abijah Taylor was an agreement on his part to discharge the liens which w7ere upon the Indianapolis property he conveyed to Mrs. Taylor; that Taylor failed to discharge the liens, and thereupon Mrs. Taylor, to save her Indianapolis property, sold and conveyed the lands which she had previously deeded to Taylor, to Haworth, for $3000 in cash, out of which she discharged and paid off said liens. Of course this was no legal justification for making the deed to Haworth.
In regard to Haworth’s claim of title under the sheriff’s sale, there are circumstances of a remarkable character attending that sale. In the first place there had been sold under the execution, and bid off by the plaintiff therein, one hundred and sixty acres of other lands for $580, which lands may be supposed to have been worth very much more than that sum. Why was not, then, the remaining insignificant sum of five dollars added to and included in that bid and sale, instead of going on afterward and selling the debtor’s life interest in the lands in controversy for the sum of five dollars, the yearly rental value of which interest the decree in this ease finds to have been $560 ? The'two sales were made at onetime,—March 20, 1867. 'Why should there have been two certificates of purchase made out, one for the other lands and another for the lands in controversy, and the former one placed upon record and the latter suppressed from the record? Where' land is sold under execution, the statute requires the sheriff, within ten days from the sale, to file in the office of the recorder of the county in which the property is situated a certificate of the purchase, which shall be recorded by the recorder. In Thomas v. Hebenstreit, 68 Ill. 118, it w7as said the object, no doubt, of this provision of the statute was, that all persons interested in the title to the „ land might, on inspection of the record, learn, among other things, when the land was sold, when redemption expired, etc. The certificate of purchase here for the other lands was filed for record and recorded August 6, 1867, (the time of the return of the execution,) but the certificate of purchase for the lands in controversy was not filed for record until August 8, 1875,—more than five years after the sale. On August 6, 1867, the sheriff made return of the execution with his indorsement thereon that he returned the execution, and fee bill satisfied in full by sale of property levied on, and naming it as the other lands than those in controversy, and stating the amount at which each tract sold, being in the aggregate $580, and the certificate of purchase filed for record on that day stated that those tracts were sold to the plaintiff in execution for $580,—the sum which the return said satisfied the execution .and fee bill in full. Thus the public records informed Taylor that the execution had been satisfied in full by the sale of other lands than those in controversy, and misled him to understand that none of the lands in controversy had been sold. He was in ignorance of, and had no reason to suspect from the records, that these lands had been sold, but had reason therefrom to think the contrary. The practices which were adopted here were excellently well calculated to keep from Taylor knowledge of the fact of the sale of these lands under the execution. We think he is entitled to say that they did so, and especially in the case of such gross inadequacy of price; that they were the cause of the failure to redeem from the sale within the time given for that purpose by the statute, and therefore that in equity he should bé permitted to redeem now, after the expiration of the statutory period for redemption. As to gross inadequacy of price lending aggravation to any irregularities in a sale, see Dutcher v. Leake, 44 Ill. 400; Thomas v. Hebenstreit, 68 id. 118. The bill asks, and makes offer, to redeem, and the decree allows redemption, in which we find no error.
A point is made as to Haworth being an innocent purchaser. He purchased only an equitable interest in buying the certificate of purchase, and took subject to the outstanding equities of Taylor, and occupies no better position than that of the plaintiff in the execution.
Objection is made to the jurisdiction to entertain the bill, because Haworth was in possession at the time of the filing of the bill, and that under decisions of this court a bill to remove a cloud upon title will not lie where the defendant is in possession. We think it enough to say that the bill being, in one of its aspects, to redeem, the bill in such respect ivas well brought, irrespective of possession by the defendant.
As a bill to redeem, objection is taken to it on account of the delay in the filing of the bill. Under all the circumstances of the case we do not consider that there can be any just imputation of laches to the complainant in not sooner filing the bill.
The decree adjudged a recovery against the defendant of $4707 for the balance of the rents and profits received by him from the land up to April 30, 1882. It is objected to this, that there was no prayer for an account in the bill, and that the remedy for the recovery of rents and profits should have been sought in a court of law. . The bill made a proper case for an account, and w’e are of opinion it might properly be taken under the general prayer for relief, and that in order to the adjustment of all the rights of the parties with respect to the subject matter of the suit, it was proper to take the account in this case. It appears that on March 27, 1874, Taylor made a quitclaim deed of his interest in the land to Busan Welch, and that on September 23, 1881, she reeonveyed to Taylor, and it is claimed that during the time intermediate those dates Taylor is not entitled to recover for rents and profits. The evidence shows this deed from Taylor was but a mortgage, it being a mere security for a debt, and as mortgagor, Taylor was entitled to the rents and profits of the land, the condition of the mortgage being unbroken, and no claim of rents by the mortgagee.
It is claimed the amount allowed Taylor is too great. The value of the rents and profits may have been estimated too high, but whatever error there may have been in that respect was more than counterbalanced by the allowance of a deduction of the amount of the payments made by Mrs. Taylor in the discharge of liens upon the Indianapolis property, said liens being the ones hereinbefore mentioned in stating the reason given for Mrs. Taylor’s making the deed she did to Haworth. The propriety of the allowance of this deduction, at least under the pleadings in the case, does not satisfactorily appear to us. "We are inclined to think that because of this allowance any cause of complaint in respect of the -amount decreed to Taylor is rather with .Taylor than the defendant.
The decree of the circuit court must be affirmed.
Decree affirmed.
Walkeb, and Scott, -JJ.: We hold that the Statute of Limitations barred all rents and profits accrued more than five years before the date of filing the bill. See Harding v. Larkin, 41 111. 413, which announces this rule.