29 Ill. 39 | Ill. | 1862
Was the entry of the land by appellee, his conveyance of the same to Mix, and taking back a bond for a conveyance, upon payment of the price of the land warrant with which it was entered, a mortgage \ If so, as it appeared on the face of the transaction to be a sale, did appellee waive the right to insist upon his rights as a mortgagee %' If this was a mortgage, it was from circumstances outside of, and independent of, the written agreement. And if it was a transaction of that character, it is necessary that it should be made to clearly appear, and that subsequent purchasers had notice of the nature of the transaction between appellee and Mix, or the right to redeem will not be allowed.
Even if this was in its inception a mortgage, the evidence that appellant had notice of that fact when he purchased, is not sufficient. The son of complainant testifies, that he had a. conversation with appellant in 1857, in which he said he knew, when he purchased, that complainant had a pretended claim to the land. He does not testify, that appellant stated that he knew the nature of the claim. He did not say, that he knew that he had a right to redeem as a mortgagor,, or to pay up the purchase-money and receive a deed. It does not appear, that he knew the nature of the transaction between complainant and Mix. It also appears, that he stated to a witness that he had leased an adjoining piece of land ■ upon which to erect his house, so that if complainant held the land, he would not lose it. This is not evidence that he knew the nature of the transaction at the time of the entry. It only shows, that he was then aware that there was a claim that would be contested, and that he felt uncertain of the result.
But conceding that appellant was fully aware of all the circumstances of the case, from the time the land was purchased of the government up to the time of his own purchase, did he acquire the title, subject to be defeated by appellee’s claim ? It appears, that after appellant obtained the land for the conveyance, he erected a small building, and enclosed a small portion of the premises by a fence, but afterwards removed them. Complainant was urged by Mix to permit him to apply money in his hands, belonging to appellee, on the purchase, but he refused. Mix repeatedly urged him to pay, or he would be compelled to convey to the Greenes, which he neglected to do. Mix, to give appellee the opportunity of paying, got the matter delayed some months. Complainant stated to another witness, after the maturity of his notes, that he would lose his land. He, after appellant purchased of Greene, refused to pay the taxes, saying, that the collector would have to get them of appellant. And a motive for abandoning the land and the contract is found in the fact, that there was other government land in the neighborhood, equal in quality, and subject to entry, at a lower price than it would have cost to pay for this tract.
We think the evidence is abundant to show, that appellee had abandoned the contract. It is true, he did not in terms say so, but all of his acts subsequent to the maturity of his notes seem "to unmistakably indicate such a design. And had the land not been improved, or had it not appreciated in value, the presumption, from his previous conduct, is, that he would never have asserted this claim. To permit him to do so, would be to enable him to perpetrate a fraud upon appellant. If he purchased without notice, he must be protected. If, with full notice of all the circumstances, he was invited by the acts of appellee to believe that he had abandoned his claim, it would be inequitable and unjust to permit him to recover the premises, with the improvements and enhanced value of the land. Appellee has been guilty of laches, has stood by and failed to assert his right when it would have injured no person. He did no act, or even claim the right to enforce the contract, when it would have produced no injury. The right to treat this contract as a security for a loan, being a verbal secret understanding between the parties, not appearing in the written agreement, may be shown to have been voluntarily abandoned, altered or rescinded by the agreement of the parties. If it appeared in the written agreement, then a regular foreclosure, a release or satisfaction would be necessary. As between the parties themselves, the proof of abandonment or a rescission might be required to be more rigid than where the rights of third parties had intervened. This view of the case is fully sustained by the case of Furgeson v. Tallmadge, 20 Ill. 581. The decree of the court below is therefore reversed, and the bill dismissed.
Decree reversed.
