| Ill. | Apr 15, 1859
It is urged that the appointment of plaintiff, as trustee, to fill the place after the death of Aaron Beed, was irregular because the heirs of Beed were not made parties to the application. And that by the death of the trustee, his heirs became invested with the legal title, and as they were not parties to that proceeding they are still the owners of the legal title, and the plaintiff, by his appointment; took no interest. The deed purports to convey the property to Aaron Beed, and to his heirs and assigns, and then declares the trust, and creates the power of the trustee over the estate. Had the grantor declared no trust, Beed would, under the language employed, have taken a fee simple estate of inheritance. But, it is the object of the declaration of the trusts, and the creation of the powers conferred upon the trustee, to limit and control the estate granted. The grantor may declare any use or trust, or confer any power upon the trustee or others, which he may choose, so that their object is not prohibited by law, by public policy, or good morals, and it will be binding. He may declare the objects of the trust, and confer.the power to execute them upon the trustee or upon another. He may convey to a trustee for a limited period, and provide that at that period another may take, or that at the end of the time, or upon .the happening of an event designated, a person named by the deed may nominate and appoint a trustee to execute the trust and perform the powers. It will not be contested that a grantor conveying to a trustee, may confer a power upon an officer, as the chief executive of the State, a circuit judge, a probate judge, or upon any court of record, the power to appoint a trustee, in the event of the death of the trustee named in the deed. Then if it was the object of the clause in this deed to confer upon the Circuit Court of La Salle, such a power, so soon as Beed’s death occurred, the court became invested with jurisdiction to appoint a trustee, and such jurisdiction would not depend upon acquiring jurisdiction of his heirs or personal representatives. This deed provides, “ That in case of the decease or legal incapacity of said Beed, before the full execution, discharge and performance of all and singular the trusts in and by said deed created or declared, then, in either case, the trusts shall be executed, discharged and performed by the court of chancery of the judicial district or circuit in which La Salle county shall then be situated ; and that the estates in and by said deed granted and conveyed to said Reed, shall, on the decease or legal incapacity of said Reed, vest in such court of chancery, as aforesaid, subject to all and singular the trusts and confidences in said deed created and declared, and that said court of chancery shall exercise the same powers, and perform all and singular the trusts that may remain unexecuted and unperformed, with the same legal effect as the said Reed might or could, were he capable of performing the same; and that the mode of performing said trusts shall be such as said court of chancery shall order or decree, or agreeable to the course of practice of said court.” From this language it is clear and free from all doubt, that it was the intention of the grantor, in case of the death of Reed before the trust was executed, to confer upon the court the power to complete its execution, and expressly provides that it shall do so, in such a manner as the court shall order or decree, or according to the practice of the court. And when the court became satisfied of the death of the trustee, and that the trusts created by the deed were not fully executed, it became the duty of the court, on the application, to proceed to have the trust executed, precisely as if a trustee were to die without heirs, or a trustee in whom a personal trust and confidence is reposed by the deed, dies before he has carried out its provisions. In such cases it is the practice of the court of chancery rather than permit the trust to fail for want of a trustee, to appoint a suitable trustee, who succeeds to all the powers, rights and duties, as if he were named by the deed. We are, for these reasons, clearly of the opinion that the appointment of plaintiff, by the order of the court of chancery, was valid, and that he thereby succeeded to all the rights, powers and duties which the deed conferred upon Reed.
The doctrine is well recognized and established that a man may have the actual possession of real estate without a residence upon it. And it may be actual or constructive; actual, when there is an occupancy, such as the property is capable of, according to its adaptation to use ; constructive, as when a person has the paramount title, which in contemplation of law draws to, and connects with it the possession. But to be adverse, it must be a pedis possessio, or an actual possession. And to constitute such a possession, there must be such an appropriation of the land to the individual, as will apprise the community in its vicinity that the land is in the exclusive use and enjoyment of such person. Trifling acts, doubtful and equivocal in their character, and which do not clearly indicate the intention with which they are performed, cannot be regarded as amounting to possession. But it has been held that neither actual occupancy, cultivation, or residence, are necessary to constitute actual possession. Ewing v. Burnett, 11 Peters R. 63. And where the property is so situated as not to admit of any permanent, useful improvements, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim, has been held to be such possession as will create a bar under the statute of limitations. Ewing v. Burnett, 11 Peters R. 53. What acts may or may not constitute a possession, are necessarily varied, and depend to some extent upon the nature, locality and use to which the property may be applied, the situation of the parties, and a variety of circumstances necessarily have to be taken into consideration, in determining the question. They must necessarily be left to the jury, whose peculiar province it is, to pass upon the question of possession. Ewing v. Burnett, 11 Peters R. 53.
It is the settled doctrine of this court, and it is believed to be in Great Britain, and the various courts of the Union, that under the registry laws, a notice of the prior conveyance is as effectual as the registry of the deed. The object of recording the deed being to give notice to the world of the purchaser’s claim of title, when that end is attained, whether by recording, actual notice, or such circumstances brought to the knowledge of the subsequent purchaser or creditor, as would induce a prudent man to make inquiry before he acted, answers the object of the statute. Doyle v. Teas, 4 Scam. R. 202. When the deed is filed and recorded in the proper office, it is frequently only constructive notice, and defeats the title of the second purchaser, not because he has seen the deed and has actual notice of its existence, but because he has the means afforded him of informing himself of the existence of the prior conveyance. It has always been held sufficient, if actual notice has come to the knowledge of the second grantee before his purchase. While there is a conflict of authorities as to what circumstances brought to his knowledge are sufficient notice to protect the holder under an unrecorded deed, against a subsequent purchaser, it has been held by this court that, “ Where the court is satisfied that the subsequent purchaser acted in bad faith, and that he either had actual notice, or might have had that notice, had he not willfully or negligently shut his eyes against those lights, which with proper observation, would have led him to knowledge, he must suffer the consequences of his ignorance, and be held to have had notice so as to taint his purchase with fraud in law. It is sufficient if the channels which would have led him to the truth, were open before him, and his attention so directed that they would have been seen by a man of ordinary prudence and caution, if he was liable to suffer the consequences of his ignorance. The law will not permit him to shut his eyes when his ignorance is to benefit himself at the expense of another, when he would have had them open and inquiring, had the consequences of his ignorance been detrimental to himself and advantageous to the other.” Doyle v. Teas, 4 Scam. R. 250. The doctrine of this case was again recognized by this court in the cases of Rupert v. Mack, 15 Ill. R. 541; Mc Connell v. Read, 4 Scam. R. 123, and in Merrick v. Wallace, 19 Ill. R. 486. And it should now be regarded as the settled doctrine of this court.
In the application of this rule this court has repeatedly held that, where the first purchaser is in possession, that it constitutes sufficient notice, and protects his rights as effectually as by recording his deed. 4 Scam. R. 117 ; 15 Ill. R. 540. The evidence in this case shows an open, visible possession of the premises at the time Cushman purchased and received his first deed with an erroneous description of the land. A portion of the premises were then inclosed, with a cabin and some fruit trees on it. The evidence seems to show that Howland gave Cushman notice, that either Reed or himself was the owner, which, is not very certain. He swears that he notified Cushman that Reed was the owner, while Green and Cushman testify that he stated that he was the owner. We deem it immaterial whether the notice was given the one way or the other, as Reed was the trustee, and held the legal title ; and Howland, by the trust deed, had a contingent remainder, dependent upon his surviving his wife. He then may be said to be the owner, although his estate is contingent. And had Cushman not known and been fully advised of the situation of the title, it is strange that he made no inquiry as to the nature and extent of his title. Had he asked the question, Howland would have undoubtedly fully explained the nature of his title. But his silence indicates that he, was informed, and had no desire for any other or farther information. And having notice to put him upon inquiry at that time, both by the possession of the premises and the notice given to him by Howland, he could not protect himself by waiting some months and then taking a conveyance without further inquiry, or by removing the improvements, that were sufficient notice when he first purchased. He might remove the improvements and have the premises in such a condition as not to indicate any possession to others not knowing the facts, but he could not remove or obliterate the notice which he had previously received, and he could not take by the second deed free from the notice he had at and subsequent to receiving his first conveyance.
The evidence shows that the trust deed was delivered. That is evidenced by its being in the custody of the trustee. But if it was not delivered to the trustee at the date of its execution, and even if it were necessary that it should be delivered to him, it was taken East and delivered to him by Mrs. Howland before Cushman attempted to purchase, which would be sufficient. If a deed is delivered to a stranger, who has no authority to receive it, the grantee may ratify the act of the stranger, and the delivery will be good, even in cases where the deed is made without the grantee’s knowledge. But in this case, if either Howland or his wife received the deed at the time of its execution, their interest in the title conveyed by the deed was such as to make such a delivery operative.
The question of good faith is one of fact for the jury, and while good faith will be inferred when the party having claim and color of title, holds possession and pays taxes for the period limited, bad faith may be shown by the other party. And whenever it appears that the occupant knew he was acquiring no title when he received his deed, or was acting in fraud of the true owner, the presumption of good faith is overcome. The evidence, however, fails to show a payment of all taxes legally assessed upon this land for seven successive years. Howland showed, by the collector’s receipt, the payment of the taxes which had been assessed upon it for the year 1849, which bore date in March, 1850. He by that payment satisfied the tax and discharged both the land and owner from all taxes assessed upon the land for that year. From the moment that payment was made, there were no taxes in existence legally assessed for that year. The money existed, but its payment extinguished and discharged the tax, and when Cushman, in April following, paid an amount of money to the collector, corresponding in amount to the tax which had previously existed against the land, it was not in payment of the tax, because that had already been paid and had ceased to exist. There was at that time no tax legally assessed against the land, and his payment was not of a tax legally assessed, but it only amounted to a gratuity to the state, county, etc., which had no claim, and consequently no payment could be made to them or their officers. To constitute a payment, the money must be given in discharge of a debt, demand, assessment, or public charge, neither of which existed at the time Cushman gave this money to the collector. To permit the owner to defeat the occupant’s payment, by paying an amount of money to the collector equal to the tax which had been previously paid by the occupant in discharge of all taxes assessed on the land, would render the provisions of this statute inoperative, and would amount virtually to its repeal, as the holder of the better title would surely make such a payment once in seven years.
When the deed to Reed was recorded, it became notice to the world, and any person purchasing from Cushman after that time, took the title just as he held it. If Cushman was chargeable with notice when he purchased, his grantee, receiving a conveyance after the deed to Reed was recorded, would be chargeable with the same notice that Cushman had. It would, however, be different, if the trust deed to Reed had not been recorded in the proper office when they purchased. In that event, to resist successfully a conveyance from Cushman, actual notice or a knowledge of such circumstances as would put a prudent man on inquiry, would have to be brought home to his grantee before his purchase.
It is urged that the court erred in refusing to give plaintiff’s eighth instruction asked. It was: “ If at the time of the occupation by Alexander, under Howland, the only legal title or claim that Howland had was under the deed from Green to Reed, then the possession of Alexander was under said deed, whether Howland disclosed to Alexander that Reed was the owner or not, and Alexander’s possession would be notice that he was in possession under this deed to Reed.” The possession of the tenant is that of his landlord, and it is the same, whether he acquires it from the owner or from his agent. Alexander could not have disputed the title of Reed, if Howland was acting as his agent. But in this case, as a means of notice, the occupancy by Alexander was the same notice to Cushman as if he had made his contract with and received his lease from Reed. Had Cushman seen Alexander and inquired of him how he was holding, he would have referred him to Howland, from whom, by inquiry, he could have learned the nature and extent of the title, and this instruction should therefore have been given.
The court erred in giving defendant’s third instruction, as a delivery of the deed to Howland or wife as the beneficial parties to this deed, or a subsequent ratification of a delivery to any person, by receiving, holding or acting under it, or receiving it without disclaiming the act, would be a sufficient delivery, and would relate to its execution. This instruction should have been so modified before it was given.
The defendant’s sixth instruction, as given, was .calculated to mislead the jury. It asserts that notice given by Howland to Cushman, that he was the owner of the land, is not sufficient notice to Cushman of Reed’s deed. We have already seen that the cestui que trust has such an interest in the deed as to be for the purposes and to the extent of the trust declared and created by its provisions, the beneficial owner of the land, and Howland, in equity, was an owner of the trust created by the deed, and had the contingent remainder of the property, to appoint, by sale, its disposition. And had Cushman asked how he held, or what his title or interest was, he would have doubtless been fully informed. And we are of the opinion, that such a declaration or notice was sufficient.
The proof of notice of the existence of an unrecorded deed, must be made in the same manner, and its measure must be the same as that which establishes a fact in other civil cases. This we have seen is the principle established in the cases of Doyle v. Teas, Rupert v. Mack, and Mc Connell v. Read, where it is asserted that any circumstance which is calculated to put a prudent man on inquiry, is sufficient. The ninth instruction given for defendant was therefore incorrect.
The defendant’s eleventh instruction was not properly qualified by pointing out which deed from Green to Cushman was referred to, whether the first or last. If it was applied to the first, by which no title passed, it was wrong, and if to the latter, as an abstract proposition, it was perhaps correct; but as it was given, the jury may have understood it as referring to the first and not the latter of these two deeds. But we cannot see why it should have been given, even if modified, as the deed came from the proper custody, and was received by Howland, who had, as we have seen, such an interest as would authorize him to receive it for the benefit of the grantees.
There are no other errors perceived in the record, of which the plaintiff has a right to complain. But for these errors, committed by the court below, the judgment of that court must be reversed, and the cause remanded.
Judgment reversed.