24 Ill. 57 | Ill. | 1860
The only question in this case which it will be necessary to investigate, is that of notice. Had the 25th section of the 57th chapter, R. S., been in force at the time of the levy of this attachment, the want of leaving a copy of the levy with the recorder till after Ogden was confessedly notified of the conveyance from Haven to Tooley, would have given that conveyance a priority over the attachment; but that section was not incorporated into our attachment law till 1841, and can have no influence upon this case.
But we think Ogden is chargeable with actual notice of this conveyance by Tooley at the time he sued out the attachment. A little over two years before that time, and while Haven was owing this very debt, Tooley called on Ogden at his office in Chicago, and informed him that he had purchased this land of Haven, on Haven’s representation alone, and informed him of the price he had paid for it, and inquired of the quality and location of the land, and asked his opinion of the bargain. Ogden said he was well acquainted with the land, and thought the purchase a safe one. When about to commence the attachment suit, Ogden examined the records for the purpose of seeing what lands had been conveyed to Haven and what he had conveyed away, with the purpose of attaching all, the title of which was apparently in him. At that time the mortgage from Tooley to Haven of these same -lands was on record. We think the presumption of fact as well as of law, is that Ogden, at that time, saw the record of that mortgage. Finding the title in fee in Haven, and subsequently a mortgage to him from a third person, was well calculated to excite suspicion that Haven must have conveyed the land to Tooley by some conveyance not recorded. Would any prudent man, about to purchase this land of Haven, finding this mortgage to him, refrain from asking an explanation of this circumstance ? Were not these facts sufficient to awaken inquiry in the mind of a reasonably cautious man about to purchase, and who would lose the purchase money if it should turn out that. Haven had sold the land by some unrecorded deed ? for this is the measure of obligation and good faith resting upon Ogden to make inquiries as to any such conveyance. But if this circumstance of itself was not sufficient to put Ogden on inquiry as to .any unrecorded conveyance, it was sufficient to awaken suspicion and to bring to his remembrance the fact that this same Tooley, the mortgagor, had but little over two years before told him of his purchase of Haven of these same lands, and consulted him in regard to that purchase. We agree that the bare fact that he had at some former time been told of this purchase by Tooley, would not be sufficient to establish the notice, unless all the circumstances would lead to the reasonable conclusion that the fact was within his remembrance at the time of the attachment. But such we think to be the reasonable and necessary inference in this case. We are of opinion that Mr. Ogden is chargeable with both actual and constructive notice.
We do not think it necessary to decide the other question arising in this case, as the conclusions already arrived at must affirm the decree.
Decree affirmed.
