| Ill. | Jun 14, 1880
delivered the opinion of the Court:
This was a bill in equity, brought by the complainants, the executor and heirs at law of the estate of John T. Jones, deceased, against James A. Miller and others, to enforce the specific performance of a contract under which Robert Kirk-ham sold to John T. Jones certain real estate in White county, consisting of two hundred and forty acres, and to compel defendants to convey the title by them held to complainants. On the hearing the court rendered a decree dismissing the bill, and the complainants sued out this writ of error.
The land in question was originally owned by Robert Kirk-ham, who, in March, 1851, mortgaged it to one Dickinson for $2400, who placed the mortgage on record. On the 10th day of March, 1855, Kirkham sold and conveyed the land to James Edwards. This deed was placed upon record. After-wards Edwards discovered that the mortgage given to Dickinson was not canceled of record; he became dissatisfied with the purchase, and complainants contend the trade was canceled between Kirkham and Edwards, the latter executing a deed conveying the lands back to Kirkham, which was dated January 12, 1858, and left in the hands of Benj. P. Hinch. The notes, amounting to $400, which Edwards had given for the land, were also left with the same party.
After this transaction, and on the 9th day of November, 1860, Kirkham executed and delivered a bond for a deed to John T. Jones, in which he agreed to convey the lands on certain conditions named in the bond. This bond was never recorded, and the deed from Edwards to Kirkham was not placed upon record. Jones died in 1863, but he in his lifetime, and the executors of his estate after his death, claimed the land and regularly paid the taxes thereon, except for the years 1874 and 1875, from the date of the bond. On the 5th day of December, 1874, Edwards conveyed the lands to James A. Miller, one of the defendants, but no consideration was paid for the conveyance. On the 21st of April, 1875, Miller sold and conveyed to Franklin Hale, one of the defendants, forty acres of the land for $333.33, and about the same time he sold John Hale, a son of Franklin Hale, eighty acres of the land for $666.66. John Hale, soon after his purchase, died, and his widow and heirs were made defendants in the bill. The remaining one hundred and twenty acres are still held in the name of Miller. On the 8th day of October, 1875, and before the commencement of the suit, Kirkham and wife, in pursuance of the terms of the bond which had been given to Jones, conveyed the land to the executor of the estate of Jones.
The proof is not clear in regard to the amount Jones agreed to pay for the lands, nor is it entirely clear that the whole amount has been paid; but there is no controversy between Kirkham and complainants, in regard to this matter, and if it be true that the whole amount of the contract price has not been paid, that fact, so long as Kirkham is satisfied, does not concern the other defendants, or in any manner affect their rights in the lands. The complainants derive their title to the lands after Kirkham had sold and conveyed to Edwards, and, unless Kirkham had obtained the title back from Edwards, of course he had nothing to sell, and complainants obtained no right or title to the land under the bond given by Kirkham to Jones.
The important question in this case, then, is whether the trade between Edwards and Kirkham was canceled and the lands reconveyed. This question will have to be settled by the evidence. It is quite clear, from the evidence, that the price Edwards agreed to pay for the land was $400,—it is admitted in the answer that this was the amount. Ho tes were executed by Edwards to Kirkham for this amount, except perhaps $50, which was paid in cash.
Edwards, although an interested party, testified that on the 11 t.h of January, 1858, he met Kirkham at Hew Haven, and told him he must clear the title to the land or give back his notes and money; that Kirkham agreed to pay back the money, give up the notes, and pay him $50 for his trouble. He finally agreed to take a load of corn for his trouble, Avhich he received. He executed a deed conveying back the property, which was left Avith B. P. Hinch, to be delivered to Kirkham when he surrendered Edwards’ notes and repaid the money he had received.
Kirkham, in his evidence, does not agree with Edwards. He says they agreed to cancel the trade. “ I was to give up his notes, and" he was to make me back a quitclaim deed.” He says the notes Avere left with Hinch to be given to EdAvavds, and his impression is that the amount Edwards had paid on the land Avas paid back to him.
Mr. Hinch, the custodian of the notes and deed, is dead, but his sou, who seems to be entirely disinterested, says that he found the deéd from Edwards to Kirkham, and the notes for the $400, among his father’s papers; that in the fall of 1874 he had a conversation Avith Mr. Edwards in relation to the transaction; that Edwards told him he had paid Kirkham $50 and given his notes for the balance; that after he bought the land he found it was incumbered for four or five thousand dollars; that he went to Kirkham about it, and he paid him back the $50 he had paid, in corn, and they agreed that Kirk-ham should leave EdAA'ards’ notes Avith his father, and he Avas to make out a deed; when executed by Edwards and Avife, conveying back their rights to the lauds to Kirkham, his father was to deliver up to Edwards his notes, and Kirkham Avas to have the deed, and the trade Avas to be canceled; that he, though he and his wife had executed the deed, did not get his notes, but he didn’t care for that, as the notes were iioav void by the Statute of Limitations.
The truth of the statements of this witness seems to be corroborated by the conduct of Edwards and Kirkham after the arrangement was made, and is in harmony Avith all the facts in the case. If Edwards had not canceled the trade, and given up the land, why did he abandon it, and set up no claim whatever to the property after 1858 until 1875, when he found the deed from him to Kirkham was not on record ?
Edwards paid no taxes on the land, exercised no acts of ownership over it, and although he resided in the same neighborhood, was never heard to claim the property after he arranged with Kirkham to cancel the trade, until 1875. This conduct on his part shows clearly that the intention was to convey the property back to Kirkham by the delivery of the deed to Hinch.
Again, the conduct of Kirkham is consistent with the theory that he had taken back the land, and irreconcilable with the idea that he had not. It is unreasonable to believe that he would have sold the land to Jones if he had not taken it back, when Edwards resided in the same neighborhood, and would have known at once of the transaction, and doubtless denounced and condemned it.
We are, therefore, of opinion that the testimony shows that Edwards conveyed the property back to Kirkham,' that the delivery of the deed to Hinch for and on behalf of Kirkham, was a delivery to Kirkham, and the delivery of the notes, which were given for the land, was a surrender of them to Edwards, and thus whatever title Edwards had acquired under his purchase was reconveyed and became vested in Kirkham.
The next question presented by the record is whether Miller and the Hales are bona fide innocent purchasers without notice of the rights of complainants in the lands. If they are, then, although Edwards reconveyed the land back to Kirkham and he sold to Jones, they are entitled to be protected in their purchase. The land was vacant; the bond from Kirkham to Jones was not on record, nor was the deed from Edwards to Kirkham on record. So far, therefore, as notice under the recording laws is concerned, neither Miller nor the Hales were, chargeable with notice of the prior conveyanees. But Miller was not a bona fide purchaser of the lands; he paid nothing for the conveyance made to him by Edwards. ■ The substance of the arrangement made was that Edwards was to convey to him, and he was to clear the title of the Dickinson mortgage, make sale of the lands, and pay Edwards one-half of the proceeds. Miller merely stepped into Edwards’ shoes and held the legal title subject to all the equities which were binding upon Edwards. Had he made an absolute purchase, received a deed and paid the consideration, he would have occupied a different position.
But, independent of this, the evidence shows that Miller had actual notice before he received the deed that Edwards had previously conveyed to Kirkham.
John Humphreys, a disinterested witness, testified to a conversation which occurred between Miller and Kirkham, in which Miller said Edwards had told him the title to the land was not good; that he had returned it to Kirkham.
We now come to the purchase made by the Hales of Miller. Hale, in his evidence, admits that he and his son, before they purchased, kuew that the Jones’ had been claiming the land for a number of years. He said: “ My son and I knew, at the time of the purchase, that Jones’ heirs had paid taxes on it for about fourteen years, and I supposed they had owned it that long.”
If the Hales, when they purchased, knew the Jones heirs were claiming the lands and paying taxes thereon, as they admit they did, then it was their duty, before making the purchase, to go to the Jones heirs and ascertain from the proper source what title they had, and if they failed to make inquiry they are chargeable with the knowledge of all facts which they might have obtained by going to the Jones heirs and making inquiry. In other words, the Hales, having received notice before making the purchase that the Jones heirs claimed the lands and had been paying taxes thereon for a number of years, are chargeable with notice of all facts in relation to the title which they might have learned had they pursued the information they had to its legitimate source, Russell v. Ranson, 76 Ill. 167" date_filed="1875-01-15" court="Ill." case_name="Russell v. Ranson">76 Ill. 167; Watt v. Scofield, 76 id. 261.
It is a common, well understood doctrine, that whatever is sufficient to put a purchaser upon inquiry is good notice of all facts \yhich the inquiry would have disclosed.
We do not, therefore, think the Hales were purchasers without notice of compláinants’ title to the land, but if they had been, as they had only paid on the purchase when the suit was commenced $25, they could not be regarded as bona fide purchasers. In order to be protected in the title they purchased, it should appear that they not only bought without notice, but had actually paid the purchase money before receiving notice. If they had bought without notice and paid a portion of the purchase money before receiving notice,, doubtless they would be entitled to protection for the amount they had actually paid, but no further. Moshier v, Knox College, 32 Ill. 155" date_filed="1863-04-15" court="Ill." case_name="Moshier v. Knox College">32 Ill. 155.
We are of opinion that, under the evidence, complainants were entitled to a decree, and it was error to dismiss the bill.
The decree will be reversed, and the cause remanded for further proceedings consistent with this opinion.
Decree reversed.