Slinger v. Sterrett
118 N.E. 1008
Ill.
1918
Check Treatment
Mr. Justice Cartwright

delivered the opinion of the court :

On July 20, 1911, thе appellee, Maarten Slinger, entered into a contract with Jane E. Benn, which was executed by the appellant, Mattie Pearce, under a рower of attorney from Jane E. Benn, to- erect a residence on a lot in Oak Park, in Cook county, and in the contract the appellee guarаnteed that there should be no liens against the property. The building was completed in December, 1911, about Christmas, and has ever since been occupied by the appellant with her family. The appellee filed a bill in the superior court of 'Cook county for a mechanic’s lien to the amount of $1071.30 due on thе contract, making Jane E. Benn and appellant and her husband, William H. Pearce, defendants. The defendants demurred to the bill on the ground that there were to be no liens, and the demurrer was sustained and' the bill dismissed for want of equity. The appellee then began a suit in assumpsit in the circuit court on April 30, 1913, against Jane E. Benn, who wаs a non-resident, and sued out a writ of attachment in aid, which was levied on the premises on that day. On March 4, 1915, judgment was rendered in the suit and a general and special execution was issued, which was levied on March 20, 1915, on all the right, title and interest of Jane ‍‌‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​​​‍E. Benn in the premises. The lot was sold to the appellee under thе execution for $1323.26. On January 5, 1914, Frank V. Gilbert filed a bill for a° mechanic’s lien on the same lot, and a decree was entered on May 3, 1915, for $238.75. On June 11, 1915, the lot was sold on that decree and appellee redeemed it from that sale on June 9, 1916. On July 24, 1916, the sheriff executed a deed to appellee conveying the premises, and the deed was filed for record on August 1, 1916. The appellee conveyed an undivided one-half interest in the lot to Joseph G. Sterrett and filed in the circuit court his bill for partition, making Sterrett and appellant defendants. By her answer appellant claimed to be the owner of the lot and denied that aрpellee or Sterrett had any right, title or interest therein. The cause was referred to a master in chancery, who took the evidence and repоrted that the lot belonged to Jane E. Benn at the time of the levy of the attachment writ; that appellee and Sterrett were the owners each of аn undivided one-half and that appellant had no right, title or interest in the lot. He recommended a decree for partition, and the court, upon hearing exceptions to the report, overruled them and entered a decree accordingly.

At the time of the levy, of the- writ of attachment the appеllant was in possession of the premises with her family and her possession was notice ‍‌‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​​​‍of her rights and of every fact that would have been learned by inquiry on the рremises as to the nature of such right. (Coari v. Olsen, 91 Ill. 273; Merchants’ and Farmers’ State Bank v. Dawdy, 230 id. 199; Thomas v. Burnett, 128 id. 37; Mathias v. Fulton, 241 id. 598; Wade on the Law of Notice, sec. 273.) If the appellant was the owner of the premises and had done nothing inconsistent with her ownership which would estop her from claiming title, her possession would prevent thе appellee from acquiring an adverse title by the levy of the writ of attachment. The facts were, that on January 21, 1896, the appellant and her husband conveyed the lot, which was then unimproved, to her mother, Jane E. Benn, and on February 4, 1896, Jane E. Benn executed a deed of the lot to the appellant, which was not recorded until April 2, 1915, two years after the levy of the attachment writ. The appellant’s claim of ownership was under the unrecorded deed. The aрpellee examined 'the records before entering into the contract and found the record title to be in Jane E. Benn by a deed from the appеllant. The contract for the erection of the building referred to Jane E. Benn as the owner and the contract was executed by the appellant in thе name of Jane E. Benn and was signed, “Jane E. Benn, by Mattie Pearce,” the áppellant stating at the time that she had a power of attorney from her mother, Jane E. Benn, to execute the contract. The appellee testified that the appellant told him before the contract was made that her mother owned the lot, and when the contract was signed the appellant said they did not own the property but her mother owned it and had given her the power of attorney. William H. Pearce, husband of the appellant, acted as her agent and superintendent of the erection of the building, and, acting as such agеnt, he wrote the appellee on December 27, 1911, a letter in reference to the lock on the front door and signed the letter as superintendent for Jane E. Benn. Again, on January 23, 1912, Pearce wrote another letter to appellee referring to the residence of Jane E. Benn on the lot and himself as superintendent for her and signed the letter as superintendent for Jane E. Benn. On February 26, 1912, Pearce wrote another letter to the appellee abоut the building and signed it as superintendent for Jane E. Benn. ‍‌‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​​​‍■ On March 19, 1912, he wrote a similar letter referring to the family as occupants of the premises. All special assеssments and taxes on the property were paid in the name of Jane E. Benn by the appellant. The appellant gave her husband charge of the dеfendants’ interests in the various suits and authorized-him to employ attorneys and she was a witness in the attachment suit, but in all the litigation, although she had different attorneys, she never informed either of them, nor anyone else, that she was the owner of the premises, and she did not interplead in the attachment suit, as she had a right to do if shе was the owner. To overcome all this evidence of acts inconsistent with ownership of the premises, the appellant and her husband testified that when thе contract was signed the appellee was told that the appellant owned the lot and that the house was being built upon it for her by Jane E. Benn; that aрpellant had a deed from Jane E. Benn for the lot, and it was kept in the book-case drawer in her home, and her husband offered to show it to the appеllee but the appellee said it was not necessary. The appellant and her husband were corroborated to some extent by testimony of their sоn and daughter, and the husband testified to different conversations before the house was built and repeatedly after it was completed, in which he said that he told the appellee that he was acting as superintendent for Jane E. Benn but the property belonged to his wife. The appellee denied that he wаs informed by the appellant and her husband or anyone else, at any time or place, that the appellant owned the lot or had any interest in it. The determination of the question of fact depended to some extent upon the credibility of the witnesses, but there was so much written evidence conclusively shоwing that the appellant represented the property as the property of her mother, Jane E. Benn, that we conclude the court was right in its finding on the question of fact. It necessarily follows that the appellant, by her representations and permitting the property to be attached and sold as the property of Jane E. Benn, was estopped from asserting any claim of ownership.

Complaint is made that the court refused to re-refer the case to the master in chancery for the purpose of introducing evidence of the testimony given by William H. Pearce, on cross-examination, in the attachment suit, to the effect that he agreed with Jane E. Benn ‍‌‌‌​‌​‌​‌​​​‌‌‌​‌‌​‌​​‌‌‌​​​‌​​‌‌‌​‌‌‌‌‌​‌​‌​​​​‍to build the house and put in it $2000 which he owed Jane E. Benn and $4000 of his own money and it was to be the property of his wife. There is no assignment of error on the refusal of the court to again refer the case and the complaint cannot be considered.

The decree is affirmed.

Decree affirmed.