| Ill. | Apr 5, 1889
delivered the opinion of the Court:
This was a bill filed by Martha J. Burnett, against Charles W. Thomas and the sheriff of Bandolph county, to set aside a certificate of purchase held by Thomas upon a forty-acre tract of land owned by the complainant, as a cloud on her title, and to enjoin the sheriff from making a deed under such certificate.
Both parties claim title under James Burnett, a son of the complainant. It is conceded that on the 29th day of March, 1882, James Burnett was the owner of the tract of land in controversy, which was enclosed and in cultivation, hut upon which there was no house. On that day the complainant, as it is shown, bought the land in good faith from her son, for the sum of $1600. No deed was made until in the month of April following, when James Burnett conveyed the land to complainant. No question arises in respect to the payment of the purchase money at the date of the purchase. The land had been under fence and cultivation for over twenty years. David G. Thompson had for some years acted as the agent of James Burnett while he was owner, and had rented the land from year to year. The deed to complainant was not recorded until October 22, 1884, and the land stood on the assessment books in the name of James Burnett until 1885. The complainant, after her purchase, retained Thompson as her agent in respect of this land, and who, in August, 1882, rented the land, as the complainant’s, to one Jordan for one year, who raised a crop thereon, and retained possession of the same until in August, 1883, when he surrendered possession to Thompson. In March, 1884, the agent rented the lands to Tagle. At each renting the agent informed the tenants that complainant was the owner of the premises, and that he was renting it for her. A crop was raised on the land each year after 1882 by the tenants of complainant, and the fences were kept in repair by her agent, who collected the rent and paid the same to her. On the 10th day of October, 1883, Margaret Gilfillen sued out an attachment against James Burnett, in the Randolph circuit court, returnable to the March term thereof then following, and this land was levied upon on that day as the property of James Burnett, and a certificate of levy duly filed. At the September term, 1884, of saiduourt, said plaintiff in attachment recovered judgment for $2500 against said Burnett. Special execution was issued thereon, under which, on October 22, 1884, the tract in controversy was sold to defendant Thomas, attorney of the plaintiff in question, for $1900, and the sheriff - delivered to Thomas a certificate of purchase, which is the certificate now sought to be set aside.
Section 31 of the Conveyance act declares, that all deeds, etc., authorized by law to be recorded, “shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record.”
An attaching creditor who levies his attachment without notice of a prior unrecorded deed of his debtor, either actual or constructive, acquires a lien, which, if perfected by judgment, execution, sale and deed, will hold the legal estate as against the grantee in a prior unrecorded deed. Having acquired a lien as an innocent creditor without notice, he will have a right to enforce the same, notwithstanding he may have, subsequently to the levying of his attachment, received notice of the deed. (Martin v. Dry den, 1 Grilm. 187; Stribling v. Boss, 16 Ill. 122" date_filed="1854-12-15" court="Ill." case_name="Stribling v. Ross">16 Ill. 122; Jones et al. v. Jones, id. 117; Henderson v. Downing, 24 Miss. 106" date_filed="1852-04-15" court="Miss. Ct. App." case_name="Henderson v. Downing">24 Miss. 106.) Unless, therefore, the plaintiff in attachment had notice, either actual or constructive, of the unrecorded deed from James Burnett to Mrs. Burnett, the lien thereby acquired must prevail over the rights of the complainant under that deed. The statute makes her deed void, as against the attaching creditor, if a lien on the property was thereby secured in good faith, and without notice of her rights.
Complainant’s right to the relief sought depends, therefore, upon the fact, whether the plaintiff in attachment, at the time of the levy of the writ, had notice of her rights. There is no pretense that she had actual notice of the unrecorded deed, but it is claimed that she had constructive notice, arising from the possession of the land by complainant. Complainant took possession, after her purchase, by her agent and tenants, as we have seen, long prior to the levy of the attachment, and which possession she has ever since retained. It is well settled that actual possession of land by a party under an unrecorded deed, is constructive notice of the legal and equitable right of the party in possession. The possession by a tenant is the same, in all respects, as if by the party himself. Franz v. Orton, 75 Ill. 100" date_filed="1874-09-15" court="Ill." case_name="Franz v. Orton">75 Ill. 100; Whittaker v. Miller et al. 83 id. 381; Coari v. Olsen, 91 id. 273.
It is claimed by plaintiff in error, that possession, to have the effect of notice, must be of that character which will arrest attention, and the case of Loughbridge v. Bowland, 52 Miss. 546" date_filed="1876-04-15" court="Miss." case_name="Loughridge v. Bowland">52 Miss. 546, is referred to as sustaining that-position. , In that case, the grantor of the land, at the time of the conveyance, was in possession of the same by his tenant. After the sale, the same tenant continued to hold possession under an agreement to pay rent to the grantee. There was there nothing more than a technical attornment by the tenant to the purchaser ; and the court held, that the mere attornment of the tenant, without any visible change in the character of the holding, was not sufficient to put a creditor or subsequent purchaser on inquiry. It is not necessary to the decision of this case to express any opinion in respect of the doctrine there announced, for the reason that after the complainant’s purchase, she, through her agent, made a lease of the property to Jordan. This was in August, 1882, and for one year, and under it a crop was raised. The tenant was informed that his landlord was Mrs. Burnett, the complainant. The agent, as before stated, kept the place in repair as her agent, collected the rents and paid them to her. Here were open, notorious acts of ownership, asserted in an unequivocal manner by the complainant. Thompson, the agent,, was not himself in possession of the property, but the tenants of complainant were, and it was their possession which constituted notice.
It is, however, said that there was no tenant in actual possession at the time of the levy of the attachment, and therefore the plaintiff in error was not chargeable with notice of the unrecorded deed. The tenant’s possession of land is that of his landlord. The Jordans occupied the land up to August, 1883, and this was notice to the world of Mrs. Burnett’s title, to all intents, as if she had occupied it. Actual residence is not essential to continuous possession. If the party is in actual possession of the land, and there are continuous acts of ownership, it is sufficient. Coleman v. Billings et al. 89 Ill. 182; Ford v. Marcall, 107 id. 136.
The land here in controversy was improved and under fence. In such case, the owner will not lose his possession by failing to be continuously in the actual occupancy or use of the land, by himself or tenant. The fact that a short time may have elapsed between the actual occupancy by one tenant before another tenant takes possession, will not be a loss of possession by the owner. The improvements, the fact that a crop-had been raised the previous season, will clearly indicate the possession, and will be sufficient to put others dealing with the property upon inquiry. The attachment here was levied October 10, 1883, a short time after the tenants had surrendered possession to Thompson, complainant’s agent, who still continued to act as such agent in taking care of the property, and the plaintiff should have made inquiry before levying her writ of attachment. It is apparent this could have been done, either of the outgoing tenants or of the agent. Any reasonable, prudent man, contemplating a purchase of the property, would have made such inquiry; and it is clear that an inquiry of the Jordans, or of Thompson, would have led to notice of the claim of complainant, and of the existence of the unrecorded deed.
We think the circumstances are such as to charge the attaching creditor with notice of the deed from James Burnett to the complainant. This being so, the circuit court committed no error in granting the relief prayed, and its decree will be affirmed.
Decree affirmed.