Prettyman v. Wilkey

Skinner, J. This was a bill in equity, to enjoin the recovery of two lots in the city of Pekin, and to obtain a conveyance of the legal title to the complainants. The case shows that S. P. and James Bailey, being the owners of the lots in 1831, conveyed the same to D. M. Baily, to hold and convey the same for the payment of certain debts of the grantors, due to the grantee and others ; that D. M. Baily, the same year, executed to Stanford a power of attorney, to attend to the trust duties arising out of the deed ; that, under the power, Stanford, in 1831, with the knowledge of the Bailys,sold and conveyed the lots to Menard & Doolittle, executing a deed to them, referring for authority to the power, but in his own name; that D. M. Baily knew of the sale, and received the purchase money ; that Menard conveyed his interest in the lots to Irwin B. and William B. Doolittle, under and through whom the complainants claim title; that Menard & Doolittle, and those claiming under them, have been in actual possession of the lots since 1831, claiming in fee simple; that in 1850, D. M. Baily executed a deed for the lots to Reeves, who conveyed to Prettyman, and that S. P. and James Baily, in 1850, also executed a deed for the same to Prettyman; that Prettyman, since 1845, Reeves, since 1847, and D. M. Baily, since 1837, have had actual knowledge of the adverse claim and possession of Menard & Doolittle, and those claiming under them; that S. P. Baily was present at the sale by Stanford, in 1831, and has since resided in Pekin. The actual improvements were confined to one of the lots, but the lots adjoined, and were held as one property, under the deed executed by Stanford, under the power, to Menard & Doolittle. The possession, therefore, was actual of both lots as one premises, though described in the deed as lots “ 15 and 16,” etc. Brooks v. Bruyn, 18 Ill. R. 539; Davis v. Easely, 13 Ill. R. 192 ; 14 Ill. R. 244; 15 Ill. R. 271. This possession existed at the time of the execution of the deeds under which Prettyman claims, and although by such deeds Prettyman may have acquired the legal title, the adverse possession was notice of the equities of the complainants, and his legal title cannot, therefore, override those equities. McConnel v. Reed, 4 Scam R. 123; ibid. 152; 5 Gilm. R. 186; Rupert v. Mark, 15 Ill. R. 542. It is unnecessary to decide whether the trustee, D. M. Baily, to whom' the property was conveyed to be sold to pay the debts of the grantors, could delegate that power to Stanford. D. M. Baily, in whom the title was vested, ratified the sale by receiving the purchase money, and the Bailys who made the trust deed knew of the sale by Stanford and payment of the purchase money; and they and D. M. Baily, the trustee, after acquiescence for more than eighteen years, during which time there was active possession under the sale made by Stanford, under supposed power, cannot now allege a defect of power in Stanford. Their acquiescence is an estoppel, both as to them and those claiming under them, adversely to the complainants, and who purchased with notice of the equities derived from the sale by Stanford. 1 Story’s Eq. Jur., sec. 385 ; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 344; Storrs v. Barker, 6 ibid. 166 ; Town v. Needham, 3 Paige’s R. 545; Skinner v. Dayton, 19 John. R. 513. However defective the deeds of conveyance under which the complainants claim may be, or the execution of the power by Stanford, if the power could be delegated by D. M. Baily, the trustee, they will be corrected in a court of equity. Stanford was a competent witness for complainants. The deed executed by him to Menard and Doolittle was a deed of quit-claim, containing the words “ grant, bargain and sell.” These words are held to amount only to a covenant that the grantor has done no act, nor created any incumbrance, whereby the estate granted by him could be defeated. In other words, to a covenant only against his own acts. Our statute is a copy of the Pennsylvania act of 1715; and that act was so construed by the courts of that State at the time of its adoption in this State. We, therefore, adopt the construction which before had been given the same words, and we are satisfied it is the only true interpretation of the words. Lessee of Gratz v. Ewatt, 2 Binney R. 95 ; Roebuck v. Dupey, 2 Ala. R. 541; Rawle on Covenants, 401 to 412. We discover no error in the record. Decree affirmed.