Dunlap v. Wilson

Mr. Justice Walker delivered the opinion bf the Court': It appears from the evidence in this case, fthat, Gatewood, being indebted to the Bank of Ulinois in a large sum,' executed a mortgage embracing the lands in controversy, together with others, to secure its payment. It bears date on the 19th of February, 1840, and was recorded in the proper office on the 8th day of March, 1845. That in the year 1848, Gatewood died intestate, without having paid the mortgage debt, or otherwise released the lands from the lien of the mortgage. In September, 1850, the assignees filed their bill against Gatewood’s administrators and heirs, to foreclose the mortgage; obtained a decree, and the lands were sold under the decree on the 19th of October, 1852. At that sale plaintiff in error became the purchaser of the premises in controversy for $2,357.06, and received a deed, on that day, from the master in chancery. The sale was approved and confirmed by decree of the court. On the 14th- day of October, 1843, defendant Wilson obtained a deed for these lands from Gatewood, in payment of a debt the former held against the latter. This deed was duly recorded on the 20th day of January, 1844. On the 15th day of December, 1856, Wilson conveyed the land in controversy to defendant, Coleman, for the consideration of one hundred dollars. This deed was recorded in the proper office on the 16th day of March, 1858. This hill was exhibited on these facts for the purpose of quieting the title of complainant and to have Gate-wood’s deed to Wilson, and Wilson’s deed to Coleman canceled. The bill charges notice of the existence of .the mortgage to the hank, by Wilson when he purchased of Gatewood, and that the conveyance by Wilson to Coleman was made in consideration of natural love and affection, Coleman being a nephew of Wilson. They, in their answer,' deny all notice, hut admit the relationship, and that the consideration for the conveyance was natural love and affection. Coleman alleges in his answer, that he had exercised acts of ownership over the land for more than seven years before this suit was instituted, by paying taxes, protecting the timber, as well as by other acts, and insists upon the statute of limitations as a bar to this suit. On the hearing in the court below, the hill was dismissed, which is now assigned for error. There can he no pretense that defendants, or either of them, had constructive notice of this incumbrance, by its being recorded. The deed to defendant, Wilson, was executed before the mortgage was placed upon record, and it was recorded nearly fourteen months before the mortgage. If, then, Wilson took subject to the mortgage, it was because of actual notice of its existence, or of notice of such facts as, upon reasonable inquiry, would have led to notice of the mortgage. This is positively denied by a sworn answer. Kirkpatrick, however, testifies that he informed Wilson, both before and after his purchase, that all of Gatewood’s lands were mortgaged to the hank. This is the only witness who attempts to prove that there was actual notice before the deed was executed. This evidence of but one witness is not sufficient to overcome the sworn answer of defendant, Wilson. •But it is insisted that, as the evidence shows that Wilson employed Eddy as an attorney to assist him in seeming his debt of Gatewood, and as he was the attorney of the bank, and was proved to have written some mortgages to the bank, and also had been a director in the bank, it must be inferred that he communicated information of the fact to Wilson before he purchased. It will be observed there is no evidence that Eddy drew this mortgage, or that he had any knowledge of its existence. It can hardly be inferred that because a person has acted as the attorney of another, he therefore is fully informed of all of his client’s business. It might be otherwise, however, when he had been recently employed in connection with the particular transaction, as he then had the knowledge, and must be presumed to have acted with reference to it. Had it appeared that Eddy drew the mortgage in controversy, then the presmnption would be indulged that he communicated the fact to Wilson before he received his conveyance. Nor is it perceived that the fact that Eddy was a director of the bank affords evidence of notice. If it had appeared that he was present and acted with the board of directors when they determined to procure the mortgage, or when its execution was reported to them, it might be presumed that he communicated the fact to his client. But the court cannot judicially know that any such action was had by the board of directors, or if it was, that Eddy was present and participated in its action. We are of the opinion that the evidence fails to overcome the sworn answer, there being the evidence of but one witness which contradicts it. Again, the relief sought could not have been granted, however conclusive the evidence might have been. If Wilson purchased without notice, actual or constructive, he, by first recording his deed, acquired title freed from the incumbrance of the mortgage. But suppose he had both actual and constructive notice, what were his rights ? It will be conceded, that he purchased the title subject to the mortgage. That he acquired the right to redeem the property. Having acquired this right, he or Ms grantees could only be deprived of it by foreclosure, or its bar in some of the modes known to the law. This record discloses no such action. It is true that it shows a foreclosure of the equity of redemption of Gatewood’s administrator and heirs, because they were made parties to that suit; but neither of these defendants was made party to that proceeding, and until they were before the court, their rights could not be affected by any decree it could render. All that was sold under that decree was the supposed interest of Gatewood’s estate, and it is manifest that they had none to be affected, as the title had passed to Wilson, subject to this incumbrance. The title having also passed to Coleman in the same condition, and he not having been made a party to the foreclosure suit, his rights remained unimpaired. Then upon what principle could his deed be declared void, even with notice? It would be highly imjust and inequitable, although it appeared that Wilson purchased with notice, to cancel these deeds, and deprive Coleman of the right to redeem from the mortgage. The court below committed no error in dismissing the bill, and the decree is affirmed. Deoree affirmed.