Lyman v. Russell

Mr. Chief Justice Breese delivered the opinion of the Court: The object of the bill filed in this cause was to set aside a certain mortgage, and all proceedings under it, made by William Bandy and wife to O. L. Davis, on the 20th of January, 1858, on the .allegation, that, before the execution of this mortgage, Bandy and wife had sold and conveyed the same land to Samuel Lyman on the 27th of July, 1855, and that he, and those claiming under him, had been in the actual, open, notorious and visible possession of the same ever since, and was so in possession at the date of the execution of the mortgage. There is proof showing, that, soon after the purchase of this land by Lyman, he broke up a portion of it, and the purchasers under him broke other portions before the execution of the mortgage. The land was situate on a public road leading from Middleport to Kankakee, and working on it with a plow breaking the soil was in the view of all who passed along the road. Davis, then, in taking this mortgage, should have inquired into these acts and have ascertained by what authority they were done, and what interest the party doing them had in the land. Such an inquiry would have brought to light the unrecorded deed from Bandy to Lyman for the land. We think this possession by Lyman was sufficient notice to put a subsequent purchaser upon inquiry, and should operate as legal notice to him of Lyman’s rights. Rupert v. Mark, 15 Ill. 540. This being the only point made in the ease, and the Circuit Court having decided it against the complainant, the decree must be reversed and the cause remanded. Decree reversed.