Ford v. Marcall

Mr. Justice Scott delivered the opinion of the Court: Both parties claim the title to the land in controversy that was in Elizabeth Bonham. Complainant, Richard Marcall, deraigns the title he insists is paramount, directly from her through certain mesne conveyances, and defendant, Milton M. Ford, claims title by virtue of an execution sale of the land as the property of George Robinson, in whom he alleges the title was by virtue of mesne conveyances from the original owner. This bill was brought to set aside the sheriff’s deed as a cloud upon complainant’s title. The circuit court decreed relief according to the prayer of the bill, and defendant brings the case to this court on appeal. The only evidence contained in the record is that recited in the decree of the court, from which it áppears that on the 10th day of December, 1872, Elizabeth Bonham conveyed the land to Susan A. Bonham, and on the 1st day of October, 1873, Susan A. Bonham conveyed the same land to George Robinson. Both deeds were made without consideration, and were simply intended to place the title in the grantees for the purpose of sale, for the accommodation of the grantor. Neither grantee ever claimed more than to hold the legal title in trust for the grantor, and to be reeonveyed to her at any time, bn request.' The grantor all the time retained the possession of the land. Afterwards, Robinson conveyed the property, to Hamlet G. Bonham. This deed is dated February 21, 1874. Hamlet G. Bonham then made a declaration of trust, dated March 26, 1875, stating on what terms he held the title for Elizabeth Bonham. That declaration of trust was recorded in the recorder’s office in the county where the land is situated. On the 11th day of February, 1874, Swan Swanson and Christian Johnson, administrators, recovered a judgment against George Robinson. It is under a sheriff’s sale on an execution issued on that judgment that defendant claims the land that is the subject of this litigation. It does not appear when the sheriff’s sale was in fact made, but the sheriff’s deed bears date March 2, 1878. Defendant, however, states, in his answer, execution issued on the judgment July 29, 1876; that on the 31st of August, thereafter, the sheriff levied it on the land in question, and on the 25th of November, of the same year, sold it to defendant for $350. 1 There is a technical ground on which the decree of the circuit court may be affirmed. It does not appear, from any evidence in the record, that any execution was issued on the judgment under which the land was^ sold, within one year from the time it is alleged the judgment became a lien on the land in the hands of Robinson. The statute declares,' “when an execution is not issued oh a judgment within one year from the time the same. became a lien, it shall thereafter cease to be a lien, but execution may issue on such judgment at any time within seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff or other proper officer to be executed.” It will be observed that Robinson conveyed the property to Hamlet G. Bonham on the 21st day of February, 1874, and that was ten days after it was claimed the judgment became a lien on it. As before remarked, it does not appear from any evidence when the first execution was issued on the judgment, but if defendant’s answer may be taken as evidence against him, no mention is made of any execution as having been issued on the judgment until July 29,1876. That was more than a year after Robinson had conveyed the land to Hamlet G. Bonham, and more than a year after it is alleged it became a lien on the property in the hands of Eohinson, and hence the judgment had.ceased to be a lien, and the subsequent sale passed noTitle to the purchaser at the execution sale, as against the subsequent grantee. There is another ground upon which the decree may be affirmed, which is, perhaps, more satisfactory. The law is, as this court has declared in White v. White, 89 Ill. 460, that when the grantor of real estate remains in possession, all persons acquiring title from the grantee are chargeable with notice of all the claims of the grantor. In this case it appears, from the evidence preserved in the decree, that Elizabeth Bonham and complainant have been in the full, complete, open and notorious possession of the premises, by themselves and tenants, cultivating and occupying the same since before the making of the deed to Susan A. Bonham. That was notice to defendant, before he purchased the land at execution sale, of the equitable rights of the parties in-possession. Besides that, he was notified, long before the sheriff’s sale, that Eobinson had not then, and never had, any interest in the land, and that he only held the legal title for the benefit of Elizabeth Bonham, the real owner. Defendant is in no sense an innocent purchaser,—certainly not in that sense that he can claim the protection of the law. The doctrine of express trust insisted upon has no application to the facts of this case, and need not be discussed. The decree of the circuit court will be affirmed. Decree affirmed.