Merchants' & Farmers' State Bank v. Dawdy

Mr. Justice Dunn delivered the opinion of the court: If Job Evans’ widow and daughter agreed to divide his land by exchanging deeds, so that the widow should become the owner in fee of the eighty acres involved in this suit and the daughter of the rest of the land, a consideration of any other question in the case is unnecessary. It is manifest that some agreement was made between them. The daughter married about six months after her father’s death and her mother a few months later. Soon after the latter event the mother made a quit-claim deed to the daughter of one hundred and thirty-five acres, and from that time the daughter was in the exclusive possession and control of that part of the land while the mother remained in the exclusive possession and control of the remaining eighty acres. Both Mrs. Dawdy and W. A. Short, the daughter’s husband, the daughter being dead at the time of the hearing, testified that Mrs. Dawdy was to have the eighty acres as her own and was to have a deed for it. It is objected to the testimony of these witnesses that it was incompetent and did not prove anything, because it consisted largely of statements of conclusions instead of facts and conversations and was given in response to leading questions which were objected to. A large part of the testimony is justly subject to this criticism, and the force of all of it is, in consequence, very much weakened. But it must be considered that Mrs. Dawdy was an uneducated woman, past seventy-one years old, testifying to events which occurred thirty-five years before she was a witness. It is not surprising that very little even of the substance of conversations or important circumstances can be narrated by her. But disregarding the incompetent testimony of these witnesses, enough remains to satisfactorily show, if it is true, that the mother and daughter agreed upon a division of the land by which each should be the owner of her portion free from any claim of the other. Without regard to the $800 which Mrs. Dawdy testified she had invested in the land, the adjustment of the respective rights of the parties was a sufficient consideration for the agreement to exchange deeds. In 1884, after the sheriff’s sale under which appellants derive their title, Mrs. Short and her husband made a quitclaim deed of the premises to Andrew J. Dawdy. Short testified that Dawdy agreed to redeem from the sheriff’s sale if they would make him a quit-claim deed. Mrs. Short was not present, but when Short told her about it she claimed she had no interest in the land but consented to make the deed. It is probable they thought, no deed having been made, that the sheriff’s sale would convey the title to the purchaser. There is some evidence in the record of statements by Mrs. Dawdy indicating that she claimed only a life estate in the land, and expected it, after her death, to go to Johnson. It is true that the record title of sixty acres was in Johnson, and it is not unnatural that she should be apprehensive of the effect of such condition upon her rights, should hesitate to make repairs, and should declare that she was going to have it as long as she lived and they could do with it what they wanted after she died. It was for the court to determine to what extent her testimony was discredited by her statements, and we cannot say, under all the circumstances, that the court erred in finding that the agreement for the division of the land was made as averred in appellees’ answer. Mrs. Bawdy has been in the exclusive possession of the premises in controversy since the death of Job Evans, in 1870. Her possession was notice to all persons of all her rights therein. Actual possession of land is notice equal to the record of a deed under which the party in possession claims. A purchaser is bound to inquire by what right or title the party in possession holds, and he will take subject to that title, whatever it may be. (Joiner v. Duncan, 174 Ill. 252; Coari v. Olsen, 91 id. 273.) The title taken by appellants and their grantors through the sale under execution against Mrs. Short was therefore subject to the contract between Mrs. Short and her mother, to the same extent as if that contract had been in writing and duly recorded. It is urged that it was error to admit in evidence the record of the deed from Mrs. Bawdy to her daughter for the one hundred and thirty-five acres without showing the loss of the original. The objection made to the introduction of the record was that it was incompetent and irrelevant. If the specific objection now urged had been made, the original would no doubt have been produced or its absence explained. The general objection will not avail where, if made specific, the objection might be obviated. Rich v. Trustees of Schools, 158 Ill. 242. We find no error in the record, and the decree will be affirmed. Decree affirmed.