Hoover v. Redmond

Davis, J. This was a suit in equity, brought by appellee to set aside a sale of land, made under an execution issued on a judgment obtained by appellant against John and Benjamin Redmond, sons of appellee, and to remove the cloud upon the title caused by such sale. It appears by the record that on the 15th day of May, 1879, appellant recovered a judgment at law against John and Benjamin Redmond in the Circuit Court of Coles county, and within a year thereafter an execution was issued on the same, by virtue of which the judgment obtained by appellant became a lien on the lands of John and Benjamin Redmond for the period of seven years. On the 14th of December, 1883, the land in controversy was sold as the property of John Redmond, under au execution issued on such judgment, and was purchased by appellant for the amount of his judgment, interest and cost. On the 17th of April, 1879, about a month before the judgment of appellant became a lien upon the land of John Bedmond, he attempted to convey, by deed, to his mother, Bachel Bedmond, the west half of the northeast quarter of section thirty-five, town fourteen, north, range eight, east, in Coles county, Illinois, which appellee claims she purchased on that day from her son, John Bedmond, for the sum of twenty-four hundred dollars, but the scrivener who wrote the deed made a mistake in describing the land which the parties intended should be conveyed, he describing it as the east half instead of the west half of the northeast quarter of the section. This deed, shortly after its execution, was recorded as executed, and about the 1st of August, 1881, or about the time of the discovery of the mistake in the description of the land, the same scrivener who committed the original mistake attempted to correct it by erasing the word “ east ” and inserting the word “west” in the deed which he originally drew, and the deed as thus attempted to be corrected was again recorded. At the time John Belmond attempted to convey the land to appellee, it was occupied by Benjamin Bedmond, and appellee resided on a farm near by. A few days after she purchased the land she moved some quilts, double coverlets and a rocking chair into a bedroom not occupied by her son, Benjamin, which he was willing she should use. After she had purchased the laud and before the 15th day of May, 1879, she took up some shrubbery and pie plant roots and moved them from where she was living to the land she purchased, also rose bushes, peonies, pinks, and some currant bushes, and trimmed and trained up on wires her grape vine. She took actual possession of the land and commenced residing in the house on the premises a few days before the 1st day of January, 1880, but several months after the judgment of appellant had become a lien on the land. On the case, as made by the evidence, the court below decreed that the judgment obtained by the said John Hoover Was no lien upon the land in controversy as against appellee, and that the levy, sale and purchase were null and void, and that said John Hoover should be forever enjoined from taking out any deed Under his certificate of purchase, and pay the Costs. To reverse this decree, appellant prosecutes this appeal. On the trial in the circuit court, appellee was sworn as a witness, and testified to actual notice given by her to appellant, while the latter, who was also sworn as a witness for himself, testified with equal directness and as positively that he had never received any notice from appellee, or any one else, that Mrs. Bedmond had purchased the land in controversy, or had any interest whatever in the same. On the question of actual notice; the evidence being, as we conceive, equally balanced, it remains to be determined whether the decree of the court below can be sustained on the ground that appellee had such possession of the premises at the time appellant’s judgment became a lien upon thejland, as put him and all others dealing with the property upon inquiry, which, if properly prosecuted, would have led to the knowledge of appellee’s claim of title to the land and of the mistake made in the description of the land in the deed under which she claimed to hold the premises in controversy. The law°in this State is, that notice by possession of the premises, to be sufficient, must be of that open, visible character which from its nature is calculated to apprise the world that the property has been appropriated and is occupied; also who the occupant is, or from which the occupant may be readily ascertained. It must be of such a. character as, in its nature, is calculated to arrest the attention, and put any other person claiming title, upon inquiry. Truesdale v. Ford, 37 Ill. 210; Keys, impleaded, etc., v. Test, 33 Ill. 316; Strong et al. v. Shea et al., 83 Ill. 575. Such actual, notorious and visible possession of premises is sufficient notice to a subsequent purchaser, either at a private or judicial sale, of the occupant’s interest and title. Phillips v. Pitts & Co., 78 Ill. 73. When the judgment of appellant became a lien on the land of John Bedmond, appellee was residing with her family on another farm in the neighborhood, and the land in controversy was actually occupied by Benjamin Bedmond, and was in his open and visible possession. There was nothing to indicate to appellant or any other person who might wish to purchase the land, that appellee claimed any interest or title whatever to the premises. The few acts she did while residing with her family on another farm in the neighborhood, such as removing shrubbery, rose bushes, currant bushes and the like, and putting a few things in one of the rooms of the house on the premises occupied by Benjamin Bedmond, which a stranger might reasonably suppose belonged to the family in possession, was not such an open, visible, notorious and exclusive possession as was calculated to inform persons in the vicinity and those seeing the property, that some person had appropriated it and was using and occupying it for his own use. These acts were not calculated to arrest attention and put prudent and careful persons on inquiry to ascertain whether the person doing such trifling acts had any claim or title to the land upon which they were done. Had it been shown that Benjamin Bedmond, who was in the actual possession of the land at the time it is claimed to have been sold by John Bedmond to appellee, was the tenant of appellee, then his possession as such tenant would have been her possession, and inquiry should have been made of him, and if so made, appellant would have obtained full knowledge of the claim of appellee to the land, and of the mistake made in the deed conveying it to her. But no proof of such tenancy was made. We think the evidence fails to show that appellee had such possession of the premises as put appellant on inquiry, and that failure.to make such inquiry does not deprive him of the character of an innocent purchaser. The evidence therefore fails to sustain the decree of the court below, and it must be reversed and the cause remanded. Decree reversed.