Cunningham v. Thornton

Lacey, J. The only question raised by this record is as to the priority of the various incumbrances of the appellants and the appellee. It is admitted by appellee in his brief that “the evidence does not show appellants had any actual knowledge of the trust deed of appellee atthe time they took their several trust deeds and mortgages.” The only question, therefore, is whether the appellants, at the respective times when they took their several trust deeds and mortgages, were chargeable with constructive notice of the existence of the appellee’s trust deed. Two propositions are claimed on the part of the appellee) the correctness of either of which entitles him to priority. They are as follows: 1. The appellants are chargeable with constructive notice of appellee’s trust deed, without regard to the sufficiency of the description in it to pass the title. 2. The original description in the first deed from Moffit to John Thornton, as well as that in appellee’s trust deed which followed the first, was sufficient to convey title to the land in controversy, notwithstanding the error in it. These are the propositions upon which we are called on to pass, and the solution of which is decisive of the case. Both appellants and appellee claim liens through John Thornton, who was the grantee of Alvah Moffit: the latter through a deed misdescribing the land in question, following the supposed erroneous description in the first deed from IVToffit to John Thornton, and the former, though conveyances subsequent in time and record to appellee’s lien, through a supposed corrected description subsequent to the so-called corrected deed from Moffit to John Thornton. We will first pass on the question of the sufficiency of the description to pass the title. We can not regard the description in the deeds, mortgages and trust deeds, executed before the correction, as good. It is insisted by appellant that after rejecting the portion of the description that is false, there still remains enough, in view of the parol evidence, to locate the land on the proper tract; that is, the one intended by the grantor. We cannot agree with this view. The land meant to be conveyed was in the E. of the 2í. W. J, Sec. 13; the starting point to measure it by metes and bounds was at the northwest corner of said tract. If the false portion, the “ northeast quarter,” be rejected, then the land would be located in the east half of the section. It would then read, “ a part of the east half of section 13, beginning at the northwest corner of said tract,” a quarter of a mile east of the true point. The true starting point would still not be found. If the entire description, “east half of the northeast,” be disregarded, we then have no starting point except the “northwest corner of the tract,” of fifteen acres. From this imperfect description the land could not with any certainty be located. There is no point marked or described on the railroad where the line in the third call for distance crosses it, nor is there any monument or point designated on the bank of “Kickapoo creek,” where the fourth call for station is made. So, without the starting point, the land can not be located. In order to help out a defective description the law will not allow the false description to he rejected and the correct one inserted. This would be making a new description and changing the written description by parol evidence. This alone a court of chancery has the power to do. Words are not allowed to be inserted even to help out a description in a will, in order to give effect to the intention of a testator, where courts are more liberal than they are in regard to deeds, for deeds may be corrected in equity according to the intention of the grantor and grantee, but not so with wills. They must stand or fall by the description therein contained. Mistakes can not be corrected. Decker v. Decker et al, 121 Ill. 341; Kurtz v. Hobner, 55 Ill. 514; Barven v. Allen, 113 Ill. 53. “Parol evidence may be used to establish and identify the object of the call in the deed, and the. grant will only be held void for uncertainty where, after resort to oral proof, it remains a matter of conjecture what was intended by the instrument.” Smith v. Crawford, 81 Ill. 296. After hearing the parol evidence in this case, and if the starting point be rejected, it would still be a matter of conjecture where the land was located. The njxt point is, were the appellants bound to take notice of the record of appellee’s trust deed.? We are of the opinion that they were not. On account of the misdescription in appellee’s mortgage, it -was not in the apparent chain of the title of the land in question. It did not describe it. The records did not show that the land in question had been conveyed by John Thornton at the time the appellants acquired the trust deeds and mortgage. The appellants would not be compelled to search the records to ascertain whether John Thornton had made some deed in which facts were recited by means of which, added to the knowledge they were compelled to have, i. e., that John Thornton had held the land by misdescription for several years, the appellants would be put on inquiry. The law, we think, is well settled that such conveyances of record as are in the apparent chain of title are alone required to be noticed by subsequent purchasers and incumbrancers. Crabtree v. Pringle, 90 Ill. 302; Wait et al. v. Smith, 92 Ill. 385; Rodgers v. Kavanaugh, 24 Ill. 583; Irish v. Sharp et al., 89 Ill. 261; Dexter v. Harris, 2 Mason, 531; Manly v. Pettee, 38 Ill. 128. It would be most unreasonable to require appellants to search the records through and examine every deed executed by John Thornton subsequent to the time he had accepted the defective deed from Moffit in 1867, and read all such deeds to ascertain if he had not made some conveyance of this land by a misdescription similar to the one contained in his deed from Moffit. All that the appellants were bound by law to take notice of was that Thornton had for some time held some kind of a claim on the land under a deed in which it was misdescribed, and that the deed had been corrected. Having this knowledge, if, as a matter of fact, appellants had seen the trust deed of appellee in which the land was similarly described, it would have been, as wTe think, good notice; but notice of such trust deed can not be inferred from the mere fact of its being of record. The case of Dwight v. Taylor, 49 Mich-614, is not in point. In that case the court held there was no want of a legal description in the conveyance by the record by which all were bound. The observation of the judge writing the opinion, at its conclusion, that if the appellant had examined the record he would have been notified of appellee’s title, was unnecessary to a decision of the case and was mere obiter dictum, the description being held to be good. Besides, the remark was correct, at all events, as to notice, the title being held legal. But if the opinion is to be understood to decide that even if the description had been bad, the subsequent grantee should be held to notice, we do not approve it, and think it not in harmony with the opinions of our own Supreme Court and other courts of high authority. It follows from what we have said that the court below erred in holding that appellee’s trust deed had priority of lien over appellants’ trust deeds and mortgages, and decreeing that the former should be first paid. Appellants’ trust deeds and mortgages should have priority as to appellee’s, and as to each other in the order of their record. The decree of the court below is therefore reversed and the cause remanded to the court below, with directions to render decree in accordance with this opinion. lieversed and remanded.