Grundies v. Reid

107 Ill. 304, 1883 Ill. LEXIS 263

Opinion

Mr. Justice Sheldon

delivered the opinion of the Court:

At the time (December 2, 1875,) Reid, Murdock & Fischer made a loan to Conrad Eickenberg of $4500, and took from him a trust deed on the lot 19 in controversy, and lot 20, to secure the loan, the public records showed a perfect title to the property to be in Conrad Eickenberg. Against such apparent title appellant claims to have a paramount title, derived under a judgment against Charles Eickenberg, rendered on May 22, 1875. Apparently they are different persons, and a judgment against Charles Eickenberg would not affect the title to land in Conrad Eickenberg. But the evidence shows that Conrad Eickenberg was sometimes known and called by the name of Charles Eickenberg, and that the aforesaid judgment was in fact rendered against Conrad Eickenberg by the name of Charles Eickenberg. The public records do not show this. Our law protects the purchasers of real estate in their purchases of the same as the title appears of record, unless there be notice of something to the contrary. In order, then, to affect appellees’ title' derived from Conrad Eickenberg by a prior judgment standing against Charles Eickenberg, it is incumbent on appellant to make proof that at the time Eeid, Murdock & Fischer took their trust deed from Conrad Eickenberg they had notice that such judgment had been rendered against Conrad Eickenberg by the name of Charles Eickenberg. As before said, the records show nothing of this. There is no pretense of any actual notice. If Eeid, Murdock & Fischer were chargeable with any notice, it Avas merely constructive notice,—such notice, only, as the laiv would imply from other facts and circumstances.

The evidence in the ease establishes clearly that Eeid, Murdock & Fischer, or Mr. Freer, their attorney, had no knoAviedge or information whatever, at the time of the making of the loan and of the execution of the trust deed, of Eiekenberg ever having been called or knowm by any other name than Conrad Eickenberg, or of the existence of the Klickman judgment,—the one under which appellant claims,—against Charles Eickenberg, or of its being claimed that the judgr ment ivas a lien on the property of Conrad Eickenberg. All that we find in the entire evidence which can be claimed as showing any notice, is what appeared in the abstract examined by Mr. Freer of the note of a sale of lot 20,—one of the two lots embraced in the trust deed,—to Eutter, upon a judgment in favor of the Traders’ National Bank, which had been rendered against one August Klenke and Charles Eickenberg, and it is the only question in the ease, as we regard, whether that circumstance constituted notice of the exist-' ence of the Kliekman judgment rendered against Conrad Eickenberg by the name of Charles Eickenberg.

That note on the abstract showed, to be sure, that lot 20, one of the two lots which Reid, Murdock & Eischer were about to take a trust deed of from Conrad Eickenberg, but not the lot in question, had been sold on a judgment against August Klenke and Charles Eickenberg; But might not a purchaser of ordinary prudence say, what of that ? and dismiss the matter without further thought. He would see that it was a ease of selling one man’s property on an execution against another man, and that it would not affect the title at all. Charles Eickenberg and Conrad Eickenberg were apparently different persons. There was no such relation between the names as to indicate that they were one and the same person. The title to the lots was in Conrad Eickenberg, and his title could not be affected by a sale of one of them' under an execution against Charles Eickenberg. ■ We think an intending purchaser might so conclude, and act in entire good faith, without inquiring further. Had the judgment and execution been against August Klenke alone, and the sale of lot 20 been under such execution, it would seem clear that Reid, Murdock & Eischer would not, from that circumstance, have been put upon any inquiry how the lot came to be thus sold. The judgment and execution being against Charles Eickenberg, as well as Klenke, would seem to differ the ease but little. There would be the essential thing that the judgment and execution were not against the same person, apparently, as the one who held the title. Erom this circumstance, noted in the abstract, there would be no necessary inference that’ Conrad Eickenberg and Charles Eickenberg were one and the same person, and so put a purchaser from Conrad Eickenberg upon an examination whether there were not judgments against Charles Eickenberg. Other presumptions might be indulged, as, that there had occurred a mistake in selling one man’s land on an execution against another person, or that there had been some misapprehension about the name, in that one particular case, in rendering judgment against Conrad Eickenberg by the name of Charles Eickenberg. But in McMechan v. Griffin, 3 Pick. 154, it was said, with reference to notice of an unregistered deed: “The fact of notice must be proved by indubitable evidence,—either by direct evidence of the fact, or by proving other facts from which it may be clearly inferred. It is not, in such case, sufficient that the inference is probable,— it must be necessary and unquestionable.”1

Whether there may not be a greater strength of proof required to affect a purchaser with notice of an unregistered deed than in other eases, as has been held, we will not stop to consider. In Doyle v. Teas, 4 Scam. 250, the principle of the distinction was doubted. Appellant’s counsel remark upon the supposed fact that Mr. Freer, the attorney of Beid, Murdock & Fischer, caused entry of the satisfaction of the Traders’ bank judgment to be made at the time of the loan, as evincing knowledge that that judgment was a lien on lot 20; but there is no evidence of that fact. Mr. Freer testifies, explicitly, that he had no knowledge of the satisfaction of that judgment, and all that the evidence shows on the subject is, that Butter’s understanding was, the judgment was paid from the proceeds of the loan. It is not lot 20, which was sold under the judgment in favor of the Traders’ bank, that is involved here, but lot 19, sold under the Klickman judgment, and it is this Klickman judgment against Charles Eickenberg in regard to which it is necessary to make proof of notice. All, we think, that can be said as to the sale of lot 20, one of the two lots Eickenberg had title to, under a judgment and execution against Charles Eickenberg, is, that it was a suspicious circumstance, which might have led a person of extreme caution to inquire and find out how it had come that that lot had been sold on an execution against some one else. But suspicion is not enough. As said in McConnel v. Reed, 4 Scam. 123, “bare suspicion will not raise an inference of fraudulent intent. ” The point of inquiry here, is, whether this note on the abstract of the sale of lot 20, under a judgment against August Klenke and Charles Eickenberg, was a circumstance sufficient to charge Reid, Murdock & Eischer with notice that Conrad Eickenberg went by the name of Charles Eickenberg as well as Conrad Eickenberg, and to impose upon them the duty of examination as to judgments against Charles as well as against Conrad Eickenberg,—whether it was a circumstance which would have led a man of ordinary prudence and caution to make inquiry in regard to that fact, and that the not doing so was gross negligence, and of the character of fraudulent intent. In a discussion of this subject of constructive notice, by Vice Chancellor Wigeam, in Jones v. Smith, 1 Hare’s Ch. 55, he thus remarks: “If, in short, there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledge of facts which the res gestee would suggest to a prudent mind; if mere want of caution, as distinguished from fraudulent and willful blindness, is all that can be imputed to the purchaser,—then the doctrine of constructive notice will not apply; then the purchaser will, in equity, be considered, as in fact he is, a bona fide purchaser without notice. This is clearly Sir Edward Sugden’s opinion, and, with that sanction, I have no hesitation in saying it is mine also.” In Ware v. Lord Egmont, 4 De G. M. & G. 473, the Lord Chancellor Gbanwobth, in giving judgment, said: “The question upon constructive notice is not whether the purchaser had the means of obtaining, and might, by prudent caution, have obtained, the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence.” And see 2 Sugden on Vendors and Purchasers, (14th ed.) 571, 572; Doyle v. Teas, 4 Scam. 202.

But further, we do not see that any notice with respect to lot 20 would impose upon appellees any duty toward one having interest only in lot 19. As regards such person, all its significance would appear to be in its affording a presumption that therefrom appellees were led to make inquiry and actual ascertainment of the fact that Eickenberg was known and called by the name of Charles, as well as by the name of Conrad. But when proof positive is made, as it was here, that appellees were not led to make such inquiry, and never did have any knowledge whatever of Conrad being known or called by the name of Charles, or of any judgment ever being rendered against Conrad by the name of Charles, it destroys the presumption, and all effect of the notice would seem to be done away with. Charles Eickenberg apparently is not connected of record with the title. We have frequently decided that a purchaser is not chargeable with constructive notice of all. instruments and incumbrances of record, but only of such as lie in the apparent chain of title, or may have-been made by one in some way connected with the property involved in interest, and that brought home to the notice of the purchaser. Manly v. Pettee, 38 Ill. 128; Irish v. Sharp, 89 id. 261; Carbine v. Pringle, 90 id. 302.

Finding no error in the decree, it must be affirmed.

Decree affirmed.