Keys v. Test

33 Ill. 316

• Court: Illinois Supreme Court
• Decided: January 15, 1864
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

The evidence in this record establishes beyond a reasonable doubt the fact of a Iona fide sale for a valuable consideration paid, and possession immediately taken thereof, of the farm of Nimrod McPherson, to his father Benjamin McPherson, and of the subsequent sale by Benjamin, with the assent and partial procurement of Nimrod, to one Hummer, who paid full value " for it, and went into possession, claiming it as his own by this purchase. Hummer remained on the premises, so claiming, about eighteen months, and sold it for value to the complainant Test, who went into possession and made valuable and lasting improvements thereon. The sale by Benjamin to Hummer was with the knowledge, and, from the testimony of Brewer, at the instance of Nimrod, who at the time disclaimed all title to it in himself, and said he had sold-it to his father Benjamin. In equity he is estopped from setting up his title now. He has by his own declarations and acts induced' the purchase from Benjamin, and he cannot now in the absence of all fraud, be allowed to allege against them.

It is very clear Benjamin McPherson could have compelled a a deed under this proof from Nimrod, and his Iona fide assignee for value ought to be in the same position. We are satisfied, from the testimony of the two Matthews, Brewer and Boggess, that here was a fair sale for a valuable consideration of this property, possession taken and lasting improvements, made, which, under repeated decisions of this court, are sufficient to take the case, and do take it out of the operation of the statute of frauds and perjuries, however much we may regret courts have reached such a conclusion. Ramsey v. Liston, 25 Ill. 114; Stevens v. Wheeler, id. 300; Blunt v. Tomlin, 27 id. 93. The open and notorious possession by the complainant of this land was sufficient to put subsequent purchasers on inquiry,, and operates as notice- to them of a claim to the land. The case of Doyle v. Teas, 4 Scam. 202, is full on this point.

The purchasers under Nimrod, alter his sale to his father of the premises, claim to be bona fide purchasers. To make them such they should allege and show a consideration actually paid. This they have not done. Brown v. Welsh, 18 Ill. 343.

We perceive no error in the decree, and therefore affirm the same.

Decree affirmed.