Brief for Defendants in Error.

Why was that record introduced? If there is anything in it operating as an estoppel, the defendant should have made that defence by plea or otherwise, informing complainants of the particular part of the record and the facts therein relied on, and, having failed to do so, they can not avail themselves of fact therein in estoppel. Smith v. Whittaker, 11 Ill. 417; Bigelow on Estoppel, 589–90.

any

The bill in that case was not sworn to, therefore no statement in it can be set up in estoppel of complainants' rights in any other suit or proceeding, for the reason the facts stated in such bills are generally the mere suggestions of counsel, made for the purpose of obtaining an answer to the bill. 1 Greenleaf's Ev. sec. 551 and notes; Harding v. Town of Hale, 61 Ill. 196-7.

But certainly there is nothing in that case, even if the bill had been sworn to, which can upon any known principles of law be invoked by way of estoppel to bar complainants from obtaining the relief prayed for in this bill. Letcher v. Morrison, 27 Ill. 209; Dorlarque et al. v. Cress et al. 71 id. 380; Harding v. Town of Hale, 61 id. 196-7; Fetrow v. Merriwether, 53 id. 275; McClurken v. McClurken, 46 id. 327.

Mr. JOHN M. CREBS, for the defendants in error, after stating the facts at considerable length, contended that, as against the complainants, the defendants at the time of the commencement of the suit, had the full, perfect and complete legal title to the land, there being nothing of record to show that complainants had any claim or interest therein; that the defendants, by reason of the part payment of the purchase money, became seized of the equitable title to the lands, and that unless the complainants have an equitable title, based upon payment of the purchase money and the payment shown by testimony, they have no standing in court.

He also contended that complainants had, in fact, no title of which the defendants could take notice by any inquiry.

Opinion of the Court.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by the complainants, the executor and heirs at law of the estate of John T. Jones, deceased, against James A. Miller and others, to enforce the specific performance of a contract under which Robert Kirkham sold to John T. Jones certain real estate in White county, consisting of two hundred and forty acres, and to compel defendants to convey the title by them held to complainants. On the hearing the court rendered a decree dismissing the bill, and the complainants sued out this writ of error.

The land in question was originally owned by Robert Kirkham, who, in March, 1851, mortgaged it to one Dickinson for $2400, who placed the mortgage on record. On the 10th day of March, 1855, Kirkham sold and conveyed the land to James Edwards. This deed was placed upon record. Afterwards Edwards discovered that the mortgage given to Dickinson was not canceled of record; he became dissatisfied with the purchase, and complainants contend the trade was canceled between Kirkham and Edwards, the latter executing a deed. conveying the lands back to Kirkham, which was dated January 12, 1858, and left in the hands of Benj. P. Hinch. The notes, amounting to $400, which Edwards had given for the land, were also left with the same party.

After this transaction, and on the 9th day of November, 1860, Kirkham executed and delivered a bond for a deed to John T. Jones, in which he agreed to convey the lands on certain conditions named in the bond. This bond was never recorded, and the deed from Edwards to Kirkham was not placed upon record. Jones died in 1863, but he in his lifetime, and the executors of his estate after his death, claimed the land and regularly paid the taxes thereon, except for the years 1874 and 1875, from the date of the bond. On the 5th. day of December, 1874, Edwards conveyed the lands to James A. Miller, one of the defendants, but no consideration was paid for the conveyance. On the 21st of April,

Opinion of the Court.

1875, Miller sold and conveyed to Franklin Hale, one of the defendants, forty acres of the land for $333.33, and about the same time he sold John Hale, a son of Franklin Hale, eighty acres of the land for $666.66. John Hale, soon after his purchase, died, and his widow and heirs were made defendants in the bill. The remaining one hundred and twenty acres are still held in the name of Miller. On the 8th day of October, 1875, and before the commencement of the suit, Kirkham and wife, in pursuance of the terms of the bond which had been given to Jones, conveyed the land to the executor of the estate of Jones.

The proof is not clear in regard to the amount Jones agreed to pay for the lands, nor is it entirely clear that the whole amount has been paid; but there is no controversy between Kirkham and complainants, in regard to this matter, and if it be true that the whole amount of the contract price has not been paid, that fact, so long as Kirkham is satisfied, does not concern the other defendants, or in any manner affect their rights in the lands. The complainants derive their title to the lands after Kirkham had sold and conveyed to Edwards, and, unless Kirkham had obtained the title back from Edwards, of course he had nothing to sell, and complainants obtained no right or title to the land under the bond given by Kirkham to Jones.

The important question in this case, then, is whether the trade between Edwards and Kirkham was canceled and the lands reconveyed. This question will have to be settled by the evidence. It is quite clear, from the evidence, that the price Edwards agreed to pay for the land was $400,-it is admitted in the answer that this was the amount. Notes were executed by Edwards to Kirkham for this amount, except perhaps $50, which was paid in cash.

Edwards, although an interested party, testified that on the 11th of January, 1858, he met Kirkham at New Haven, and told him he must clear the title to the land or give back his notes and money; that Kirkham agreed to pay back the

Opinion of the Court.

money, give up the notes, and pay him $50 for his trouble. He finally agreed to take a load of corn for his trouble, which he received. He executed a deed conveying back the property, which was left with B. P. Hinch, to be delivered to Kirkham when he surrendered Edwards' notes and repaid the money he had received.

Kirkham, in his evidence, does not agree with Edwards. He says they agreed to cancel the trade. "I was to give up his notes, and he was to make me back a quitclaim deed." He says the notes were left with Hinch to be given to Edwards, and his impression is that the amount Edwards had paid on the land was paid back to him.

Mr. Hinch, the custodian of the notes and deed, is dead, but his son, who seems to be entirely disinterested, says that he found the deed from Edwards to Kirkham, and the notes for the $400, among his father's papers; that in the fall of 1874 he had a conversation with Mr. Edwards in relation to the transaction; that Edwards told him he had paid Kirkham $50 and given his notes for the balance; that after he bought the land he found it was incumbered for four or five thousand dollars; that he went to Kirkham about it, and he paid him back the $50 he had paid, in corn, and they agreed that Kirkham should leave Edwards' notes with his father, and he was to make out a deed; when executed by Edwards and wife, conveying back their rights to the lands to Kirkham, his father was to deliver up to Edwards his notes, and Kirkham was to have the deed, and the trade was to be canceled; that he, though he and his wife had executed the deed, did not get his notes, but he didn't care for that, as the notes were now void by the Statute of Limitations.

The truth of the statements of this witness seems to be corroborated by the conduct of Edwards and Kirkham after the arrangement was made, and is in harmony with all the facts in the case. If Edwards had not canceled the trade, and given up the land, why did he abandon it, and set up no

Opinion of the Court.

claim whatever to the property after 1858 until 1875, when he found the deed from him to Kirkham was not on record?

Edwards paid no taxes on the land, exercised no acts of ownership over it, and although he resided in the same neighborhood, was never heard to claim the property after he arranged with Kirkham to cancel the trade, until 1875. This conduct on his part shows clearly that the intention was to convey the property back to Kirkham by the delivery of the deed to Hinch.

Again, the conduct of Kirkham is consistent with the theory that he had taken back the land, and irreconcilable with the idea that he had not. It is unreasonable to believe. that he would have sold the land to Jones if he had not taken it back, when Edwards resided in the same neighborhood, and would have known at once of the transaction, and doubtless denounced and condemned it.

We are, therefore, of opinion that the testimony shows that Edwards conveyed the property back to Kirkham, that the delivery of the deed to Hinch for and on behalf of Kirkham, was a delivery to Kirkham, and the delivery of the notes, which were given for the land, was a surrender of them to Edwards, and thus whatever title Edwards had acquired under his purchase was reconveyed and became vested in Kirkham.

The next question presented by the record is whether Miller and the Hales are bona fide innocent purchasers without notice of the rights of complainants in the lands. If they are, then, although Edwards reconveyed the land back to Kirkham and he sold to Jones, they are entitled to be protected in their purchase. The land was vacant; the bond from Kirkham to Jones was not on record, nor was the deed from Edwards to Kirkham on record. So far, therefore, as notice under the recording laws is concerned, neither Miller nor the Hales were chargeable with notice of the prior conveyances. But Miller was not a bona fide purchaser of the lands; he paid nothing for the conveyance made to him by Edwards. The substance of the arrangement made was that Edwards