#### John Doe, ex dem. Murray McConnel v. Maro M. M. Reed.

Error to Morgan.

1. Recording law — purpose of. The obvious design of our recording laws is to protect purchasers against latent equities.

2. Deed — intent, not form, toill govern. Formerly it was essential to the operation of a deed of release, that the grantee should have an estate or interest in the land released; but many of the subtle distinctions and ceremonious forms, peculiar to the ancient modes of transferring titles, are abolished; and the policy of the law now requires that courts should look rather to the intention of the parties, in making the deed, than to the form in which that intention is expressed.

3. Same — quit claim. A deed of release and quit claim is as effectual for the purpose of transferring title to land, as a deed of bargain and sale; and the prior recording of such deed will give it a preference over one previously executed, but which is subsequently recorded, (a)

4. Recording law — priority of deeds. As a general rule, the deed first recorded must prevail over a prior unrecorded deed, where the deed first recorded is made in good faith, and the grantor intended to make a second conveyance of lands which he had previously conveyed. But where the terms of the second deed do not necessarily embrace the land previously conveyed, and, on the contrary, are such as to show that it was not the intention of the grantor to include them, the court will give it such construction as not to embrace them, and will not allow it to operate to the prejudice of the first purchaser.

5. Same — same. The statute gives a priority to the deed first recorded only where the grantee has acted fairly and in good faith. If, at the time of making his contract, he had notice of a prior unrecorded conveyance, he is regarded as acting in bad faith; and neither the principles of justice, nor the policy of the law will allow him to avail himself of his priority of record. (b)

, 6. Same — bar to subseqttent deed. The recording of a deed is a general notification of its contents, and every subsequent transfer of the lands included in it is deemed fraudulent. In pursuance of this principle, it has been settled, that notice of a prior conveyance, in any other way, is equally effectual to bar the subsequent deed.

*1227. Same — stispicion of title. Bare suspicion of title in another is not sufficient to raise an inference of fraudulent intent. There must be either actual or constructive notice of title.

8. Real property — notice by possession. Where a purchaser has sufficient information to lead him to the knowledge of a fact, he is deemed in law cognisant of the fact. The decisions are uniform, that possession of land is notice to a purchaser of the possessor’s title.

9. Same — notice as evidence. In some cases, possession is the foundation as well as the evidence of title, and under all circumstances, it is such indicia of ownership as should induce a prudent purchaser to examine into its foundation.

10. SAME' — quitclaim deed construed. Where a person executed a quit claim deed, in the usual foim, demising, releasing, and for ever quit claiming all right, title and interest, in a certain tract of land; and subsequently executed a deed of bargain and sale to the same person, of the same premises, therein declaring that it was his intention, in his former deed, to tiansfer and convey absolutely all right, title, and interest that he then had in and to the land mentioned in the quit claim deed: Held, that the quit claim deed only conveyed the land to which he had right and title at the date thereof; and that the deed could not operate upon premises which the grantor had before fairly sold and conveyed, for a valuable consideration.

11. Same — adverse possession. Adverse possession, improvement of the premises, and exercise of ownership over them, for a number of years, where the same is known to a subsequent purchaser, amount to notice of title, and are as certain and definite as could be given by recording the evidences of title.

12. Same — same', evidence to prove. Parol proof is admissible, in an action of ejectment, to show possession adverse to the plaintiff’s lessor, and that the defendant, and those under whom he claims title, have made valuable improvements upon the premises in question, and that the plaintiff’s lessor lived in the town where the premises are situated, and a part of the time within sight of the same; and such proof is evidence of notice of the possessor’s title.

This cause was heard in the court below, at the November term, 1841, before the Hon. Samuel D. Lockwood, with- [* 118] out a jury. Judgment was rendered for the defendant, and the plaintiff brought the cause to this court by writ of error.

M. McConnel and J. A. DcDougall, for the plaintiff in error:

In this case the plaintiff in error contends, that by operation of the statute 27th Henry VIII., transferring uses into possession, whatever instrument would create a use would convey a title in fee; that a deed of release and quit claim would create a use in favor of the grantee, and would operate just as completely to convey a title as a deed of grant, bargain, and sale. Such is the law of this country.

At common law, livery of seizin was necessary to invest with title. The livery was the notice to the world; and until livery was made, the conveyance did not operate. Registration was substituted in place of livery of seizin, and operated as the notice to the world. Until that notice is given, the title of the grantee is inchoate except inter partes. Therefore, in this case, the defendant in error never had the perfect title, until after the plaintiff obtained a perfect title.

The case at bar is. different from the case in 4 Peters’ Oond. R., in this, that the conveyance there referred to was a general one including all the lands in a state, without describing them. In *123this case the conveyance described the lands, by metes and bounds, and conveyed a specified property. It might well be inferred, in the former instance, that the party did n'ot intend conveying, by the last deed, the land in controversy; no such presumption could exist in this case.

The decisions sustain the position that there must be a notice of the previous title brought home to the party; that there can be no implied notice; that the fact of there being another person in possession is not any reason why the purchaser should be put on his guard. If it be a reason, in New York, it is because the law in that state prohibits a purchase where there is an adverse possession. In this state the statute expressly authorizes such purchases. Again: under our system of registration, it is the duty of every purchaser to record his title. If he neglects it, it is at his peril. A purchaser is not, and ought not, to be required to look beyond the records which the law provides in investigating title; and although actual and certain notice out of the record might bind him, the court will look unfavorably upon any other notice, as it destroys the stability of estates, and the certainty of the law, by favoring a man’s own negligence.

Again: in New York where adverse possession defeats a title, the presumption of title in the possessor may be a reason why a purchaser should be on his guard; but the presumption here is that the person in possession holds under and subject to the title of record.

So that for all these considerations, it seems clear that there must be either notice or previous title of record, or [* 119] actual notice to the person, to defeat a subsequent conveyance.

They cited R, L. 130,138; Gale’s Stat. 149, 152, § § 4, 15 ; 4 Kent’s Com. 170, title Bargain and Sale, 495; 10 Johns. 456, 505-6; 1 Cooke 119, 126; Jackson v. Green, 3- Johns. 424 ; Jackson v. Sharp, 9 Johns. 164; Jackson v. Elston, 12 Johns. 454.

Wm. Thomas, for the defendant in error:

First. No title passed to McConnel by the deed of release from Arnett, dated 21st March, 1835, because no privity of estate existed between the parties. McConnel had no possession, no right of possession, or claim to the lot, at that date; but the possession is shown to have been in a third person, claiming right and title adverse to McConnel. 4 Cruise’s Dig., title Deed, chap. 6, page 99 ; 2 Cooke 445, 452; Tuck. Blac. Com. 324; 4 Kent 482 ; 6 Comyn’s Dig., title Release.

Second. Admitting that the doctrine of the common law in relation to the operation' of a release has been changed by statute, still McConnel acquired no title, because Arnett had previously parted with his title. Brown v. Jackson, 4 Peters’ Cond. R. 291; 3 Wheat. 449.

*124 Third. McConnel acquired no title by the deed of bargain and sale dated 1st July, 1837, because Arnett’s title had previously been Vested in Rixford, and the deed only purports to convey the right and title of Arnett. But admitting that under the operation of th,e recording laws, and those relating to the conveyance of real estate, McConnel acquired title as against a previous grantee, whose deed had not been recorded, still this admission does not aid the plaintiff, because at the date of this deed, the defendant had a complete legal title of record.

Fourth.. McConnel has no right to recover, because he obtained title with notice of the rights of the defendant. He is not a bona fide purchaser within the meaning of the law. „The facts show his title and claim to be fraudulent, which is a good answer and defence to this action. Jackson v. Burgott, 10 Johns. 457 ; 3 Wend. 213 ; Robinson v. Rowan, 2 Scam. 500.

(a)

Cases Citing Text. Grantee accepting quit claim deed is bound by limitations it contains. Butterfield v. Smith, 11 Ill. 485, 487.

Any deed which conveys land, e. g. a quit claim, will convey covenants running with the land. Brady v. Spurck, 27 Ill. 478, 482.

Conveyance of such lands as grantor owns in certain county at time of conveyance passes all such interest as he is then capable of conveying, although he may have previously made voidable conveyance of such interest. Hamilton v. Doolittle, 37 Ill.473, 482.

Words in deed “ assign, transfer and set over” pass title to land. Fash v. Blake, 38 Ill. 363, 367.

Purchaser at judicial sale under decree, which finds defendants to be owners of land sold, has superior title to claimant under prior unrecorded deed from defendants. Harpham v. Little, 59 Ill. 509, 512.

Quit claim deed takes precedence of warranty deed, if former is first recorded. Brown v. Banner, etc., Oil Co. 97 Ill. 214, 215.

(b)

Records of county commissioners’ court showing sales of land are not constructive notice of such sales. Bourland v. Peoria County, 16 Ill. 538, 543.

Whatever is sufficient to put purchaser on inquiry is notice.. Merrick v. Wallace, 19 Ill. 486, 498; C. R. I. & P. R. Co. v. Kennedy, 70 Ill. 350, 362; Slattery v. Rafferty, 93 Ill. 277, 288.

Facts held not sufficient to put purchaser on inquiry. Grundies v. Reid, 107 Ill. 304, 312.

Possession of land is notice of all rights of possessor, legal or equitable. Prettyman v. Wilkey, 19 Ill. 235, 241; Metropolitan Bank v. Godfrey, 23 Ill. 579, 607; Cabeen v. Breckenridge, 48 Ill. 91, 93; Lumbard v. Abbey, 73 III. 177, 178; Franz v. Orton, 75 Ill. 100, 105; Conner v. Goodman, 104 Ill. 365, 369.

Possession of land is as effectual notice of possessor’s rights as recording deed under which he holds. Morrison v. Kelly, 22 Ill. 609, 626.

Wilson, Chief Justice,

delivered the opinion of the court: (1) Upon a trial of an action of ejectment, for the recovery of a lot of land in the town of Jacksonville, the plaintiff’s lessor, McConnel, produced, as evidence of title to the said lot, first, a certificate of entry from-the land office to Thomas Arnett, for 80 acres of land, dated the 25th of February, 1825; secondly, a deed of release from Arnett to McConnel, for the same 80 acres of land, [*120 ] dated the 21st of March, 1835, and recorded on the same day; also, a deed of bargain and sale, from Arnett to McConnel, for the same land, confirming and explaining the last mentioned deed of 1835, which was dated the first, and recorded the 3d day of July, 1837.

The lot in question was admitted to be part of the land described in the certificate and deeds referred to. It was also admitted that the defendant was in possession of the premises, at the time of service of the declaration in the cause.

The defendant then offered in evidence a deed from Arnett to Rixford, for the lot in question, dated May 12th, 1827, and recorded October 31st, 1836; and also several other deeds, constituting, as the plaintiff admitted, a connected chain of title to the said lot, from Rixford to the defendant. The defendant also proved that the premises were possessed by his grantors adversely to the plaintiff’s title, from 1829 until the present time; that a house was built upon the lot, in 1829, and had been occupied ever since by his grantors and himself; that additional improvements were made upon the lot, by the defendant, in 1832-3, and that the lessor of the plaintiff resided in-the vicinity of the premises in question, and in the same town in which the lot is situated, from a time previous to that at which both of his deeds *125were obtained from Arnett; and that during a part of the time, after the house was built upon the lot as stated, he had lived within view of the premises.

To the introduction of this parol testimony, as well as the deed under which the defendant claimed title, the plaintiff objected, but the court overruled the objection ; and the cause being then submitted to the court, upon these facts, without the intervention of a jury, the court decided in favor of the validity of the defendant’s title, upon two grounds; the first of which was, that the quit claim deed from A7'nett to McConnel, conveyed onty such title as the grantor really had at the time of its execu. tion ; and that Arnett’s deed to the defendant’s grantor, of the lot in question, made before, though recorded after, that to McConnel, had divested him of all title to the same, so that none could pass by his subsequent conveyance to McConnel; and, secondly, that the facts in the case were sufficient to amount to constructive notice to McConnel, of the defendant’s title, and consequently his conveyance was inoperative as to that title.

Several errors are assigned ; but the correctness of the adjudications upon these two points are all that require investigation. Both points must be adjudged to have been erroneously decided, to entitle the plaintiff to a reversal of the decision below; for if either of the positions assumed by the court be correct, it will constitute a bar to the plaintiff’s recovery.

Both parties, it is seen, claim to derive title from the same source. The conveyance under which the defendant claims title is prior in point of execution, by several [* 121] years, while the deed of release, etc., by virtue óf which the plaintiff claims, was first recorded, though subsequently executed. The plaintiff’s deed of bargain and sale was posterior, both in execution and recording, to either of the others.

The first question, therefore, that is to be decided is, as to the effect of the deed of release and quit claim, from Arnett to M’Con-nel. If that deed is construed to embrace the lot in question, from the fact that it was recorded before, although not executed until after, that under which the defendant claims, it must prevail over the latter one, by virtue of our recording laws; the obvious designs of which are to protect purchasers against latent equities.

Prior to the passage of the .statutes made for the purpose of facilitating the manner of transferring lands, it was essential to the operation of a deed of release, that the grantee should have some estate or interést in the land released ; but many of the subtle distinctions and ceremonious forms, peculiar to the ancient modes of transferring titles, are abolished, and the policy of the law now requires that we should look rather to the intention of the parties, than to the form in which it is expressed. A deed of release and *126quit claim is as effectual for the purpose of transferring title to land, as a deed of bargain and sale; and the prior recording of such deed will give it a preference over one previously executed, but which was subsequently recorded. In this respect there is no distinction between different forms of conveyance. As a general rule, the one first recorded must prevail over one of older execution, when made in good faith, and when it appears to have been the intention of the parties to convey again the same lands which had been previously conveyed. Rut where the tefms of the second deed do not necessarily embrace the land previously conveyed, and, on the contrary, are such as to show that it was not the intention of the grantor to include them, the court will give it such construction as not to embrace them, and will not allow it to operate to the prejudice of the first purchaser. This principle was settled by the supreme court of the United States, in the case of Brown v. Jackson, 3 Wheat. 448; and according to the spirit of the rule adopted in that case, the land in question cannot be considered to have passed to the plaintiff, by the deed under which he claims.

The case of Brown v. Jackson is essentially like the present one. The plaintiff claimed title to a tract of land in the state of Kentucky, under a deed from one Lee, which specifically described the land in controversy. To prove title out of the plaintiff, the defendant also produced a deed from Lee to Banks, granting all the right, title, and interest which he, the said Lee, holds, etc., of all land within the state of Kentucky, etc. This deed was executed after, but recorded before, the deed from [*122] Lee to the plaintiff, and there, as here, priority of record conferred superiority of title, and rendered this conveyance conclusive against the plaintiff’s claim, if its terms were construed to embrace the land previously conveyed to him. But the court was of opinion that the terms, “all the right, title, and interest which the said Lee holds,” etc., limited the operation of the last conveyance to the lands, the right, title, and interest of which were in Lee, at the date thereof; and consequently could not defeat the operation of the first deed upon land specifically transferred prior to that time.

The deed of release from Arnett to McConnel is in the usual form. By it the grantor remises, releases, and forever quit claims all right, title, and interest to all and every part of a legal subdivision of a tract of land forming part of the town of Jacksonville, and unexplained, would transfer all and every part of the •tract of land designated, the title to which the grantor had not previously divested himself, by a valid transfer "duly recorded. But the plaintiff himself has furnished such evidence of the intention of the grantor,, as forbids such an interpretation of the conveyance ; and upon the principle of the case of Brown v. Jack*127son, restricts its operation to the lands which the grantor was the real and bona fide owner of, at the time of its execution. This evidence is the deed of bargain and sale from Arnett to McCon-nel. This deed being posterior, both in execution and registry, to either that relied upon by the plaintiff or defendant, it could have been introduced only for the purpose for which it was made. It professes to be made for the purpose of removing all doubt and uncertainty as to the meaning and intention of the grantor, in making the deed of release to McConnel. It must therefore be conclusive against the plaintiff, as to the meaning of that deed— the limit and extent of its operation. By this deed the grantor declares it to have been his intention and design, in making the deed of release, to transfer and convey absolutely all right, title, and interest, etc., that he then had in and to said land. This explanation seems clear, and susceptible of but one meaning. He intended to convey all the land which, at the time.of the conveyance, he then had right and title to. That which he had before fairly sold and conveyed, for a valuable consideration, he certainly had no right to, and upon such parts of the land the deed of release was not intended to operate. Much of the land, it may be fairly inferred, had been sold, from the fact that it had been laid out into town lots, and buildings erected thereupon; the balance, then, that remained unsold, was intended to be conveyed to the lessor of the plaintiff. This construction is in accordance with the explanatory deed, and in conformity to the rule adopted in the case of Brown v. Jackson, and which, as the court there says, is a reasonable one, founded upon the apparent in- [*123] tention of the parties. Upon any other construction, the deed of release would be a fraud upon the prior purchaser; but in this way both deeds may well stand together, consistently with the innocence of all parties.

No objection can be raised by the plaintiff, to the adoption of the explanation of the deed of release afforded by the deed of bargain and' sale. It is a rule of interpretation furnished by himself, and he must abide the consequence of its application and effect.

The next question to be considered is that of notice; for, although the statute gives effect to the deed first recorded, in preference to a preceding unrecorded one, it does so only when the grantee of the first recorded deed has acted fairly and in good faith. If, therefore, at the time of making his contract, he had notice of the prior unrecorded deed, he is regarded as acting in bad faith, and neither the principles of justice, nor the policy of the law will allow him to avail himself of his priority of record to supersede the claims of a bona fide purchaser, and permit him to triumph in his fraud. The policy of the law requires every conveyance of real estate to be recorded in the county in which *128it may lie; and. if not so recorded, declares it to be void as against any subsequent purchaser, etc., of the same estate, for á Valuable consideration, whose conveyance shall be first duly recorded. The recording of a deed is a general notification of its contents; and every subsequent transfer of the same lands is deemed fraudulent. In pursuance of this principle, it has been settled that notice of a preceding conveyance, in any other way, will be equally effectual, and will countervail the want of recording. Bare suspicion, however, of title in another will not be sufficient to raise an inference of fraudulent intent. There must be either actual or constructive notice of title.

If is not pretended that the defendant’s title was recorded, or that the plaintiff had actual notice of it. The inquiry therefore arises whether the circumstances in this case are such as to amount to constructive notice to McConnel, of title in the defendant. It is laid down, as a general rule, that when a purchaser has sufficient information to lead him to the knowledge of a fact, he shall be deemed cognizant of that fact. The question of notice, under this rule, is often one of difficult decision; but in this case that fact does not depend upon circumstances of a doubtful or equivocal character. The decisions are uniform, that possession of land is notice to a purchaser of the possessor’s title. The possession being adverse to the claim of his vendor’s title, he is presumed to purchase subject to the title upon which it is founded. But without saying that possession out of the vendor is alwaj'-s notice to a vendee of the possessor’s title, we may say that the possession shown by the defendant in this case, together with the accompanying circumstances, constitute [*124] notice to McConnel, of his title. In some cases possession is the foundation as well as the evidence of title, and, under all circumstances, it is such indicia of ownership as should induce a prudent purchaser to examine into its foundation.

In this case the defendant, and those under whom he claims, had not only been in the adverse possession of the premises about eight years, but they had at different times improved the property, by the erection of valuable buildings. These are circumstances too strongly indicative of an interest in the land to be mistaken; and that they came within the knowledge, as they transpired within view of the lessor of the plaintiff, cannot be doubted. Prior to the first purchase of the land, and ever since, the lessor of the plaintiff had lived in the same town in which the premises are situated, and part of the time within view of them. He must therefore have had a knowledge of the possession of the defendant’s grantors, their improvements at different times, together with the continued exercise of ownership up to the time of his purchase.

The adverse possession, improvement, and exercise of owner*129ship for a number of years, by the defendant and bis grantors, all of 'which being manifestly known to the plaintiff’s lessor, amount to notice of title in the defendant, as certain and sufficient, as could be given by the recording of the evidences of his title.

There is no error, therefore, in the decision of the court below, either in the construction of the deed under which the plaintiff claims title, or in deciding the facts proved to be constructive notice to him of the defendant’s title.

The judgment is therefore affirmed.

Judgment affirmed.

(1)

Scates, Justice, did not sit in this cause, and Douglass, Justice, having been of counsel, gave no opinion. It was decided at the December term, 1841, but the opinion was not delivered till this term.