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Morrison v. Kelly.

from the notice he had at and subsequent to receiving his first

conveyance.

The evidence shows that the trust deed was delivered. That is evidenced by its being in the custody of the trustee. But if it was not delivered to the trustee at the date of its execution, and even if it were necessary that it should be delivered to him, it was taken East and delivered to him by Mrs. Howland before Cushman attempted to purchase, which would be suffi cient. If a deed is delivered to a stranger, who has no authority to receive it, the grantee may ratify the act of the stranger, and the delivery will be good, even in cases where the deed is made without the grantee's knowledge. But in this case, if either Howland or his wife received the deed at the time of its execution, their interest in the title conveyed by the deed was such as to make such a delivery operative.

The question of good faith is one of fact for the jury, and while good faith will be inferred when the party having claim and color of title, holds possession and pays taxes for the period limited, bad faith may be shown by the other party. And whenever it appears that the occupant knew he was acquiring no title when he received his deed, or was acting in fraud of the true owner, the presumption of good faith is overcome. The evidence, however, fails to show a payment of all taxes legally assessed upon this land for seven successive years. Howland showed, by the collector's receipt, the payment of the taxes which had been assessed upon it for the year 1849, which bore date in March, 1850. He by that payment satisfied the tax and discharged both the land and owner from all taxes assessed upon the land for that year. From the moment that payment was made, there were no taxes in existence legally assessed for that year. The money existed, but its payment extinguished and discharged the tax, and when Cushman, in April following, paid an amount of money to the collector, corresponding in amount to the tax which had previously existed against the land, it was not in payment of the tax, because that had already been paid and had ceased to exist. There was at that time no tax legally assessed against the land, and his payment was not of a tax legally assessed, but it only amounted to a gratuity to the state, county, etc., which had no claim, and consequently no payment could be made to them or their officers. To constitute a payment, the money must be given in discharge of a debt, demand, assessment, or public charge, neither of which existed at the time Cushman gave this money to the collector. To permit the owner to defeat the occupant's payment, by paying an amount of money to the collector equal to the tax which had been previously paid by the occupant in discharge of all taxes assessed

Morrison v. Kelly.

on the land, would render the provisions of this statute inoperative, and would amount virtually to its repeal, as the holder of the better title would surely make such a payment once in seven years.

When the deed to Reed was recorded, it became notice to the world, and any person purchasing from Cushman after that time, took the title just as he held it. If Cushman was chargeable with notice when he purchased, his grantee, receiving a conveyance after the deed to Reed was recorded, would be chargeable with the same notice that Cushman had. It would, however, be different, if the trust deed to Reed had not been recorded in the proper office when they purchased. In that event, to resist successfully a conveyance from Cushman, actual notice or a knowledge of such circumstances as would put a prudent man. on inquiry, would have to be brought home to his grantee before his purchase.

It is urged that the court erred in refusing to give plaintiff's eighth instruction asked. It was: "If at the time of the occupation by Alexander, under Howland, the only legal title or claim that Howland had was under the deed from Green to Reed, then the possession of Alexander was under said deed, whether Howland disclosed to Alexander that Reed was the owner or not, and Alexander's possession would be notice that he was in possession under this deed to Reed." The possession of the tenant is that of his landlord, and it is the same, whether he acquires it from the owner or from his agent. Alexander could not have disputed the title of Reed, if Howland was acting as his agent. But in this case, as a means of notice, the occupancy by Alexander was the same notice to Cushman as if he had made his contract with and received his lease from Reed. Had Cushman seen Alexander and inquired of him how he was holding, he would have referred him to Howland, from whom, by inquiry, he could have learned the nature and extent of the title, and this instruction should therefore have been given.

The court erred in giving defendant's third instruction, as a delivery of the deed to Howland or wife as the beneficial parties to this deed, or a subsequent ratification of a delivery to any person, by receiving, holding or acting under it, or receiving it without disclaiming the act, would be a sufficient delivery, and would relate to its execution. This instruction should have been so modified before it was given.

The defendant's sixth instruction, as given, was calculated to mislead the jury. It asserts that notice given by Howland to Cushman, that he was the owner of the land, is not sufficient notice to Cushman of Reed's deed. We have already seen that the cestui que trust has such an interest in the deed as to be for

Eames v. Hennessy.

the purposes and to the extent of the trust declared and created by its provisions, the beneficial owner of the land, and Howland, in equity, was an owner of the trust created by the deed, and had the contingent remainder of the property, to appoint, by sale, its disposition. And had Cushman asked how he held, or what his title or interest was, he would have doubtless been fully informed. And we are of the opinion, that such a declaration or notice was sufficient.

The proof of notice of the existence of an unrecorded deed, must be made in the same manner, and its measure must be the same as that which establishes a fact in other civil cases. This we have seen is the principle established in the cases of Doyle v. Teas, Rupert v. Mack, and Mc Connell v. Read, where it is asserted that any circumstance which is calculated to put a prudent man on inquiry, is sufficient. The ninth instruction given for defendant was therefore incorrect.

The defendant's eleventh instruction was not properly qualified by pointing out which deed from Green to Cushman was referred to, whether the first or last. If it was applied to the first, by which no title passed, it was wrong, and if to the latter, as an abstract proposition, it was perhaps correct; but as it was given, the jury may have understood it as referring to the first and not the latter of these two deeds. But we cannot see why it should have been given, even if modified, as the deed came from the proper custody, and was received by Howland, who had, as we have seen, such an interest as would authorize him to receive it for the benefit of the grantees.

There are no other errors perceived in the record, of which the plaintiff has a right to complain. But for these errors, committed by the court below, the judgment of that court must be reversed, and the cause remanded.

Judgment reversed.

JAMES H. EAMES, Appellant, v. THOMAS HENNESSY, Ap

pellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS

An application for a continuance, on account of the absence of a witness, should not only show diligence, but that there are no others to prove the same facts, and that the witness may be in attendance at another term. A delay of six months, without serving process on a witness, is a want of diligence.

An officer may recover for his reasonable expenses, in keeping property levied on, by attachment or execution.

Eames v. Hennessy.

THIS declaration in assumpsit states that Eames, at Chicago, made his draft or order, in writing, for payment of money, usually called a check, on a banker, directed to E. H. Huntington & Co., requiring them to pay Hennessy or bearer, $109.20; that on same day said draft was presented to Huntington & Co., and payment demanded and refused, of which Eames had notice. By means whereof, etc. Common counts for money lent, money paid, money had and received, account stated, promises to pay, and breach.

Pleas filed, and affidavit of merits.

1st plea, general issue.

2nd plea, that the check was given without any good or valuable consideration, in this: that the same was for certain fees which Hennessy, as a constable in and for said county, claimed he had a right to charge Eames, but which, in fact, he had no right to charge; and the same was illegal, and without warrant of law; concluding with verification.

3rd plea, that at the time when, etc., Hennessy was a constable, and as such, set up and claimed certain fees to be due him from defendant, in virtue of his office, and for services by him rendered in the course of his office, and that the sole and only consideration for which the check was given, was in payment of the fees so claimed by him. That the fees were illegal, and the services for which they were charged, had not in fact been rendered by Hennessy, and so the consideration for the check had wholly failed; verification, etc.

4th plea, as to $100 of said check, same as last plea; and as to balance, payment; verification, etc.

Similiter added, and replications filed,

To 2nd plea, that the check was not given for fees which were illegal, and charged without warrant of law, in manner and form, etc., and concludes to the country.

To 3rd plea, that the consideration had not failed in manner and form, etc., and concludes to the country, etc.

To 4th plea, that the consideration of the check had not failed to $100, nor had Eames paid the balance, and concludes to the country.

Motion for continuance overruled. The cause was tried by court. Judgment at November special term, for Hennessy, for $127.72.

The errors assigned are: The refusal of the continuance; the finding the issues for appellee; the refusing motion for new trial; and the rendition of judgment for appellee.

W. T. BURGESS, for Appellant.

SCATES, MCALLISTER & JEWETT, for Appellee.

Eames v. Hennessy.

WALKER, J. This was an action of assumpsit instituted by Hennessy against Eames to the June term, 1857, of the Cook County Court of Common Pleas, on a draft or order from Eames in favor of Hennessy, drawn on Huntington & Co., for $109.20. The declaration contained a special count on the draft and also the common counts. It was averred in the special counts that the draft was drawn, presented and protested, by the drawers. The defendant below filed the general issue, a plea of no consideration, a plea of failure of consideration, and a plea of part failure of consideration. At the October term, 1857, the defendant filed an affidavit and entered a motion for a continuance on account of the absence of James Jones, one of his witnesses. The court overruled the motion, and the cause was tried by the court, by consent, without the intervention of a jury. And the court, on the evidence, found for the plaintiff below, and rendered a judgment against defendant below for $127.72, damages and costs of suit, from which he appeals to this court.

The first question presented for our consideration in this case, is, whether the court below erred in overruling the motion for a continuance. The affidavit states that defendant expected to be able to prove on the trial by James Jones, that in November, 1854, the plaintiff claimed to hold the schooner Baltic under a writ of attachment issued by a justice of the peace, and had placed the same in the hands of said Jones; that at the time of the levy the said Jones was the captain of said schooner, in the employment of the owners; that Hennessy had not paid Jones anything therefor, nor offered to do so, and no compensation was agreed upon by them, and that Jones made no claim upon Hennessy for taking care of the vessel. That within five days after the levy, Jones stripped her of her sails and loose rigging and towed her up the south branch of the Chicago river, where she was soon after frozen in and remained without any person in the actual charge of her, until the next spring; and that this suit was brought on a check given for fees claimed by Hennessy as a constable, to be due to him for taking care of the vessel. He then claimed that there was due to him about seventy dollars for fees, which defendant refuses to pay. The defendant, for the purpose of collecting these fees, undertook to sell the vessel, to prevent which, defendant gave the check for the amount claimed, and the only consideration thereof was the fees claimed in the attachment suit, the defendant having previously paid the judgment and costs in the attachment suit, except the fees claimed by plaintiff. That Jones, when the affidavit was made, was captain of the Experiment, a vessel plying between Chicago and Kalamazoo, and was expected to return in a week or ten days, that she had left Chicago the week previous, and that affiant had

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