dissenting:
I can not concur in the conclusion reached in this case. Hansbrough, having title to the land in question, conveyed the same to Rogers, in trust, to secure the payment of his two notes to H. H. Walker, or order, for $6000 each. This placed the naked fee in Rogers, leaving an equity of redemption in Hansbrough, and the equitable interest in the land for security of the notes in H. H. Walker. In equity Rogers had no interest in the land. The whole of the land in equity was in Hansbrough and in H. H. Walker. Thus stood the title of record. The interest, then, in H. H. Walker is the thing in controversy now, between Laimed on the one side, and Miller and Leibenstein on the other. No other parties have any interest in the controversy.
The interest of H. H. Walker was in equity transferred by him to Samuel J. Walker, by H. H. Walker indorsing his name upon the notes and 'delivering the same to Samuel J. Walker. This equitable, assignment to S. J. Walker was not recorded. This same equitable interest originally in H. H. Walker was transferred to the bank, by a delivery of the notes from S. J. Walker to the bank, with the blank assignment of H. H. Walker thereon. Thus the ownership in equity of the whole interest in this land was in Hansbrough and in the bank, Hansbrough still holding merely the equity of redemption. In this condition Hansbrough, by quitclaim deed, under date of December 17, 1870, conveyed the land to S. J. Walker, and this deed was recorded January 23, 1871. On January 12, 1871, Samuel J. Walker conveyed, by deed, with full covenants, the land in question to Lamed, and this deed was recorded January 26, 1871. At this time the equitable interest in this land (given originally to H. H. Walker by the trust deed to Bogers) which is the subject of controversy, was in the bank, held for Seely, who had acquired the Hansbrough notes secured by the trust deed.
The covenants in the deed of Samuel J. Walker to Larned, on record, were in substance a contract by Samuel J. Walker that he would take up and procure the discharge of the notes, or, in other words, that he would purchase the equitable interest in controversy and transfer the same to Larned. All this was of record.
Samuel J. Walker did, June 14, 1872, pay Seely, through the bank, for this equitable interest, now in controversy, and as against all the world except Larned, that interest became the property of Samuel J. Walker. But as between Samuel J. Walker and Larned, the land at once became vested in Larned by operation of the covenants in his deed of record. .It seems to me that1’ this was the effect not only as against Walker, but as against all other persons claiming this interest through Walker by subsequent purchase from Walker, with notice, either actual or constructive. After this, and on July 2, 1872, Samuel J. Walker borrowed of the bank some $12,000, and pledged these Hansbrough notes as collateral security for the payment thereof, at ninety days, and gave to the bank as evidence of that debt, and pertaining thereto, a paper in the following words, that is:
“No. 2233. Chicago, July 2, 1872.
“Ninety days (no grace) after date, for value received, I promise to pay at the office of the International Bank, to the order of the International Bank, the sum of $12,000, with interest at ten per cent per annum after maturity; and in ease this note shall not be paid within ten days after the maturity thereof, interest shall thenceforth be charged at the rate of twenty per cent per annum. Such rate was agreed upon as the measure of damages for the non-payment hereof at maturity.
“Having deposited as collateral to secure the payment hereof, two notes, William Hansbrough, $6000 each, and secured by trust deed to John G-. ¡Rogers, the east half of the north-west quarter, section 4, town 38 north, range 13 east, which notes I hereby give the legal holder of this note authority to sell, or any part thereof, on the maturity of this note, or at any time thereafter, or before, in the event .of said securities depreciating in value in the opinion of said holder, at public or private sale, at his discretion, without advertising the same or giving me any notice, (notice is hereby expressly waived,) and to apply so much of the proceeds thereof to the payment of this note as may be necessary to pay" the same, with all interest due thereon, and also the payment of all expenses attending the sale; also five per cent as a brokerage or commission for selling the collaterals; and in case the proceeds of the sale of the said notes shall not cover the principal, interest and expenses, I promise to pay the deficiency forthwith after such sale.
(Signed) Samuel J. Walker. ”
With the above paper was given to the bank at that time, by S. J. Walker, the Hansbrough notes mentioned in the trust deed to ¡Rogers. These notes, with the memoranda upon them, are set out in the record as exhibits 28 and 29, and are as follows. Exhibit 28 reads as follows:
“$6000. Chicago, October 2é, 1870.
“Two years after date I promise to pay to the order of Henry H. Walker $6000, at the Second National Bank, Chicago, Hlinois, value received, with interest from date at eight per cent per annum.
(Signed) William Hansbrough. ”
Secured by trust deed of this date, duly stamped. Indorsed on the back of said note, “Henry H. Walker.” Written across the face of said note is the following memorandum: “East half, north-west quarter, section 4, town 38 north, range 13 east third principal meridian. ”
Exhibit 29 reads as follows:
“$6000. . Chicago, October 24, 1870.
“Two years after date I promise to pay to the order of Henry H.JWalker $6000, at the Second National Bank, Chicago, Illinois, for value received, with interest from date at eight per cent per annum.
(Signed) William Hansbrough. ”
Secured by trust deed of this date, duly stamped. Indorsed on the back of said note, “Henry H. Walker.” On the face of this note was written (as on exhibit 28) the words: “East half, north-west quarter, section 4, town 38 north, range 13 east third principal meridian. ”
This note of Samuel J. Walker, of July 2, 1872, (being indorsed in blank, thus: “Without recourse. International Bank, Francis A. Hoffman, Cash’r, ”) was sold and delivered to Miller and Eeibónstein, with the collaterals above mentioned. Under this purchase it is that they claim an equitable interest in this tract of land to the extent of paying the amount due on the $12,000 note given to the bank July 2, 1872. Thus it will be seen the only title they claim to an interest in this land is under and through Samuel J. Walker, and this by virtue of an assignment by him of such interest, dated July 2, 1872. If they have any interest, in this land it is by purchase from the bank of such interest in the same as the bank derived from Samuel J. Walker by purchase from him on July 2, 1882. Before that time Samuel J. Walker had sold and conveyed that very interest (as well as all other interests, to make a full title,) to Earned, by his deed of warranty, and this was on record, and in the direct line of the title bought by them. They had record notice of Larned’s rights, and could not undermine them by a subsequent purchase.
Lay aside our recording laws, and Larned’s equity is first in time, and therefore superior to that of Miller and Leibenstein. If Larned had neglected to record his deed until after Leibenstein had placed the assignment from Samuel J. Walker on record, by recording the same in the office of the recorder, or by filing a bill in a court of record, setting up their equity, then their equity under the recording laws would be superior. It is a matter of no significance that Samuel J. Walker’s name does not appear in the trust deed to Bogers, or on the Hansbrough notes, so long as it appears affirmatively on the face of the assignment of these notes (as collaterals), not written on the notes, that Samuel J. Walker was in possession of the notes, with the blank indorsement of H. H. Walker upon them, and claiming to be the owner, and did assign his supposed interest in the notes, and in this land, by another paper.
I concede that if Miller and Leibenstein had bought these notes of the bank without notice that they were derived from Samuel J. Walker, they would not have been put upon inquiry as to whether he had parted with his interest in this land. He would not then have stood in the line through which they deraign title. I am persuaded that some of my brethren who concur in this decision have not given due consideration to this feature of the case. Miller and Leibenstein have no standing as claimants of an equitable interest in this property, except through and by the purchase from S. J. Walker on July 2, 1870. Before that time Samuel J. Walker had conveyed, for a full price, this very interest to Larned, and his deed was on record.