delivered the opinion of the Court:
Hall held the legal title to a tract of land, subject to a mortgage to Ayers and Hamilton for about $20,000. Hall, by a written contract, agreed to sell the west half of the whole tract to Smith for about- $18,000, of which $4000 was paid down, and the balance was to be paid in three annual installments. To induce Smith to buy, Ayers and Hamilton agreed, in writing, that the part purchased by Smith should be held for the payment of only one-half of the then unpaid part of the mortgage debt. Smith then agreed, in writing, with Cowen, to sell to him the land in controversy, being lot 17, and being a part of the land embraced in-Smith’s contract of purchase. The price Cowen was to pay for this lot to Smith was $625. He paid $181, and took possession, under the contract, in the spring of 1857, and has been in possession ever since. Smith, being unable to pay Hall for the land bought of Hall, for a nominal consideration reconveyed the west half of the whole tract to Hall, and Hall conveyed the whole tract to Bush. Afterwards, and in the year 1871, Cowen, claiming under his contract from Smith, paid to Bush an amount of money greater than the amount of principal and interest unpaid upon that contract, and Bush made a deed conveying to Cowen this lot 17.
Before this deed to Cowen, and in 1863, the mortgage debt not being fully paid, the owner of the debt, Sherman, (assignee .of Ayers and Hamilton) caused the whole tract to be sold, under the mortgage, for the unpaid part of the debt,—part to one Nichols, and part to one Colfax,—and in pursuance of these sales under the mortgage the whole tract was conveyed, —part to Nichols, and part to Colfax. All these contracts, sales and conveyances were recorded in apt time, except the contract of Smith with Cowen, and as to that, Cowen was in possession of the lot named in his contract. Nichols and Colfax conveyed to Cleaver. Through mesne conveyances, Loomis, the appellant, acquired the title to this lot 17, which passed under the said mortgage sale. After the purchase of Smith, and before the sale under the mortgage, Hall or Bush had made payments upon that unpaid part of the mortgage debt, one-half of which, only, was to be a charge upon the west half of the tract. These payments amounted to more than half .of that unpaid part of the mortgage debt, but no special application of such payments had been made to the relief of the west half of the whole tract. At the first trial of this action Loomis recovered judgment against Cowen. That judgment, on appeal to this court by Cowen, was reversed, (Cowen v. Loomis, 91 Ill. 132,) and the cause remanded for a second trial. On that trial the finding and judgment were for Cowen, and Loomis appealed from that judgment.
When the case was before this court on the appeal by Cowen, it was decided, upon the foregoing facts, that as against Cowen the payments made before the mortgage sale occurred had discharged from the lien of the mortgage all ■ that part of the tract which Hall had sold to Smith, and hence as against Cowen' no title passed by the sale under the mortgage, and this sale under the mortgage being the only source of Loomis’ title, he could not recover on these facts alone. The writer of this opinion did not then, and does not now, concur in the view then adopted by this court. But as between these parties that proposition became res judicata, and can not lawfully be called in question on this appeal. Unless, therefore, upon the second trial plaintiff showed title otherwise, the circuit court could not lawfully give judgment in his favor. The evidence on the second trial does not tend to vary the case in any respect save one. Proofs were offered tending to prove that when Loomis was about to buy the lot from one holding under the mortgage sale, he applied to Cowen to learn what claim, if any, he had to the property in question, and that Cowen orally disclaimed all legal right to the lot, and that on the faith of this disclaimer Loomis, with the knowledge and consent of Cowen, bought and paid for the lot. The evidence on this question was contradictory.
Waiving the question whether a plaintiff in ejectment can recover upon an estoppel of the kind claimed, we, upon ex-animation of the proofs, can not say that the alleged estoppel was so clearly proven that it was error to find otherwise. Ho instructions or propositions of law are preserved in the record showing distinctly upon what view of the law this finding did rest; but although the court at first refused to permit proof tending to establish the facts alluded to as the basis of estoppel, such proof was subsequently admitted and received by the court, and we must assume that the finding of fact was against appellant.
We find no sufficient ground upon which to reverse this judgment, and it is therefore affirmed.
Judgment affirmed.