delivered the opinion of the Court:
First—The original deed of trust provides, in the second clause declaring the trusts, that “the said Ira Scott, or his successors in trust, shall bargain, sell or convey a portion of said, premises for the purpose of procuring funds to build upon and improve the remainder thereof during the joint lives of said. Frank C. and Maria Louise Taylor, upon their joint written-request, and sueh request shall be signified by their joining' with such trustee in the execution of the deed or deeds of conveyance. * * * And said Ira Scott, or his successors in trust,, shall at once, with the proceeds of such sale, erect on that portion of said premises remaining unsold, such buildings and improvements as said Frank C. Taylor and Maria Louise Taylor, jointly, shall direct.” The deed of Frank G. Taylor and Maria-Louise Taylor, executed at the same time that the deed was-executed by the trustee, to appellee, was a sufficient compliance with this provision, and hence we are of opinion, that, as respects appellee, the power of sale and conveyance was properly exercised. We do not think that the case is one wherein the purchaser is bound to see to the application of the purchase money, because that is always a question of intention, to be determined from a construction of the instrument; and where it appears that the donor of the power confided the application of the purchase money to the judgment and discretion of a particular person or persons designated, it is conclusive that it was not intended to burden the purchaser with it. 2 Perry on Trusts (3d ed.) sec. 794. Here, it has been seen, the sale is to be made upon the joint request of Frank C. Taylor and Maria Louise Taylor, and the trustee is to act, in erecting buildings and making improvements, as those persons “shall jointly direct. There is, therefore, no opportunity for supervision and control of the purchase money by the purchaser. In no view, however, are we of opinion that that question can be material here. There being power to sell and convey, the legal title unquestionably# passed; and whether it is still charged with a trust in favor of those named in the original trust deed, is, obviously, a question that concerns those, only, who shall come before the court asking to have that trust executed, and showing their right to call upon the court for that purpose.
Second—Appellee was not made a party to the petition for mechanics lien. No one assumed to answer for her. She denies that she ever authorized George Taylor, her husband, to appear for her or employ counsel to represent her in that proceeding,—or, indeed, that she ever knew of the pendency of that proceeding until since the deed sought to be set aside was executed; and there is no evidence in the record even tending to contradict her in this respect. There is no proof that George Taylor was the universal agent of appellee, with frill power to act, and bind her estate in all instances in which it was the subject of litigation, and proof that he acted with her approval in a few instances, manifestly is no evidence that she would approve his acts in all instances. It can not be claimed that appellee ratified the acts of George Taylor in personally defending against the petition for mechanic’s lien, for there can be no ratification without knowledge of the act ratified, and that is not only not proved here, but, as has been seen, it is expressly disproved. Proctor v. Tows et al. 115 Ill. 138.
Third—Appellee was not a purchaser -pendente lite, the petition for mechanic’s lien, and so she is not bound by the appearance of her grantors in that suit. She entered into possession of the property on the 11th of April, 1873, and she says she did so as owner. The deeds to her were executed on the 10th of November, 1873, and recorded on the 15th of that month. In consequence of the deaths of Frank C. Taylor and George Taylor, the proof is not very full as to when the consideration ■ for the deeds was paid, nor whether money actually belong- . ing to her was used in its payment. The preponderance of the evidence on the subject is, the payment was made at or before the execution of the deed; but whether George Taylor purchased the property with her money, or with his own money as a gift to her, can, in our opinion, concern no one in this proceeding. If George Taylor gave her the property, he had no more right to control it after the execution of the gift than he had to control any other property belonging to her. If he had been insolvent at the time, and his creditors were now properly before us complaining of the gift, a very different question than that which is before us would be presented. There was no service of summons, and no answer of Frank C. andMaria L. Taylor, or on behalf of their children, filed until the 21st of February, 1874, and the trustee’s answer was not filed until the 13th of July, 1874, so lis pendens did not begin, as to any of the parties, until more than three months after appellee’s title was vested in her. Grant v. Bennett, 96 Ill. 515; Bennitt v. Wilmington Star Mining Co. 119 id. 9.
Fourth—The proceeding on petition for mechanic’s lien is not one in rem, so as to bind others than parties and privies in the particular proceeding. (Dunphy v. Riddle, 86 Ill. 22; Kelly v. Chapman, 13 id. 530; Raymond v. Ewing, 26 id. 329.) It necessarily follows that the affirmance by this court of the decree in Taylor et al. v. Gilsdorff et al. 74 Ill. 354, did not affect the rights of appellee.
Fifth—We do not think the case is one wherein appellee should have filed a bill to redeem. In our opinion, she is under no obligation to redeem, because there was no mechanic’s lien against her property. Whatever rights appellant may have under the decree, it can have no greater rights than G-ilsdorff and others had. It is subrogated to their rights, under the decree, to the extent that it is entitled to enforce contribution against property owned by others, and burdened, as was its property, with the incumbrance of this mechanic’s lien. Sheldon on Subrogation, sees. 6, 154.
Taylor et al. v. Gilsdorff, supra, was decided on the restored record of the deed, which was not correct. In the first clause expressing the trusts, in the original deed, occurs this language : “It being, however, expressly provided and understood that the improvements now standing on said premises may be added to, altered or removed, and new buildings erected thereon: Provided, always, there shall be no lien, incumbrance or charge created thereby on said premises.” And again, in the second clause expressing the trusts in the original deed, immediately following the language before quoted in reference to the power to sell and rebuild on and improve the remaining property, occurs the following: “Provided, always, that no charge, lien or incumbrance on said premises, or any portion thereof, shall be thereby created by said Ira Scott or his successors in trust.” Neither of these clauses was in the record reproducing the deed of trust. Of course, Taylor et al. v. Gilsdorff et al. is res judicata as to the parties then before the court, but, as we have before herein held, it concludes no one else.
The lien, as is shown by Clark v. Moore, 64 Ill. 273, cited by counsel for appellant, attaches when the contract is made; and therefore, in order to determine the rights of Gilsdorff and the Baumans to enforce their lien, we must ascertain what were their rights, under their contracts, when they were made.
The record shows that the contract with Gilsdorff was made on the 27th day of August, 1872, and that with the Baumans was made in March, 1872. The petition to restore the deed of trust was not filed until the 13th of January, 1873, and the decree thereon was not rendered until the 19th of March, 1873, and it is therefore impossible that either Gilsdorff or the Baumans can have been influenced in making their contracts by the restored record of the deed. The deed of trust was made, and duly recorded in June, 1871, and all persons thereafter dealing with the property, or upon the faith of rights in connection with the property, were bound to know its precise, terms. If that record had never been destroyed, no one would claim that a mechanic’s lien could have been established against the property, and this simply because the deed expressly provides that no contract creating a lien shall be made. The restriction is not unreasonable, and it is such as the law will enforce. But the destruction of the record by fire had no-effect upon the constructive notice existing by virtue of the recording. Thereafter, precisely as theretofore, all persons-were bound to know that no lien could be created by virtue of a contract, against this property. (Alvis et al. v. Morrison et al. 63 Ill. 181; Shannon et al. v. Hall et al. 72 id. 354.) Had no attempt then been made to restore the deed, it is plain Gilsdorff and the Baumans could not have enforced their lien,—that is, they could not have enforced it had the actual provisions of the deed, as it was made, been before the court. But we have seen their contracts were uninfluenced by the-record restoring the deed—they can assert no estoppel on that ground; and there is nothing in the record tending to establish that they were misled in that respect, especially hy appellee. It is true, when appellee purchased, and when the deeds to her were executed, the decree restoring the trust deed was upon record. But she was no party to it; she took no benefit depending upon its peculiar phraseology; it was induced by no request or act of hers, and it is therefore impossible that she can be estopped by it from introducing in evidence and relying upon the provisions of the original deed itself, and so, necessarily, as against appellee, Gilsdorff and the Baumans had no right to a lien upon sub-lot 3, and, this being so, appellee owes no duty to redeem from any supposed lien in behalf of appellant.
Sixth—The conveyance to appellant assumes to convey the entire title to sub-lot 3. It is therefore such a cloud upon appellant’s title as justified the filing of a bill to remove it. (Hodgen v. Guttery, 58 Ill. 431.) And, in the view we have expressed, the case is markedly different from Taylor v. Adams, 115 Ill. 570, and Cutter v. Jones, 52 id. 85, where the only right of the complainants was that of redeeming. Appellee’s right is that of the property, and not one of redemption.
Seventh—It may be conceded that so much of the decre'e as directs an account is erroneous, but since no account has been taken, and no decree rendered thereon against appellant, it has done it no harm. It will not justify a reversal of the entire decree and a remanding of the cause.
That part of the decree is reversed, but in all other respects the decree is affirmed, and the entire costs will be taxed against the appellant.
Decree reversed in part and in part affirmed.