delivered the opinion of the court.
The only controversy in this case is, as to the installment of rent which appellants claim became due to them from appellee on October 1, 1897, it being admitted that Wolf is entitled to the portion becoming due March 1, 1898. It seems to be conceded that if Wolf’s deed is to relate back to the day of sale he is entitled to the rent in dispute on the Aveli known principle that a conveyance of the fee carries with it rents accruing after that time.
The law is well settled that for the furtherance of justice, and when the rights of third parties are not to be injuriously affected, a deed will have relation back to and take effect from the time the grantee was entitled to receive it. (1 Devlin on Deeds, Sec. 264; Argo v. Oberschlake, 48 Ill. App. 289; Ferguson v. Miles, 3 Gilm. 358-365.) But this principle will never be permitted to prevail when its adoption would work injustice. In this case if Wolf paid all the money to which appellants were entitled for their portion of the premises on April 24, 1897, as claimed by him, it would be only right he should receive the rents accruing after that time, and the doctrine of relation should be applied in his favor for the furtherance of justice. On the other hand if Wolf did not pay the money until he obtained his deed on October 26, 1897, there would be no justice in allowing him to have the use of the money and also the rent of the land, and in such case it would not be right to hold that his deed relates back to the day of sale to the injury of appellants.
The proofs are not satisfactory as to when Wolf paid the money and we think that is a question which should have been submitted to the jury and that it was error to direct a verdict in favor of appellee.
The burden of proving himself entitled to the benefit of the doctrine of relation was upon appellee, who invoked it in his own behalf. As the record stands we can not determine what would be just as to the application of the principle in this case.
The decree of partition and sale does not appear in the evidence. It may be that a reference thereto might have some effect upon the rights of the parties accordingly as it may or may not provide when the purchase money should be paid.
As the proofs now stand we are of the opinion the unexecuted lease was not competent evidence.
The judgment must, be reversed and the cause remanded for a new trial in accordance with the views herein expressed. Reversed and remanded.