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Opinion of the Court.

and proofs, the bill was dismissed for want of equity. An appeal was taken to the state Supreme Court, which was dismissed upon the ground that the case should have gone to the appellate court. 128 Illinois, 199. Whereupon the complainant sued out a writ of error from the appellate court of the first district of Illinois to the circuit court of Cook County, and upon a hearing in the appellate court the decree of the circuit court was reversed, with directions to enter a decree in accordance with the opinion of the appellate court. 33 Illinois App. 607. This opinion was not sent up with the record in this case. From the decree of the appellate court, the insurance company prosecuted an appeal to the Supreme Court of the State, which affirmed the decree to the appellate court. 133 Illinois, 368. To reverse that decision, this writ of error was sued out.

Mr. Frank

Mr. E. Parmalee Prentice for plaintiff in error.
L. Wean and Mr. J. H. Drummond were on his brief.

Mr. George R. Daley for defendant in error. Buell and Mr. William S. Harbert were on his brief.

Mr. Ira W.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

From the briefs of counsel and the reports of the case in the Illinois reports, we are informed that, upon the affirmance by the Supreme Court of the decree of the appellate court, the case was remanded to the circuit court of Cook County, where an accounting was taken, and a decree entered in accordance with the opinion of the appellate court. From that decree the company is said to have appealed to the appellate court of the first district, which affirmed the decree of the circuit court. 51 Illinois App. 67. Whereupon the insurance company again appealed to the Supreme Court of the State, which again affirmed the decision of the appellate court. 149 Illinois, 536. But as the writ of error from this court was not taken to reverse that decree, but to reverse the first decree

Opinion of the Court.

of the Supreme Court, affirming the decree of the appellate court, we are concerned only with the questions arising upon that decree, and more particularly with its finality. It will be observed that it simply affirms the decree of the appellate court, but upon reference to that decree, we find that it reverses the decree of the circuit court of Cook County, "with directions to that court to enter an order and decree in conformity with the opinion filed herein." As this opinion was not sent up with the record, we have no means of knowing judicially what it was, though we are informed by the briefs of counsel that an accounting was ordered and taken in the circuit court.

Obviously the decree, to review which this writ of error was sued out, was not a final decree. The finality of decrees is a subject which has been so much discussed in the decisions of this court that it is useless to do more than to cite the cases of Lodge v. Twell, 135 U. S. 232, and McGourkey v. Toledo & Ohio Central Railway, 146 U. S. 536, wherein most of the prior cases are reviewed.

This case is not one for nice distinctions, since the rule is well nigh universal that, if the case be remanded by the appellate court to the court below for further judicial proceedings, in conformity with the opinion of the appellate court, the decree is not final. Especially is this the case when the opinion, to which the new decree is required to conform, does not appear. Brown v. Baxter, 146 U. S. 619; Houston v. Moore, 3 Wheat. 433; Bostwick v. Brinkerhoff, 106 U. S. 3; Johnson v. Keith, 117 U. S. 199; Rice v. Sanger, 144 U. S. 197; Meagher v. Minnesota Thresher Mfg. Co., 145 U. S. 608; Hume v. Bowie, 148 U. S. 245; Werner v. Charleston, 151 U. S. 360.

The writ of error is, therefore,

Dismissed.

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When one party to an action has in his exclusive possession a knowledge of
facts which would tend, if disclosed, to throw light upon the transactions
which form the subject of controversy, his failure to offer them in evi-
dence may afford presumptions against him.

Where land is used for the purpose of a home, and is jointly occupied by
husband and wife, neither of whom has title by record, a person propos-
ing to purchase is bound to make some inquiry as to their title.
The possession of real estate in the District of Columbia, under apparent
claim of ownership, is notice to purchasers of the interest the person in
possession has in the fee, whether legal or equitable in its nature, and of
all facts which the proposed purchaser might have learned by due inquiry.
This principle applies with peculiar cogency to a case like the present, where
the slightest inquiry would have revealed the facts, and where the pur-
chaser deliberately turned his back upon every source of information;
and a purchase made under such circumstances does not clothe the ven-
dee with the rights of a bona fide purchaser without notice.

THIS was a bill in equity filed by Maria E. Tallmadge against the appellants, to set aside and remove, as a cloud upon her title, a deed made by the appellants Richard H. Miller, Elizabeth Houchens, and Ella A. Goudy, claiming to be heirs at law of one John L. Miller, deceased, dated August 30, 1888, and purporting to convey to the appellant Kirby the property therein described. The bill further prayed for the cancellation of a trust deed executed by the appellant Kirby and his wife to the defendants Willoughby and Williamson, and for an injunction against all the defendants except Kirby, restraining them from negotiating certain notes given by Kirby for the purchase of said lots, etc.

The facts disclosed by the testimony show that, in 1882, Mrs. Tallmadge, the appellee, purchased of one Bates, for a home, lots Nos. 77 and 78, in square 239, in the city of Washington, with the improvements thereon, for the sum of ten thousand dollars, five thousand of which were paid in cash, the residue to be paid in five instalments of one thousand dollars

L-ed 463

78f 435

160 379

L-ed 463

102f 102

160 379

L-ed 463

108f 486

160 379 L-ed 463

1091 206

Statement of the Case.

each. Instead of taking the title to the property in herself, she furnished the money to John L. Miller, a friend of the family, who paid the $5000 cash, with the money thus furnished, and at her request took the title in his own name, and executed notes for the deferred payments, which he secured by a deed of trust upon the property. Subsequently, and in June, 1883, Miller also purchased with the funds of Mrs. Tallmadge the adjoining lot No. 76, taking title in his own name, and executing a deed of trust for the deferred payments, amounting to $1266.

Mrs. Tallmadge took immediate possession of the premises, and had occupied them as her own from that day to the time the bill was filed, paying taxes, improvements, and interest on incumbrances, reducing the principal $2266, and holding open and notorious possession under her claim of title.

Mr. Miller, who claimed no title or right to the premises in himself, on December 27, 1883, by a deed signed by himself and wife, conveyed the legal title to Mrs. Tallmadge, but this deed, through inadvertence or otherwise, was not recorded until October 4, 1888. Mr. Miller died in February, 1888, and by his will, which was dated December 1, 1880, devised his estate to his widow.

On June 16, 1888, defendants Miller, Houchens, and Goudy, collateral heirs of John L. Miller, who had made a contract with the defendants Willoughby and Williamson to give them one quarter of whatever they could get for them out of the estate of Miller, filed a bill in the Supreme Court of the District against the widow and executor of Miller, the holders of the notes given by him, and the trustees in one of the deeds of trust, praying for a partition or sale of the property, the admeasurement of the widow's dower, and for a charge upon the personal estate of Miller for the unpaid purchase money of the property.

To this bill the widow of John L. Miller made answer that her husband never had any interest in the property in question; that the title was taken in his name for Mrs. Tallmadge; and that long before his death he had by deed duly conveyed it to her, and that neither she nor his estate had or had ever

Counsel for Parties.

had any interest in the property. In August, 1888, the pendency of this suit coming to the knowledge of Mrs. Tallmadge, she sent the original deed from Miller to her, then unrecorded, by Mr. Tallmadge to Willoughby and Williamson, solicitors for Miller's heirs, who examined and made minutes from it.

On August 30, 1888, Houchens, Goudy, and Miller, who had filed the bill for partition, executed a deed conveying the property to the appellant Kirby, subject to the dower rights of Mrs. Miller, for a consideration of $12,000, $3000 of which were said to have been paid in cash and $9000 by notes secured by a mortgage or trust deed upon the property, to Willoughby and Williamson as trustees. Kirby thereupon claimed the property as an innocent purchaser without notice of the prior deed. He at once gave notice to Mr. Tallmadge that he would demand rent for the property at the rate of $1000 per

annum.

On receipt of this notice Mrs. Tallmadge filed this bill to cancel and set aside the deed and deed of trust. Answers were filed by the defendants and testimony taken by the plaintiff, tending to show the facts alleged in her bill. Neither of the appellants took proof, nor did they or either of them offer themselves as witnesses, but stood upon their

answers.

Upon final hearing, the court below, in special term, rendered a decree in accordance with the prayer of the bill, setting aside the deed and deed of trust as fraudulent and void, from which decree defendants appealed to the General Term, which affirmed the decree of the court below, and further directed that Miller, on the demand of Kirby, return to him the $3000 which Kirby claimed to have paid, and which Miller admitted to have received.

From this decree defendants appealed to this court.

Mr. John T. Morgan for all the appellants.

Mr. W. Willoughby for himself and Elizabeth M. Houchens, appellants. Mr. L. Cabell Williamson was on his brief as counsel for himself, Ellen A. Goudy, and Richard H. Miller.

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