121 Ky. 601 | Ky. Ct. App. | 1905
Opinion by
Affirming.
In 1882 Jackson Deskins was the owner of a tract of land in Pike county, Ky., containing 820 acres, upon which he resided. On the 5th day of August, of that year, he executed and delivered to Harper Phillips a mortgage on the land to secure the sum of $500. Deskins having failed to pay in accordance with the tenor of his obligation, on the 27th day of March, 1886, Phillips brought a suit in equity in the Pike Circuit Court to enforce his mortgage lien. In 1890 a judgment was rendered enforcing the mortgage, lien, and a judicial sale of the property was had, at which it was purchased by James Hatcher for the sum of $775, being the original debt, with interest and cost of suit added: Before sale the land was appraised at $3,000. Although the sale to James Hatcher was confirmed by order of court, no deed was delivered to him until 1903. While the foreclosure suit of Phillips v. Deskins was pending, Jackson Deskins,
After this action was instituted (to wit, on May, 1894), Jackson Deskins and James Hatcher, by a
The question presented for adjudication is whether Tom Deskins, remote vendee of Hatcher and Hacks on
But while these well settled principles are admitted,, it is said that William Deskins and his vendee, Tom are bona fide purchasers for value from Hatcher without notice of the. secret trust (the existence of which is admitted) between him and Jackson Deskins. Admitting, for the present, the soundness of this statement of the legal principle, we will examine
When we take these admitted facts into consideration, with their legal deductions, and remember that William and Tom Deskins are the sons of Jackson 'Deskins, and that it is admitted they lived néar him, the conclusion is irresistible that they knew all about the agreement between Hatcher and their father, and took subject to the rights of the Virginia Mining & Improvement Company. So that, even if Hatcher had held the legal title, instead of only an apparent equity, the conclusion of the chancellor would have been incontrovertable. But James Hatcher, at best, held only an equitable title to the property by his purchase at the judicial sale, not having received a deed therefor; and the doctrine of bona fide purchase without notice applies only in favor of the purchaser of a legal title. If does not apply in favor of a bare equity. In 2 Pomeroy’s Equity, sec. 785, it is said: “From these decisions it necessarily follows that while a defendant, who really acquired only an equitable estafé, which, however, purported to be a legal
To hold otherwise is to say that a man may acquire title as a bona fide purchaser without notice from the holder of a bare equity, when the fact that the vendor has only a bare equity is notice to him that secret, trusts may be outstanding. No authority can be found for applying the doctrine of bona fide purchaser without notice to such a state of ease. In this case, in so-far as Tom or William Deskins claims the superior rights which Hatcher apparently had, he can claim these rights only as the vendee of Hatcher. The case would be the same if Jackson Deskins had executed one deed, and Hatcher had conveyed by a separate instrument. In so far as William Deskins holds, the land as the grantee of Jackson Deskins, he takes it subject to the rights of the coal company, who holds under a prior recorded conveyance from him; and in so far as he takes the land as the grantee of James Hatcher, he takes only such rights as Hatcher had, and any defense that might have beén made against Hatcher may be made against him. As no part of the consideration which William Deskins; paid went to Hatcher, the former took nothing from the latter which he can enforce against the coal company. The land has been redeemed from Hatcher.
In addition to this, the answer of Tom Deskins, upon which his claim is based, does not contain the necessary allegations to sustain a judgment. In 2 Pomeroy’s Equity, sec. 785, it is said: “The allegations of the plea, or of the answer, so far as it relates-to this defense, must include all those particulars, which, ás has been shown, are necessary to constitute a bona fide purchase. It should -state the consideration, which must appear from the averment to be ‘valuable’ within the meaning of the rules upon that subject, and should show that it has actually been paid, and not merely secured. It should also deny notice in the fullest and clearest manner, and this denial is necessary, whether notice is charged in the complaint or not. The denial must correspond with the settled rules upon the subject of notice, so as to bring the case within the operation of those rules. Concerning the foregoing averments there has been, and can be, no doubt.” (23 Am. & Eng. Ency. of Law, pp. 522, 523.) A stream rises no higher than its source. Ordinarily a vendee gets no more than his
For the foregoing reasons, the judgment is affirmed.