44 W. Va. 414 | W. Va. | 1898
Lead Opinion
Jacob Cline, Sr., was the owner of a tract of land situated in Logan County, Va., now in Mingo County, W. Va., which was supposed to contain five thousand acres, and was conveyed to him by one John Lawson. A portion of this tract was situated on Tug- river, just above the mouth of Grapevine creek, and was known as the “Old Home Place.’.’ The remainder of the boundary is situated on Grapevine creek and Tug river. In March, 1858, said Jacob Cline, Sr., made and published his last will and testament, which was probated and recorded in Logan County, Va., in 1858, by the seventh clause of which he gave to his sons, Perry and Jacob Cline, a tract of land in Logan county, on Tug river, bounded as follows, to wit: “Begin-.
With the records of Logan county in this condition, and the land books showing that the land in controversy had been chai'ged, in the name of Jacob Cline’s heirs, with taxes as five thousand acres, until 1884, when two thous- and nine hundred acres, part thereof, composed of the home place and P. A. Cline’s half of the Grapevine lands, were charged to Anderson Hatfield under his deed from P. A. Cline of March, 1877, placed on record in 1882, the plaintiff, J. B. Ellison, went to Anderson Hatfield, Sr., in order that there might be no mistake, and asked him if he had ever bought Jacob Cline’s interest in the Grapevine lands, and was informed that he had not. Having thus been satisfied that the undivided moiety of the Grapevine lands yet belonged to the heirs at law of Jacob Cline, Jr., (who died in 1879 intestate, leaving two sons, P. A. Cline, Jr., and Wayne Cline), the appellee, J. B. Ellison, met the said P. A. Cline, Jr., and Wayne Cline, at their home in Kentucky, on December 6,1893, and purchased from them the undivided moiety of said Grapevine lands devised by Jacob, Sr., to their father, and paid them one hundred dollars each for their respective interests, taking- from them deeds and covenants of special warranty, which were joined in by their mother, and duly recorded. With the title of these heirs on record, said Ellison, on February 27, 1894, instituted this suit in the circuit court of Logan county against said trustees and others, claiming to be the owner of the Jacob Cline moiety of the Grapevine lands, and praying that the lands embraced in the seventh clause of the will of Jacob, Sr., might be partitioned, and one-half thereof assigned to him, and the other half to the defendants entitled thereto.
On the 19th of June, 1894, said trustees filed their joint
The appellants in their petition for appeal claim that the circuit court erred in refusing to remove this cause to the circuit court of the United States for West Virginia on
The second assignment of error relied on by the appellants is that the court erred in its decree of August 3,1895, in adj udicating' that the plaintiff is the owner in fee of an undivided moiety of the land mentioned in the bill, and in decreeing a partition accordingly, and in refusing to compel the plaintiff to convey to appellants an undivided moiety of that part of said land claimed by them, in specific performance of the title bond set up in their answer. The controversy in this case is in regard to the ownership of the tract of land devised by the seventh clause of the will of Jacob Cline, Sr., to his sons, Perry and Jacob, known as the “Grapevine Tract.” This land is claimed by the appellants by virtue of a deed executed by P. A. Cline and wife to Anderson Hatfield, dated March 23, 1877, which deed described the property conveyed as “all the land that was willed to P. A. Cline by Jacob Cline, Sr., his father, said hind being and lying on Tug river, in Logan County, W. Va., containing 5,000 acres more or less;” and by a subsequent deed dated January 30, 1888, from Anderson Hatfield and wife and certain ones of his children to whom he had conveyed portions of said tract, which deed purports to convey several tracts of land, aggregating one thousand five hundred acres, and closes with the following general description : “All of the real estate herein conveyed being a part of a 5,000-acre survey conveyed from P. A. Cline to said Anderson Hatfield, Sr., by deed bearing date on the 23'd day of March, 1877.” Afterwards said Sergeant conveyed to the appellants, trustees. These deeds are their title to these lands from P. A. Cline, and they embrace no
It is claimed by counsel for the appellants that the ap-pellee, J. B. Ellison, was not an innocent purchaser of the moiety of the Grapevine lands willed to Jacob Cline, Jr., by his father, and that, if he did not have notice of the existence of the title bond exhibited with the amended answer of said trustees, he was put upon inquiry by the possession of Anderson Hatfield, and in consequence thereof he was chargeable with notice of the equitable title of Anderson Hatfield derived by virtue of said title bond.
Now, suppose that the possession of said Anderson Hatfield, instead of being, as the evidence shows it was, by the erection of a cabin here and there to shelter his hands while logging, by no means exclusive or continuous, had been such as to put the plaintiff upon inquiry ; what more inquiry could he have made than he did before purchasing said moiety from P. A. Cline, Jr., and Wayne Cline? He says in his deposition (and it is uncontradicted), in answer to question 12 : “Did you ever have a conversation with Anderson Hatfield, Sr., about the Jacob Cline one-half of of the Grapevine lands; and, if so, what was it?” “I did. I asked him if he had ever bought Jacob Cline’s interest in the Grapevine lands, and he told me that he did not. This was before I bought the land. ” What more could he have done? He had gone to the man who, of all others, ought to have known whether he had bought the land or not, and he had been informed that he had not purchased it. See 16 Am. & Eng'. Enc. Law, 805, where the law upon this point is stated thus: “When a. purchaser has been put upon inquiry by the possession of a tenant, and upon making inquiry receives information as to the tenant’s claim, he may rely on such information, in the absence of anything to give notice of its falsity.” And, while I am discussing this queátion of notice, it may not be improper just here to call attention to the fact that the last will and testament of Jacob Cline was admitted to record in Logan county in April, 1858, and by reference to that the purchasers from P. A. Cline of the lands willed to him by his father could easily have seen that he only derived thereby a moiety of the Grapevine lands, the other half going to
Now, if there had been such a pai'ol contract between Anderson Hatfield, Sr., and Jacob and Perry A. Cline, as is claimed in such amended answer, we can but regard it as exceedingly remarkable that Anderson Hatfield should, on the 23d day of March, 1877, accept a deed from P. A. Cline and wife for the land that was willed to P. A. Cline by his father, which description would only include a moiety of the Grapevine lands, and that the entire consideration in the shape of a tract of land on Tug river, Pike County, Ky., should be paid to P. A. Cline ; and it is equally strange that the appellants, with the records before them, if they thought they were acquiring Jacob Cline, Jr.’s, interest, should have accepted a deed only for
Upon this question, Browne on the Statute of Frauds (section 476) thus states the law: “Fourthly, the possession must appear to have been delivered or assumed in pursuance of the contract alleged. And this is but a particular application of the general rule, heretofore noticed, that the acts relied on as part- performance must be such as would not ordinarily have been done unless a contract had been entered into between the parties.”’ Also in section 477, where it is said: “Thus it is abundantly settled that, if one who is already in possession of land as tenant verbally contract with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of part performance, within the meaning of the rule, so as to justify a lease according- to the contract. In such a case the continued holding is naturally and properly referable to the old tenancy, and
Now, when we turn to the testimony upon.this point, it will be seen that the witness G. W. Taylor, in response to the eleventh question on cross-examination, when asked, ' ‘Under what claim of title did Anderson Platfield move on Grapevine creek and take possession?”answered: “Under the claim of his father, Ephraim Platfield, father of Anderson Hatfield, by a survey that he claimed that his father had made there on the creek.” And when, in the next question, witness was asked, “Was there any dispute or trouble between Hatfield and Jacob and Perry Cline?” he answered, “Yes, sir, there was; each party claimed it.” In answer to another question, said witness stated that Anderson Hatfield was in possession of said land in the year 1866. Joseph Simpkins, witness for appellants, also, in answer to question 4 on cross-examination, stated, when asked under what claim of title Anderson Platfield occupied Grapevine creek, that “in the year 1860 he went there under a title of his father, and then in the year 1867 he moved back there, and then in the year 1868, as near as I remember, he purchased the lands from P. A. and Jake Cline.”
Thus, the testimony in the cause shows that said Hatfield did not go into possession of the Grapevine lands in pursuance of any parol contract with Jacob or Perry Cline. Upon this point Fry on Specific Performance (section 387) states the law thus: “To make the acts of part performance effective to take the agreement out of the statute of frauds, they must be such as cannot be referred to any other title than such an agreement as that alleged, nor have been done with any other view or design than to perform such an agreement.” Browne on the Statute of Frauds (section 454) says: “Another general rule in regard to the acts relied upon is that they must appear to have been done in pursuance of the contract alleged. To use the language of Uord Hardwicke, ‘It must be such an act done as appears to the court would not have been done except on account of the agreement,’” — citing Lacon v.
It is, however, claimed that the possession of Anderson Hatfield, Sr., was sufficient to put the appellee upon inquiry. Conceding, however, that such was the case, as we have said before, he did make inquiry; and on going to Hatfield, who, of all men, would be supposed to know whether he had purchased Cline’s interest in the Grapevine lands, was informed by him that he had not, and from the deed he made to Sergeant he does not appear to have sold said interest. The defendants in their amended answer allege that Perry A. Cline on March 3, 1877, conveyed his interest in said lands to Anderson Hatfield, but that Jacob Cline departed this life before completing said contract by conveying his interest in said lands to Hatfield; that subsequently the land sold as aforesaid by Jacob and Perry Cline to Hatfield, by a succession of sales and conveyances from said Hatfield and his vendees, became and was vested in appellants as trustees. This statement is not supported by the record, for the reason that Perry Cline by his deed to Anderson Hatfield dated March 23, 1877, only conveyed the land that was willed to him by his father, and no other land than that was conveyed to Sergeant by Hatfield, and by Sergeant to the appellants. Now, from the paper purporting to be a title bond from Perry A. Cline and Jacob Cline to Anderson Hatfield, which was found by an agent of the appellants among the private papers of Anderson Hatfield tied up in an old shawl, more than twenty years after its date, it appears that at the time J. B. Ellison purchased the moiety of Jacob Cline in the Grapevine lands from his heirs at law the parol contract alleged and relied on in said amended answer had, for more than twenty years, been merged in the title bond witnessed by G. W. Taylor and Robert Mounts, which was susceptible of recordation, but-which, remaining unrecorded, was void as to the purchase made by said Ellison, under sections 4 and 5 of chapter 74 of the Code.
Returning again to the question as to the effect of possession as notice to a purchaser, this Court has stated the
Anderson Hatfield by placing his deed from P. A. Cline and wife on record on August 30, 1882, gave notice to the world as to what portion of the Grapevine lands he claimed; and J. D. Sei-geant, by placing- on record the deed from Anderson Hatfield and his sons, dated January 30, 1888, g-ave notice that he only claimed thereby part of the land conveyed by P. A. Cline and wife to Anderson Hatfield by said deed of March 23, 1877; and neither of these deeds purported to convey the interest of Jacob Cline, Jr., in the Grapevine lands. Now, what entitles the appellants to specific performance of the contract contained in said title bond, be it ever so genuine? The appellants surely could be entitled to no other or further relief in that respect than their grantor, Hatfield, was entitled to, provided he had conveyed.or assigned to them his equitjr in the Jacob Cline moiety of the Grapevine land, which the record nowhere shows that he ever did; but, so far as the record discloses, all claim of said Jacob Cline moiety under said title bond was ignored and abandoned by said Hatfield, and he did not pretend to convey it to Sergeant. See, also, Kirby v. Tallmadge, 160 U. S. 387, (16 Sup. Ct. 352,) in which the court, after citing Atwood v. Bearss, 47 Mich. 72, (10 N. W. 112,) says: “Indeed, there can be no doubt whatever of the proposition-that where the land is o'ccupied by two persons, as, for instance, by husband and wife, and there
It is claimed by counsel for the appellants that the ap-pellee, J. B. Ellison, holding under a quitclaim deed from P. A. Cline, Jr., and Wayne Cline, cannot be regarded as a bona fide purchased for value. This question, however, is discussed in the opinion of Mr. Justice Field in the case of Moelle v. Sherwood, 148 U. S. 29, (13 Sup. Ct. 426), and in the opinion of Mr. Justice Brewer reported in 148 U. S. 45, (13 Sup. Ct. 458), in the case of U. S. v. California Land Co. In both of thése cases it is distinctly held that a purchaser holding under such a deed can be a bona fide purchaser for value.
In order that the appellants should be entitled to a specific performance of the contract claimed to have been made between Anderson Hatfield, Jr., and Jacob Cline, they must first show that such a contract existed, and that they are entitled to the benefit of the same by assignment or otherwise; but neither of these conditions appears from the record to have been complied with. It is said by Fry, in his work on Specific Perfomnance (page 198, § 286), that “a contract to be specifically enforced by the court must be mutual; that is to say, such that it might at the time it was entered into have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being
Now, this record contains no proof of the payment of the purchase money or any part of it by Anderson Hatfield to Jacob Cline for this tract of land, and we may search the record in vain for any right on the part of the said Jacob Cline, his heirs or assigns, to call upon the appellants for any portion of said purchase money. They certainly derived no such right from Hatfield, for the reason that it was his duty to have paid said purchase money, and he does not appear to have conveyed the Jacob Cline moiety of said lands to appellants, or- to have transferred any liability of his connected therewith to the appellants.
Again, payment of the purchase money from Hatfield to Jacob Cline will not be presumed from lapse of time. See Showalter v. Hambrick, 25 S. E. 102, from the court of appeals of Virginia, where it is held that special performance of a contract to convey land brought by one that has been for thirty years in possession of the land under the contract will not be enforced where the evidence shows the consideration for the conveyance has never been paid. So, also, in the case of Logan v. McChord, 2 A. K, Marsh. 224, it is held that where the consideration is denied plaintiff must show payment before he can have specific performance. “Presumption of payment will not avail a plaintiff who seeks affirmative relief by specific performance of a contract for sale of land.” Brady v. Begun, 36 Barb. 533. See, also, Bennett v. Welsh, 25 Ind. 140; 18
Concurrence in Part
Note by
I have to dissent from the opinion of Judge Brannon handed down in this case, and concur with the conclusion of Judge English, and add the following note :
The title bond from Perry A. Cline and Jacob Cline to Anderson .Hatfield, dated August 24, 1869, which is relied upon by the appellants, since the filing of the amended answer, for their title to the Jacob Cline half interest, was witnessed by two witnesses, and was a recordable instrument under our statutes, and the evidence shows no reason for not recording the same. The record shows, by the affidavits of the trustees and their attorneys, that neither'they nor their attorneys knew of the existence of this title bond until long after the bringing of this suit, and the conveyances made by Hatfield all refer back to the recorded deed from Perry A. Cline to Hatfield, conveying only his half interest. But the answer alleges the genuineness óf the title bond, and the special replication of the plaintiff denying the bond is not sworn to nor accompanied
Let us consider the question whether or not Ellison had notice of the defendants’right to the whole of the Grapevine tract by their possession, assuming they were in possession. It is well settled by the best authorities that actual possession is notice to purchasers of the right of the person in possession; but there is also a well-settled exception to this rule, and that is that where a party is in possession of property, and there is a recorded title under which he would be entitled to such possession, then possession is not notice to subsequent purchasers of any unrecorded title, and the possession will not operate to put such purchaser upon inquiry respecting- any other title than that which the record discloses. The defendants
As to the consideration paid by Ellison to the two sons of Jacob Cline for their undivided half interest in the Grapevine tract. The amount paid by Ellison to the two
Jacob Cline, Si'., devised one tract of land, known as the “Old Home Place,” lying- in formerly Log-an county, now in Ming-o county, on Tug- Fork of Big- Sandy river, to his son Perry A. Cline, and another tract, lying- on said Tug-river and Grapevine creek, containing four thousand to five thousand acres, he devised to his two sons, Perry A. Cline and Jacob Cline; Perry A. Cline being thus the sole owner of the “Old Home Place,” and he and his brother, Jacob Cline, joint owners of the “Grapevine Tract,” as I shall call it. Perry A. and Jacob Cline sold to Anderson Hatfield the Grapevine tract, and executed a title bond to evidence the sale, dated August 24, 1869. It was never recorded. Afterwards, by deed of March 23,1877, Perry A. Cline conveyed to Hatfield all the land devised to him by his father, thus embracing the “Old Home Place” and the undivided half of the Grapevine tract. This deed was recorded. Thus Hatfield owned leg-al title to half the Grapevine tract, but only equitable title to the other half, as Jacob Cline never conveyed to Hatfield the other half under said title bond. Hatfield then conveyed certain parts of the Grapevine tract to different persons, and by certain conveyances they came to be owned by J. D. Sergeant, and Hatfield conveyed the balance to Sergeant, so that Sergeant was owner of the entire Grapevine tract save a few small pieces. In 1888, Sergeant put tenants on the land, and in 1891 conveyed the land to Richard Torpin, Jr., John Lambert, Jr., and George Wharton Pepper, trustees, who have since continued in actual possession. This being the situation on the 6th of December, 1893, J. B. Ellison took a conveyance from two sons of the younger Jacob Cline, deceased, for the undivided half of said Grapevine tract, on the theory that their father had never sold it, and had died owning it, and that it descended to his sons. Ellison paid each of them one hundred dollars for his interest. Then Ellison, thus claiming half of said land, brought this suit ag-ainst the trustees to divide the land and have half set apart to him. The trustees by answer utterly denied Ellison’s claim, and set up said title bond from Perry A. and Jacob Cline to Hatfield, thus claiming
The title bond from the two Clines to Hatfield, giving him all the Grapevine land, must be taken as established. I think the proof establishes it; but, besides, the answer alleges its execution, and the special reply does not deny it under oath.
A vital question is whether Ellison can be charged with notice of that title bond when he took the conveyance for half the land from the two sons of Jacob Cline. At that time the defendants, the trustees, were in possession, claiming the whole land, by tenants, and it is claimed that such possession affects Ellison with notice of that title bond. Before the use of writings to transfer freehold estates in the very land itself, it was effected by livery of sei-sin; that is, delivery of actual physical possession of the land itself. Possession was thus the signal sign that he in possession owned that land. So it remains to-day in the rule that possession is prima facie evidence of title in the possessor. One who buys of another that man’s land must take the precaution to inquire of him what are his rights; for, if he does not, the law charges him with knowledge of that man’s right as fully as if he actually had applied to him and been informed of such right. In these, our days, actual possession of land is notice to purchasers of the right of the person in possession. Opinions in French v. Loyal Co., 5 Leigh, 641; Western Co. v. Peytona Coal Co., 8 W. Va., 409; Campbell v. Fetterman, 20 W. Va., 399; Chapman v. Chapman, 91 Va., 397, (21 S. E. 813); La Neve v. La Neve, 2 White & T. Lead. Cas. Eq. 180; Kirby v. Tallmadge, 160 U. S. 379, (16 Sup. Ct. 349); 2 Pom. Eq. Jur. § 615; 2 Minor, Inst. 980, It takes the place of regis
But it is urged that this rule cannot be applied in this case, because there was on record the deed from Perry A. Cline to Anderson Hatfield passing- half the land, and subsequent transfers bringing that half to the trustees, and that in such cases possession gives no notice of any ownership in the other half held under the unrecorded title bond ; that Cline’s deed to Hatfield told the world that it conveyed what land Jacob Cline had willed to his son Perry A. Cline; and that will thus referred to showed a joint devise to the two sons, Perry A. Cline and Jacob Cline, and so any one might reasonably suppose that the defendants were in possession only under rig-ht to an undivided 'moiety; and being tenants in common with Jacob Cline or his heirs, the possession of these timstees was their possession, the possession of one joint owner being- the possession of all. It can be said with force, as a general thing, that when one about to purchase sees that a person in possession has a certain title on record, the record discloses his full title, and he ought to be required to inquire no further, as he may ascribe such possession to that title and limit it by that title. Pom. Eq. Jur. § 616, lays down the principle that “where a title under which the occupant holds has been put on record, and his possession is consistent with what thus appears of record, it shall not be constructive notice of any additional or different title or interest to a purchaser who has relied upon the record, and has had no actual notice beyond that so disclosed.” In Woods v. Farmere, 32 Am. Dec. 772, the great Judge Gibson said that, by putting a particular conveyance- on record, the occupant does what he can to turn the inquiring purchaser from his path of investigation; that the party for whose benefit the record is made would be more misled by the use of it than if the occupant had pointed him to. his possession alone, as that would have led him to the fountain of it, and revealed to him the entire claim of the occupant, and when the occupant points at
Properly applied, this doctrine is plausible, though there is authority denying it. Some of the cases referred to in sustenance iof it will be found to be cases bearing rather on the character of possession as being equivocal or uncertain, not such a sole possession in the one claiming-the unrecorded title as to be noticed, as in the case of husband and wife, the wife claiming the unrecorded title, the husband being held the one in actual possession, not the wife; or grantor and grantee in possession, — and they do not assert that a sole occupant under the titles, one not recorded, will be limited in the effect of his possession as notice only of the recorded .title. But these cases do not go the length claimed for them in this case. Now, when one is in possession with two rights derived from one person, one right shown by a deed on record, the other not, there is some force in applying the rule. As, for instance, when a tenant enters under a lease or record, and later gets a deed from the landlord for the fee, not on record, or where a mortgageeis in possession under a recorded mortgage, and later buys the fee or equity of redemption by deed not on record; in these cases there is reason in saying that the occupant has but one right, that one recorded from tin's one grantor or lessor. But will this theory be applied to say that as the one in possession has on record a deed from A., and also has an unrecorded deed from B. for the same land, his possession is no notice of his right under B ? That when he sees that deed on record from A. he
In the case of Weisberger v. Wisner, 55 Mich. 246, (21 N. W. 331), (opinion delivered by Cooley, C. J.), the exact point involved in the case at bar was decided contrary to the exception contended for by the app.ellee. In that case Muzzy was the owner of the whole of a quarter section of land, and entered into a contract with Wisner whereby the latter was to enter into possession for the benefit of both, and receive a deed for an undivided half of the land. The half thus contracted for was conveyed by Muzzy to
Speaking for myself only, I would advise the abolition by the legislature of the rule that possession shall be fer se notice. The public registry is designed, not to preserve the owner’s title, but to notify creditors and subsequent purchasers of transfers. Possession is not notice to creditors, but is as to purchasers. Why are not purchasers entitled to protection? Make people piit their deeds and title bonds on record, and let the purchaser go to the public office and inquire, and not compel him to go far away to pick out the particular land, and see who is in possession and what his title. It is a dangerous doctrine, and not necessary to protect the owner in possession, who can record his papers. The reason for it ceased when transfers came to be written and when registration was provided. I notice that Judge English speaks about
Another reason given against applying in this case the rule that possession is notice is that in fact the defendants’ papers did not show right to the Jacob Cline half, but only to the Perry Cline half. This contention is based on the fact that when Perry Cline conveyed to Hatfield the deed conveyed all the land willed to him by his father, — that is, the entire “Old Home Place,” and one-half of the “Grapevine Tract,” — and when Hatfield conveyed to Sergeant he recited, “all the real estate herein conveyed, being part of a 5,000-acre survey conveyed from P-. A. Cline to said Anderson Hatfield;” and that, as the Perry Cline deed passed only half to Hatfield, Hatfield passed only half to Sergeant; and, moreover, as the Perry Cline deed referred to his father’s will, and that showed that Jacob Cline got this land equally with Perry, the entry of' Hatfield or the trustees was only under claim to half, and the trustees were holding as co-tenants with Jacob Cline’s heirs. This argument will not stand. When Perry Cline conveyed to Hatfield, it is true that he could and did convey only half, but, when Hatfield conveyed to Sergeant, Hatfield owned the whole half acquired from Perry Cline by both the old title bond and deed, and the other half from Jacob Cline by the same title bond, and Hatfield’s deed to Sergeant conveys the land by several parcels or tracts as entireties, not moieties, and this after recital is, at most, only false description, and, apart from the granting parts, granting-the tracts as wholes, and would fall under the old rule, “Falsa demonstratio non nocct cum dc corpore conslat,” stated in 1 Greenl. Ev. § 301. We plainly see that the intent was to convey the tracts as wholes, not merely half interests in them, and after-misdescription cannot defeat the plain intent. The intent in the recital was merely to refer to the former deed to tell what land was referred to, not what interest or estate was conveyed, which had been
Another forcible circumstance is that at the very instant of buying from the Cline heirs, as Ellison himself states in evidence, he agreed to pay them for hunting up evidence to prove their heirship. This imports that he expected litigation to sustain this claim to half the land; He says he then intended to sue for partition. Litigation with whom? Clearly, with the trustees, for he says he then knew they were in possession. If he did not know they claimed the entire land, acknowledging no one else’s right to half, why expect trouble with them? And if he expected trouble with others to whom Hatfield had sold en-tireties, the same fact would lead a reasonable man to assume the same claim of ownership under his conveyance to Sergeant. He says he knew, and told the Cline family, that Hatfield had sold more land to parties than he owned. This he did in an inquiring way, as if to learn from them the facts about it. The Widow Cline and the two sons denied his right to do so. Why did he not inquire of those persons on the kind? Why not look at the papers on record under which those in possession claimed, which would have told him they .claimed the whole, when he had so much to warn him and put him on inquiry? Why not take steps wdthin his reach, — ascertain in quarters readily accessible? It was only fair to ask the trustees in possession if they claimed the whole. There is in brief of counsel an argument that, where one is in possession under a recorded title, his possession is no notice of other claim, and that this is especially the case where the one in possession is a co-tenant with another, since his possession is in har
Another matter is in the claim that the deeds to Ellison are only quitclaim, and therefore he cannot hold the place of a purchaser for value, without notice. I think the deeds not mere quitclaim, but conveying the land itself. They “grant, bargain, sell, and convey all their title and interest in and to” that tract, etc.; and another clause declares, “It is hereby intended to convey one undivided half interest,” etc., and has special warranty. Touchard v. Crow, 81 Am. Dec. 108; Devi. Deeds, § 27. But, if purely quitclaim deeds, their character would not prevent Ellison’s claiming the position of a purchaser for value without notice. They pass title. 3 Kerr, Real Prop. § 2297; Brown v. Jackson, 3 Wheat. 451. Upon what I have always thought a very refined and illog'ical theory, the supreme court of the United States and others have held that a mere quitclaim will not allow its holder to say he is such purchaser. May v. Le Claire, 11 Wall. 217, 232; Dickinson v. Colgrove, 100 U. S. 578, 579; Wood v. Manufacturing Co., (Ala). 13 South. 948; 2 Pom. Eq. Jur. § 753. This is on the idea that the grantor merely releases such right as he has, without warranty, thus indicating- there may be claims or interests affecting the title, and the grantee in accepting it is notified by the grantor that there may be some defect in his title; that such deed is used by speculators taking chances, for merely nominal consideration, and subject to any equity against the grantor. 2 Warv. Vend. 615.
In this connection comes the fact that the second purchaser paid for the half of from two thousand to three thousand acres of coal land traversed by the Norfolk & Western Railroad, on which were vast operations in the mining of coal, only §200. A deed without warrant to make good title would indicate suspicion that there might be some trouble, and a consideration grossly inadequate. Strange that a vendor would sell an estate worth many thousands for a pittance. The very fact tells the purchaser that there may be trouble as to the right, and intimates to all that it was a mere chance that was being sold. Why a chance, unless it be from a suspicion of trouble? To give a purchaser the benefit of bona fides, it is necessary that he pay a valuable consideration, and this does not mean a full and adequate considei'ation, but a fair consideration; as, if the consideration be not in keeping with the character of the property, but grossly inadequate, the purchaser will not receive the benefit of bona fides. 2 Warv. Vend., p. 610,§ 10; 2 Pom. Eq. Jur. § 747. And this is more so when a deed is taken conveying without warranty. Dembitz, Land Tit. p. 976, § 132- The principle is well stated in Worthy v. Caddell, 76 N. C. 82: “One who claims against a prior donee or creditor, as a purchaser for value, must prove a
It is strenuously urged that the answer of the defendants set up this title bond from Perry and Jacob Cline, calls for affirmative relief by specific performance of it by conveyance of the land to the defendants, and that the defendants must first show payment of the five hundred dollars purchase money, but have not shown it. First, we are able upon the facts to hold that payment was made. This is established by the rule that a bond is presumed paid after twenty years from its maturity. 18 Am. & Eng. Enc. Law, 207; Criss v. Criss, 28 W. Va., 388; Sadler v. Kennedy, 11 W. Va., 187. But it is said that, under an executory contract for the sale of land, this rule does not apply, at any rate not to base a claim on it for affirmative relief, if it would avail as a defense in a suit for purchase money. I see no reason why this presumption should not apply to a debt for land as well as anything else. It is only a debt, no matter what consideration. The true rule is g'iven in Gregory v. Com., 121 Pa. St. 611, (15 Atl. 452), as follows: “All debts excepted out of the statute of limitation (that is, where that statute does not apply), unclaimed and unrecognized for 20 years, are, in the absence of sufficient explanatory evidence, presumed to have been paid.” Full note Alston v. Hawkins, (N. C.) 18 Am. St. Rep. 874, 879 (s. c. 11 S. E. 164). This presumption of payment bars a debt secured by a deed of trust, or reserved as a lien for purchase money in a conveyance of legal title. Pitzer v. Burns, 7 W. Va., 63; Camden v. Alkire, 24 W. Va., 674; Coles v. Withers, 33 Grat. 186; Bart. Ch. Prac. 117. And the case of Hanna v. Wilson, 3 Grat. 243, admits, in the case of a sale of land under an executory contract, that the presumption applies. So Massie's Case, 80 Va. 790; McCormick v. Evans, 33 Ill. 327; Morrison v. Funk, 23 Pa. St. 421, Where notes are yet in the hands of the vendor,
Affirmed.
