Franklin, Reid & Co. v. Newsom
53 Ga. 580
Ga.
1875
Check Treatment
Trippe, Judge.

1. Thе rule that a purchaser of land is bound to inquire into the right of one in possession thereof, and that such possession charges the purchaser with implied notice of that clаim of right, is too firmly established to be now denied: 48 Georgia, 585; 25 Ibid., 55; 26 Ibid., 132, 19 Ibid., 337. It was claimed that this case was an exception to this rule, because at the time Lane bought from Quisenby, he, Lane, was in possessiоn as Quiseuby’s ‍‌​‌​‌​‌​‌​‌​‌‌​​​​​​‌​​‌​​​​‌‌‌‌‌‌​​​​‌‌‌​‌​‌​‌‌‍agent or superintendent, and there having been no visible change of possession, the doctrine of implied notice would not arise. In the first *582place, it might be repliеd, that Newsom is the claimant of the land, and he purchased from Lane, and went himself into possession before the deed to Franklin, Reid & Company was executed. Both Lane and Newsom had put improvements on the land and Nеwsom was in possession when plaintiffs in error got their deed. In Matthews vs. Demerritt, 22 Maine, 312, it was held, that the visible possession of an improved estate, even if no visible change of pоssession takes place at the time of the conveyance, is implied notice of the sale to subsequent purchasers, although the ‍‌​‌​‌​‌​‌​‌​‌‌​​​​​​‌​​‌​​​​‌‌‌‌‌‌​​​​‌‌‌​‌​‌​‌‌‍first purchaser’s deed was not reсorded. There was an exception recognized to this rule, to-wit: when the second рurchaser is proved to have known that the first purchaser was in possession withoutclaiming title before he bought, or where, from the circumstances, such knowledge must be presumed. The exception is a reasonable and proper one, but this case does not come within it. Had Franklin, Reid & Company known that Lane was in, not claiming title when he bought, or such facts existed as to cause such a presumption, then they would not be controlled by the general rule so far as Lane was concerned. But nothing of that sort appears. True, he was the son-in-law of Quisenby. But he had put valuable improvements on the land, advisеd with Calloway, the holder of the title, about buying it; nothing was kept secret, did buy and pay for it;sold it to Newsom for other land Newsom had, and exchanged possession with the latter. In Webster vs. Maddox, 6 Green-leaf, 256, the same doctrine was held. There was no visible change of pоssession when the deed was executed to the tenants; and their possession, though their deed w'as not recorded, was decided to be sufficient notice of their title. It is true, there was no deed to either Lane or Newsom, but each held a perfect equity against Quisenby, the vendor of Franklin, Reid & Company.

2. There, is no doubt that the general rule is, that the right to a specific performance is in the sound discretion of a ‍‌​‌​‌​‌​‌​‌​‌‌​​​​​​‌​​‌​​​​‌‌‌‌‌‌​​​​‌‌‌​‌​‌​‌‌‍court of equity. In this state, that powеr is to be exercised by the jury under the evidence and charge of the court. *583Where thе evidence and the rules of law justify such a decree, a party has the right to claim it.

3. Thе title to the whole land was in Calloway, both to the part sold ‍‌​‌​‌​‌​‌​‌​‌‌​​​​​​‌​​‌​​​​‌‌‌‌‌‌​​​​‌‌‌​‌​‌​‌‌‍to Newsom and the portiоn retained by Quisenby. Franklin, Reid & Company advanced the unpaid portion of the purchаse money in behalf of Quisenby to Calloway, and were to take the title for their security. In еxecution of this agreement, Quisenby made a deed to them to all the land. This put them in the place of Calloway, with the right he had as to holding the whole land subject to his claim for the unpaid purchase money. To enforce that right they may have a decree to sell the portion of the land which w'as not sold by Quisenby; and if that be not sufficient to discharge what they have paid of the purchase money to Calloway, then that the balancе so sold to Lane and' Newsom be liable for the unpaid portion of such advancеment. As the decree did not allow, under any circumstances, the claim of plaintiffs in errоr to be asserted against that part of the land, it should be modified or a new trial had. The judgment rendered will contain directions on this point.

4. The court refused to charge as requеsted by plaintiffs in error, that if when Newsom bought from Lane he paid for the land in ‍‌​‌​‌​‌​‌​‌​‌‌​​​​​​‌​​‌​​​​‌‌‌‌‌‌​​​​‌‌‌​‌​‌​‌‌‍part with property belonging to them, it was a fraud, and gave as a reason why the request was refused, that Frаnklin, Reid & Company only held a mortgage on such property. The question of fraud on the part of Newsom was distinctly submitted to the jury by the court. The testimony touching it, and as to Newsom having sеnt cotton to be shipped to plaintiffs, need not be stated. All was before the jury. Nothing аppeared to show that the mortgage lien was not yet good against the property, or that it could not be enforced.

As indicated, the judgment is reversed, and the case remanded with directions.