1 Blackf. 91 | Ind. | 1820
There is much difficulty in understanding this cause from a view of the record. The answer cannot be reconciled with the depositions, and the depositions themselves are at variance with each other. The following, however, is believed tobe a correct state of the case. In March, 1816, Henry M'Caslin purchased a town lot in Brookville from Thomas Clark for a valuable consideration; a penal bond was given by Clark, conditioned for the execution of a deed a short time afterwards; and the purchaser entered into possession. About a year after M’Caslin’s purchase and possession, Nathan D. Gallion bought the same lot of Clark, paid apart of the purchase money, and took a bond conditioned for a title, without any notice of the prior incumbrance. While a considerable part of the purchase-money remained unpaid by Gallion, and
The title bond upon which the complainant below founded his claim, was certainly an 'equitable lien on the property; and if the defendant purchased with a knowledge of that incumbrance* he must lose the cause. 3 Atk. 238. On the contrary, if he is an innocent purchaser for a fair consideration; if he paid his money and received his deed, without sufficient notice of such prior right; his title cannot be impeached- either at law or in equity. 1 Eq. Cas. Abr. 333. The bill charges the sale and conveyance by Clark to Gallion on the 19th of March, 1817; and alleges that Gallion, at that time, and before such purchase, had full knowledge of the complainant’s right. The answer states, that the defendant purchased on of about the 9th of March, 1817, paid part of the purchase-money, and received from Clark a title bond; and that, at the-time of the purchase, he had no knowledge of any prior incumbrance. It admits the information of Ramsay on the 18th of March, 1817; and says that Clark, for the first time, on the 19th of March following, told the defendant something about M’Caslin’s claim, which he declared to be forfeited. Now, what is here set out in the answer may be all true, that the defendant knew nothing of the incumbrance on or about the 9th, when he made his contract; that Ramsay told him on the 18th; and that Clark did not tell him till the 19th; and yet, at the same time, he might have received, from a hundred other persons, clear and undoubted notice of the complainant’s equity, before the execution of the deed. The charge therefore in the bill, of the defendant’s knowledge of the complainant’s right, at and before the sale and conveyance on the 19th of March, 1817, is no where denied in the answer; and, so far as Ramsay’s information goes, is
Let us next examine, whether this notice was given to the defendant in time to render it obligatory. But a small part of the consideration-money had as yet been paid. The consideration was 500 dollars; of which, only 150 dollars were paid at the time of the contract. For the balance, the defendant gave Clark a title bond for a lot in Brookville valued at 200 dollars, and his note for 150 dollars. Before the defendant complied with the condition of his bond by making a deed for the lot, and before he paid the note of 150 dollars, he had received the notice of the complainant’s claim to the property
The Court entered a decree in favour of the complainant.
Notice at any time before the actual payment of the purchase-money, is obligatory. Jones v. Stanley, 2 Eq. Cas. Abr. 685. — Tourville v. Naish, 3 P. Wms. 307. — Harrison v. Southcote, 1 Atk. 528, 538. — Story v. Ld. Windsor, 2 Atk. 630. — Frost v. Beckman, 1 Johns. Ch. R. 288, 301. — Murray v. Finster, 2 Johns. Ch. R. 155. — Jewett v. Palmer, 7 J ohns. Ch. R. 65. That it was secured to he paid before notice, is not sufficient. Hardingham v. Nicholls, 3 Atk. 304. — Sugd. Vend. 487. — Jewett v. Palmer, supra.
The right of lacking a prior to asubsequent incumbrance, is founded on the maxim, that where equity is equal the law must prevail. Thus, when a third mortgagee without notice, having equal equity with the second, buys in the first mortgage, which carries with it the legal estate, he has both law and equity on his side, and squeezes out the second mortgagee, who has only an equitable title. This was settled in Marsh v. Lee, 2. Vent. 337, by Ld. Hale, who calls it the creditors tabula in. naufragio. The doctrine of tacking, however, has been frequently considered in England as having a great appearance of hardship. 2 Cruise on R. P. 207 — 250. It is not recognized in Ireland, in consequence of the registry act. Latouche v. Ld. Dunsany, 1 Sch. and Lefr. 137, 157. And in New-York it is held, that as a preference is there given by statute to registered mortgages, according to the times of their respective regis-.
If A. enters into a contract with B. for the sale of land, and afterwards refuses to perform his contract, and sells the land to C. for a valuable consideration, B. may, by bill, compel C. to convey to him, provided he be chargeable with notice, at the time of his purchase, of B.’s equitable title under the agreement. Champion v. Brown, 6 Johns., Ch. R. 398, 402.