24 S.C. 285 | S.C. | 1886
The opinion of the court was delivered
On December 27,1870, the defendant, Sarah Nesmith, entered into a written contract with the plaintiffs for the sale of a certain tract of land to them on certain terms stated in said contract. The only one of these terms which it is necessary to notice, is expressed in the following language : “That if default be made in fulfilling this agreement, or any part thereof, on the part of the parties of the second part, then, and in such case, the party of the first part, her heirs and assigns, shall be at liberty to consider this contract as forfeited and annulled, and to dispose of said land to any other person in the same manner as if this contract had never been made ; and, further, that the said
Under this agreement the-plaintiffs went into possession of the land and made numerous payments towards the purchase money, but did not pay the same in full within the time limited for that purpose by the agreement. The defendant, Sarah Nesmith, claiming that by reason of this the contract was forfeited, sold and conveyed the land to her son and co-defendant, W. E. Nesmith, on December 29, 1880. The plaintiffs, on the other hand, claim that after the time limited for the payment of the last instalment, and before the conveyance of Sarah Nesmith to her son, W. E. Nesmith, the said Sarah Nesmith waived the forfeiture by accepting several payments on account of the purchase money and receipting for the same as such, and especially so by a statement in writing, bearing date February 1, 1879, purporting to be signed by said Sarah Nesmith in these words : “This is to show that the amount still due on the land occupied by Dug Tucker, Bonus Graham, and Hope McNulty is ($71.63) seventy-one dollars and sixty-three cents.” The defendants, however, contend that there was no legal evidence that Mrs. Nesmith had ever signed these receipts or the statement above copied, and this is one of the questions made by the appeal. The defendant, W. E. Nesmith, also claims that he is a purchaser for valuable consideration without any notice of the plaintiff’s equity, and this is the only other question made by the appeal.
The action was for specific performance, and it was referred to a referee to take the testimony and report his conclusions of law and fact to the court. Without going into the various matters considered in the report, which are not now before us, it is sufficient to say that as to the two questions raised by the appeal, the referee found as follows : “On February 1, 1879, the plaintiffs paid Sarah Nesmith $9.00 ; at the same time she gave them a statement showing the amount still due on the land occupied by
The case Avas heard by his honor, Judge Cothran, upon the report of the referee, “and exceptions filed thereto by both plaintiffs and defendants,” as he says, though Ave do not find any exceptions to the report incorporated in the “Case,” and therefore cannot tell with certainty whether the two findings of the referee, upon which the questions raised by the appeal largely depend, were properly excepted to. But as the Circuit Judge seems to have considered them, we will assume that these questions were properly raised. In speaking of the statement of February 1, 1879, his honor says : “This statement was signed ‘Sarah Nesmith,’ and upon comparing it with her signature to the original agreement, and with other acknowledged signatures of hers I am satisfied, as was the intelligent referee, that this instrument Avas genuine, and that the signature is hers.” And after discussing the point raised by the appellant as to the admissibility of testimony as to handAYriting by comparison, says: “I think the referee was right in admitting supplementary testimony” — referring doubtless to the fact that at the reference a witness, who claimed to be a judge of handAYriting, Avas permitted by the referee to testify, after comparing the signatures to the receipts and statement of February 1, 1879, Avith the acknowledged signatures of Mrs. Nesmith to the deed to her son, to the original agreement for the sale of the land,- and to an affidavit made in the application for injunction, that the signatures to the receipts and statement Avere in the same handwriting.
As to the question of notice to the defendant, W. E. Nesmith, the Circuit Judge said that he was unable to concur Avith the referee in his finding, that there Ava-s no proof of actual notice; but, on the contrary, concludes that the various circumstances, mentioned in the decree, were abundantly sufficient to have given him both actual and constructive notice, and if not should certainly have put him upon inquiry as to the true state of affairs.
From this decree defendants appeal upon the following grounds: “I. Because his honor erred in holding that the defendant, W. E. Nesmith, was not a bona fide subsequent purchaser of the land in question without notice of .the sale to the plaintiffs. II. Because his honor erred in holding that the various receipts and statements signed by the defendant, Sarah Nesmith, were completely proven, it being respectfully submitted that there was no evidence to sustain his honor’s conclusions that a comparison of handwritings was in aid of doubtful proof, but that these receipts and statements were only proved by a comparison with other handwritings of the defendant, Sarah Nesmith, as original evidence. There being no other evidence introduced as doubtful proof, consequently every receipt and statement signed by defendant, Sarah Nesmith, was entirely incompetent and violative of the well settled rule of evidence on the subject of a comparison of handwriting.”
As to the first ground of appeal, we agree entirely with the Circuit Judge. All the circumstances proved in the case which have been adverted to in the decree, and need not be repeated here, pointed very strongly to the conclusion that the defendant had notice of the claim of the plaintiffs when he took his conveyance from his mother. But waiving this, there can be no doubt that he had constructive notice. It is well settled that possession is notice sufficient to put a party upon inquiry, and that is enough. Massey v. McIlwain, 2 Hill Ch., 421; Sheorn v. Robinson, 22 S. C., 32; Bieman v. White, 23 Id., 490. Finding these plaintiffs in possession, his duty was to inquire of them by what right they claimed to hold the land, and such inquiry would have led to a notice of their equity which they are now seeking to set up.
As to the second ground of appeal, we see no error on the part of the Circuit Judge. Conceding the general rule to be as claimed by appellants, that comparison of handwriting cannot be resorted
So that in reality all testimony as to handwriting, except where the Avitness testifies that he saAv the party sign, or heard him admit that he did sign, is, in effect, by comparison. But there seems to be an exception to this rule (1 Greenl. JUvid., § 578), to wit: “Where other writings admitted to be genuine are already in the case. Here the comparison may be made by the jury with or without the aid of experts.” Now in this case the comparison Avas made with other writings admitted to be genuine which were already in the ease, viz.: the original agreement for the sale, the deed to W. E. Nesmith, and some affidavits made in the case upon the application for injunction. So that this case falls clearly under one of the exceptions mentioned by Mr. Greenleaf.
But, more than this; Ave think that the Circuit Judge whose province it was, according to the case of Benedict, Hall & Co. v. Flanigan, supra, to determine in the first instance whether there Avas such doubtful proof as authorized a resort to comparison of handwriting, having determined that question, and there, not being any patent error or any error at all in such determination, according to our view, the question is concluded. There was some testimony by the plaintiff, Tucker, tending to show, although possibly not sufficient to show, that the papers in ques- •
The judgment of this court is, that the judgment of the Circuit Court be affirmed.