3 Paige Ch. 421 | New York Court of Chancery | 1831
Upon the final hearing of this cause, the complainant will .be holden to strict proof of the agreement set up in his bill, on which he founds his claim to the equitable interference of this court; and if he does not succeed in establishing such agreement, bis bill must be dismissed, whatever may be the result of the present application. In this stage of the cause, however, and before he has had an opportunity to examine his witnesses, every allegation positively sworn to in the bill, and which is not substantially denied in the answer, upon the defendant’s own knowledge, must be taken as true. The case then presented on the appeal is this: The complainant was in possession of the north half of lot No. 54, at the time of the purchase by Seymour and Welles, under a written agreement from Carter to reconvey that part of the lot to him, upon the payment or security of the small belance due on the mortgages over and above the $1600 which Carter was to pay for the south half of the lot. And these purchasers from Carter took their conveyance, and paid the purchase money for the whole lot, after they had actual notice of the complainant’s possession ; and without making any inquiries as to the extent of his rights, or the nature of that possession.
It is the settled doctrine of this court that where the equities of the parties are equal, and neither has the legal title, the one who has the prior equity must prevail. Nor will this court permit the party having the subsequent equity to protect himself by obtaining a conveyance of the legal title, after he
I apprehend, however, that the vice chancellor is under a mistake in supposing that this is a question of notice under the recording act. The object of that statute was to protect a subsequent bona fide purchaser against a previous conveyance of the legal estate, or of some part thereof; and which
.This is undoubtedly a hard case for the purchasers, who supposed they were getting a good title. But as the complainant was not aware of their negotiation for the purchase of the property, and therefore had no opportunity to apprize them of his equitable claim to a re-conveyance of the north half of the lot, it would be equally hard to deprive him of his property without consideration. Seymour and Welles1, were informed he was in possession, which by the settled law 1 of the land was sufficient to put them on inquiry, and to de- i prive them of the defence of bona fide purchasers without no- f tice of his rights. And they, in the language of Lord Eldon, \ having neglected to take the obvious precaution of inquiring i as to the nature and extent'of the tenants interest in the property, they must suffer the consequences of their neglect.
The order appealed from must be reversed, with costs; and the injunction must be retained until the hearing. But it must be without prejudice to the right of the respondents Seymour and Welles, to bring an ejectment suit, and to proceed to judgment therein, unless the complainant shall, within thirty days stipulate to deliver up the peaceable possession of the property to them, and pay the value of the mesne profits to be ascertained by a master under the direction of the court, if he does not succeed in establishing his equitable right to a re-conveyance upon the final hearing of this cause.
In Buck v. Halloways Devisees, (2 J. J. Marsh. Rep. 180,) the court say, “The only sensible rule is, that actual’residence upon the land is notice to all the world of every claim which the tenant may legally assert in defence of his possession.”