3 Blackf. 147 | Ind. | 1832
This is a suit in chancery to enjoin a judgment at law, and obtain a re-conveyance of land. The complainant.
Prayer that the injunction granted be made perpetual, the 'defendants be decreed to re-convey to him the said land, and refund the costs he has paid in the action of disseisin, &c.
The defendant, Holcroft, by his answer, admits the assignment of the certificate as charged, his having surrendered it and received a certificate of further credit, and the execution of the bond, at the time charged in the bill. He states, that the real consideration was his liability as the complainant's surety, on a note to John Holcroft, dated 30th of March, 1816, for 303 dollars and 83 cents; that the complainant paid on the note 50 dollars, which was endorsed; that he afterwards paid the note, and that the complainant has since made the following payments: 25th December, 1819, 30 dollars; 1st September, 1821, 35 dollars; 7th April, 1824, 16 dollars; 17th September, 1824, 24 dollars; which are all the payments made by the complainant. He admits Gaither's having called on him in 1818 or 1819, and having informed him that he had his bond to the complainant, and that he had a sum of money, but that Gaither did not show the bond, or tender the money unconditionally; that Gaither offered to pay him whatever was due from the complainant, if he would assign to him and Marshal Hunter the certificate for the land, which he declined doing; Gaither not pretending that the land belonged to him and Marshal Hunter. He says the complainant left the bond with him, in July, 1820, with the understanding that he was to do with the land what he thought proper and right, and admits a trust in honour to account for any surplus, after paying the debt. He also admits he sold the land to the other defendants for 300 dollars, but says that he would, prior to said sale, have transferred to the complainant
The defendants, Ephraim W. and Ezekiel W. Bentley, by plea and answer, say, that on the 30th March, 18*25, they purchased the land described in the bill, for a full and valuable consideration, viz. 300 dollars,— and on the day of the purchase, received an assignment from the defendant, Holcrofi, of the certificate of entry, without notice of the equity pretended in the complainant’s bill. By their answer, they deny knowledge or notice of the complainant’s claim, until after the purchase.
The cause was submitted to the Circuit Court, on bill, answers, exhibits, and depositions. That Court-decreed, that the defendants, Ezekiel W. Bentley and Ephraim W. Bentley, should re-assign the certificate for the land, described in the bill, to the complainant; that the rióte executed by the complainant, as principal, and Nathaniel Holcrofi, surety, should be delivered up to the complainant, a copy thereof being left-on file; that the injunction be made perpetual, and' that the complainant pay the costs of this suit, and the costs in the action of disseisin.
From the case presented, it appears fhatthe complainant, to indemnify his surety, assigned to him a certificate for a quarter section of land, upon which the father of the complainant resided: that this was the inducement to the assignment, is shown by the bill, admissions, and proofs. If such be the fact, parol testimony would be admissible to show the true nature of the transaction, and to restrain the transfer to its proper limits. Day v. Dunham, 2 Johns. Ch. R. 189.—Strong v. Stewart, 4 ib. 167.—-James v. Johnson, 6 ib. 417.—Henry v. Davis, 7 ib. 40.
The assignment is not, however, dependent upon this class of testimony. A bond, executed by the assignee on the day of the assignment, discloses the intentions of the parties, and the object of the transfer. By the condition of the bond, the certificate was to be re-assigned to the complainant on the payment of a specific sum of money, and the defendant, Holcrofi, in his answer states, that that sum was the amount of his liability as complainant’s surety, The execution of the bond would therefore, agreeably to a course of decisions, clothe the assignment with the incidents of a mortgage, and enable the redemption of the land by the assignor, unless opposed by the interests of innocent purchasers. Manlove v. Ball, 2 Vern. 84.—1 Madd. 517.
It is then material to inquire if the defendants, Ezekiel W. Bentley and Ephraim W. Bentley, who purchased in 1825 of the defendant, Holcrofi, are such purchasers. If they are, they are protected. They allege, by plea and answer, that the purchase was made for a full and valuable consideration, and deny notice of the equity charged in the bill, until after the purchase. This denial is not sufficient. They cease to be protected and regarded as innocent purchasers, if after the purchase, but before payment of the purchase-money, they received notice. Harrison v. Southcote, 1 Atk. Rep. 538.—Story v. Ld. Windsor, 2 ib. 630.—Frost v. Beekman, 1 Johns. Ch. Rep. 288, 301.—Murray v. Finster, 2 ib. 155.—Jewett v. Palmer, 7 ib. 65. They do not state that the purchase-money has ever been paid, nor can we infer that fact from the statement, that the purchase was made for a full and valuable consideration. The payment of the purchase-money is not necessarily simultaneous
Exclusive, however, of the objection to the plea and-answer of the purchasers, the testimony of two of the witnesses, Cook and Duggins, establishes the fact that the defendants had by their own admission actual notice of the complainant’s equity, and that the purchase was made with a willingness for a struggle. One of the witnesses states Ezekiel W. Bentley’s admission of Ihe complainant’s equity, in general terms, without fixing it either before or after the purchase. The other is more definite, and gives his admission of a knowledge of the equity charged, prior to the purchase. If notice was thus possessed, the purchase and payments, if made, were in their own wrong. The law recognizes a notice to be either actual or legal. From the whole case it.is apparent that the complainant, by his tenant, Pained Hunter, was in uninterrupted possession of the land, from the assignment of the certificate to .the institution of the action of disseisin. In the case of Lessee of Billington v. Welsh, 5 Binn. 129, Tilgham, C. J. speaking of notices, actual and legal, says,— “These legal notices, being sometimes contrary to the fact, are confined to cases in which violent presumption of actual notice arises. , The undisturbed possession of land has generally been considered as legal notice; because the fact of possession being notorious, it is sufficient to put the purchaser on his guard, and to induce him to inquire into the title of the possessor. But to entitle the bare possession to such weight, it ought to he a clear, unequivocal possession.” In'this case, the purchasers obtain, not a legal title, from one in possession of the land, but an inchoate and imperfect title, from one without possession. Ordinary 'diligence would surely have prompted inquiry, and inquiry must have resulted in information of the complainant’s equity. The defendants then, having both actual and legal notice of the. complainant’s equity, cannot claim protection. The interest of the complainant in the land-is, therefore, unaffected by the sale made by the defendant, Holcroft, to the other defendants.
Upon tendering the amount due to the defendant, Holcroft, he having paid the note to John Holcroft, the complainant is
We are therefore of opinion, that the decree' of the Circuit Court be affirmed, except so far as relates to the costs below in this suit, and the costs in the action of disseisin, and that those costs be paid equally by the defendant, Holcroft, and the defend* 'ants, Ezekiel W. Bentley and Ephraim' W. Bentley.
The decree is affirmed, except, &c. with costs.