Johnson v. . Hauser
88 N.C. 388
N.C.
1883
Check Treatment
Smith, C. J.,

after stating the case. The validity of the trust under the agreement stated in the answer, and attaching to the estate conveyed to Jenkins and Hauser, independently of the parol contract of purchase from Poindexter, does not appear to have been contested, and if it had been, it finds support in the ruling in Mulholland v. York, 82 N. C., 510, and the cases therein cited. Assuming the legal sufficiency of the defendant’s equity and right to have a conveyance to him, on his reimbursing the amount advanced by Jenkins and Hauser, as against them, the inquiry is as to the notice necessary to their following the estate transferred to the plaintiff, and this is the only point presented in the appeal.

We think the defendant was entitled to the instruction asked, and that there was error in refusing to give it, as well as in the instruction given in substitution. The decisions of this court are conclusive to this effect.

In Edwards v. Thompson, 71 N. C., 177, the subject was carefully considered, and it was held that an open, notorious and exclusive possession in a person other than the vendor, is a fact of which a purchaser must inform himself, and he is conclusively jiresumed to do so.” This ruling was made applicable to the plaintiff who resided in South Carolina, and had no knowledge of the agreement of sale out of which the equity arose, or of any incumbrance of the title of his bargainor, except so far as could be inferred front the fact of possession, and this fact was also unknown to the plaintiff. Bost v. Setzer, 87 N. C., 187; Adams’ Eq., 158.

The same deduction of notice from possession, merely, is made in the later case of Tankard v. Tankard, 84 N. C., 286, and allowed to prevail against an express finding of the jury to the contrary, upon a distinct issue submitted. Delivering the opinion, Dillard, J., observes: “An actual possession is a fact that *391 the purchaser ought to know, and the right by which the possessor holds is also a fact he might know by inquiry, and therefore the law presumes that he does hnow it.”

Here, not only is the actual possession conceded, but the plaintiff had personal knowledge of the fact before and at the time wheu the deed to her was executed; and the case is more strongly against her in the effort to escape' responsibility and discharge the estate of the adhering trust, than against those in the cases referred to.

There is error, and the verdict must be set aside and a venire de novo awarded. Let this be certified.

Error. Venire de novo.