delivered the opinion of the Court:
Priоr to the 9th of March, 1880, James L. Junkin and three other parties owned, as tenants in common, the west sixty acres of the S. E. quartеr of Sec. 23, T. 12 N., R. 4 W., in Henderson county, this State. By mutual agreement, about that date partition was made of said real estаte, the south fifteen acres thereof [designated as lot one] being set off to said James L. Junkin, and a quit-claim deed by thе other parties executed and delivered to him, which was intended to convey said lot one, but by mistake in the description a like number of acres was conveyed in the southwest quarter of said section.
On the 24th of April, 1882, said Junkin executed and delivered to one Herbert J. Elrick, and he, January 16,1886, to this defendant in error, deeds of conveyance, also intended to convey lot one; but the mistake in the deed first mentioned was continued in each of said last mentioned convеyances.
On the 25th of January, 1887, one Charles Eckley obtained from said James L. Junkin, and the other tenants in common with him, or a part of them, a quit-claim deed to said lot one, by correct description, and on the 21st of the following month conveyed the same to his sister, Sarah Eckley, who, on the 25th of the following May, deeded it to the plaintiff in error, William T. Mason. To thе August term of the Circuit Court of Henderson county defendant in error filed his bill against plaintiff in error and others, to correct sаid mistake in his deed, and those through which he claims title, and to set aside said adverse conveyances. On the hearing the Circuit Court entered a decree according to the prayer of the bill, from which this appeal is prosecuted. The only substantial ground of reversal urged is that the evidence fails to support the decree. That the deeds to James L. Junkin from him to Elrick, and from the latter to defendant in error, were each intended to convey the fifteen aсres in the S. E. quarter, and that none of the grantors therein named owned, or ever claimed to own, any lands whatever in thе S. W. quarter, is established beyond all controversy.
As between the parties to those conveyances, a court оf equity would, on the evidence in this record, unhesitatingly correct the mistake in these deeds and make them conform tо the intention of the parties. Lindsay v. Davenport,
The only question, then, which can be seriously entertained in the decisiоn of this case is, can that relief be properly decreed against plaintiff in error, a subsequent purchaser ? It is a familiar principle of equity jurisprudence, that if one obtains a conveyance of property, with noticе of an equity in relation thereto binding upon his grantor, he will also be bound. Only innocent purchasers, without notice of a mistake, can be heard to object to its correction. Preston v. Williams et al.,
It is not pretended, as it certainly could not be with seriousness, that uрon the evidence in this record Charles Eckley is to be treated as a bona fide purchaser of said.land without rеference to his knowledge of the equities of defendant in error.
He obtained his deed without consideration by false and fraudulent representations. Neither can it be said that his sister was a purchaser from him in good faith. The consideration in his deed to her is but fifty dollars, although it conveyed, in addition to this fifteen acres, another tract of four and one-half acres, while all the evidence tends to show that the fifteen acres alone were worth three times that ambunt.
Plаintiff in error admits that before the conveyance to him he saw the deeds to Charles and Sarah Eckley, the first naming only а consideration of one dollar and the latter fifty dollars. Two witnesses testified upon the hearing that they told him beforе he bought the land that defendant in error owned it. Defendant in §rror swore that some two months prior to the date of Mason’s deed the latter proposed to purchase the land of him, and this testimony is corroborated by that of a disinterested witness.
Plaintiff in error contradicts all these witnesses, and swears positively that he bad no notice whatever of defendant in error’s claim to said land when he purchased it from Sarah Eckley; but the chancellor was certainly justifiable, from all the testimony, in disbelieving him and giving credence to the testimony of other witnesses. We think the clear preponderance of the testimony is that plaintiff in error was not an innocent purchaser, without notice of the rights of defendаnt in error, but had both actual and constructive notice of the same.
That possession of land is sufficient to charge all others with notice of the rights, legal or equitable, of the possessor, is too well settled to call for the citаtion of authorities.
The rule has been many times applied by this court and others to cases of this ldnd. It is true, that to constitutе such notice as against a bona fide purchaser, the possession must be open, visible and exclusive; but it may be еvidenced by any acts which clearly show an appropriation of the property to the use of the person claiming the same.
The lot in question is wood land, and there is no conflict in the testimony as to the fact that both defеndant in error and Elrick, from the time they obtained their respective deeds, cut timber therefrom and paid all taxes аssessed against it. Their acts of ownership seem to have been sufficient to apprise the neighbors, and adjoining owners generally, that they claimed to own it, and it is manifest, if plaintiff in error did not also know that fact, it was because he preferred to remain ignorant when the law made it his duty to seek information.
We think the decree of the Circut Court in this case is eminently just and proper, and it will be affirmed.
Decree affirmed.