43 Miss. 260 | Miss. | 1870
John Parker exhibited his bill in the chancery court, against Foy and Florer, in which he states that on the 2d of September, 1858, he sold aqd conveyed to Foy, a certain tract of land ; that on the same day, Foy made and delivered to him his five several promissory notes for $1,200, payable annually, from the first of January, 1859, respectively. All of the notes, except the last one, maturing the first January, 1864, have been paid. That on the — day of-, A. D., 1865, Foy sold and conveyed this land to Florer; that Florer had notice chat the note due first of January, 1864, was unpaid, and was for part of the purchase money due from his vendor to Parker. Pro oonfesso was taken against Foy. Florer answered, denying notice of the existence of the .note, or that any part of the purchase money was due from Foy to Parker, claiming protection as an innocent purchaser, for valuable consideration, without knowledge of the claim and equity of Parker. On final hearing, on the pleadings and evidence, a decree was rendered against Foy for the amount found due on his last installment of the purchase money, represented by his note to Parker, and the land was subjected for the sum of $600 in favor of Parker as against Florer. From this decree, Parker has appealed, and Florer also, has prosecuted a cross appeal, both of which have been submitted to us as one case.
It is insisted in this court for Parker, that the decree against Florer is, under the law and facts, for two small an amount. And it is insisted for Florer, that there is no lien on the lands in favor of Parker, and that the bill ought, as to him, to have been dismissed, he being an innocent purchaser without notice.
The proposition was pressed by the counsel for Florer in
If the purchaser had notice before execution of the deed, or payment of the purchase money he will be bound by it, Lady Rodman v. Vandearly, 1 Vernon, 179; Jones v. Thomas, 3 P. Williams, 243; Strong v. Lord Winsor, 3 Atkyns, 630.
In order to the protection, the purchase must be complete before notice of the prior equity. To make it complete, there must be on the one side, an execution of the conveyance, and on the other, a payment of the whole of the purchase money, and the protection will be denied if the notice be given before the transaction is complete in either particular. Simmons v. Richardson, 2 Litt., 220; Nantz v. McPherson, 7 Munford, 599; Pillow v. Shannon, 3 Yerger, 308; Bush v. Bush, 3 Strob. Equity. 301; Barrett v. Nosworthy, 2 Lead. Cases in Equity, 90, et sequiter and cases cited.
If the sub-vendee has notice of the lien in favor of the original vendor, before he receives a deed and acquires the legal title; then the lien attaches to the land, and it may be subjected to the payment of the original purchase money. Subject, however, to a superior equity in favor of the subvendee, to be reimbursed, the purchase money paid, which
2d. As to the character of the notice, the principle seems to be pretty well established by authority, that whatever is enough to excite attention or put the party on inquiry, is notice of everything to which the inquiry might have led. Sufficient information to lead to a fact, shall be deemed sufficient to charge a party with knowledge of it. Kennedy v. Green, 3 My. & K. R., 719; Ploughby, 1 Gallison, 41; Hinde v. Vattier, 1 McLain, 128; Carr v. Hilton, 1 Curtis C. C. Rep., 393; Wailes v. Cooper, 24 Miss. Rep., 228.
In this last case the court say, “that if the title deeds under which a purchaser derives title recite an incumbrance, he will be bound by that recital, and presumed to have had notice of it whether he read it or not.” The incumbrance referred to was a mortgage which was not recorded at the date of the purchase. The court say in reference to verbal notice, “ that a party may, perhaps, disregard a mere floating rumor, circulated by irresponsible persons.” From a careful examination of the testimony we are satisfied that Florer had direct and positive information that part of the purchase money to Parker was unpaid.
Leachman, who was the attorney for Florer to examine the
But inasmuch as the record does not show the exact amount due at the time he had notice, and as the true balance may, with reasonable certainty, be ascertained, we reverse the decree and remand, with instructions to the court below to ascertain what amount was paid to Foy by Fiorer at the date of his purchase and before notice of the claim of
Decree Reversed.