22 Or. 242 | Or. | 1892
This is a suit to foreclose a mortgage on certain. real property described in the record. The complaint
It is not possible to read the evidence of the transactions by the Rayburns .which took place in reference to this property while Wood was in possession without being strongly impressed with the conviction that the plaintiff had actual notice of the equities of Wood. His dealings with Mis. Huffman in respect to this property lead strongly to this conclusion. As he dealt with her at the time the deed was executed to his brother, and was the principal actor in the matter, his conversation with her in respect to the taking of the deed, and all the circumstances surrounding the transaction, indicate that he must have had some information or knowledge of Wood’s equities in the land. He knew when he took this mortgage from his brother that the mortgagor, his father, had never been seized nor in possession of the land until 1886, and the evidence of Felger is to the effect, that he obtained possession then by force; but the evidence does show that Wood was in possession of the land from July, 1881, until S. Rayburn, the father, obtained possession of it as indicated. Mrs. Huffman was not in possession when she made the deed to E. L. Rayburn, and Wood was in possession, open and notorious, at that time, and for several years preceding. This mortgage was taken on the land with notice of all these facts.
.It is not necessary to specify the circumstances in detail. The proposition is elementary that possession of land constitutes one kind of notice. Open and exclusive possession is sufficient to put a purchaser upon inquiry. (Fair v. Stevenot, 29 Cal. 486; Pell v. McElroy, 36 Cal. 268.) “The rule is,” said Downer, J., “that possession to be notice must be open, visible, exclusive^ and unambiguous, not
In Moyer v. Hinman, 13 N. Y. 180, the plaintiff was in actual possession of farming lands, under a contract of purchase; and that circumstance was held notice to all persons who had subsequently become interested in the premises, of all the plaintiff’s rights under his contract. In Bank v. Flagg, 3 Barb. Ch. 316, it was held that the actual possession of the premises by the tenant of a purchaser, was constructive notice to subsequent mortgagees of the equitable rights of such purchaser. There must be actual possession, manifested by such acts of ownership as would be observed by others. (16 Am. & Eng. Ency. Law, 802.) A person taking a conveyance of land when another is in the actual and visible possession thereof, will be affected with notice of everything in relation to the title which could be known on diligent inquiry. Where a party has notice of such facts as should put a prudent man on inquiry, a failure to make such inquiry is visited with all the consequences of actual notice. (Wood v. Rayburn, 18 Or. 1.)
The possession of Wood was of that open and visible character, and manifested by such acts of ownership, as would have been observed and known. Where such is the case, notice will be imputed,—there is no other reasonable inference from the facts. The reason is, that when such facts come to the knowledge of the purchaser, or subsequent incumbrancer, the law requires him to pursue it until it leads to notice. “Whatever,” said Sterrett, J., “ puts a party on inquiry amounts to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, where the inquiry, if pursued, would lead to knowledge.” (Parke v. Neeley, 90 Pa. St. 59.) The plaintiff here was agent for the defendant in the transaction which culminated in the suit of Wood v. Rayburn, supra. His conduct in that negotiation and transaction indicated that
The case is here upon its facts, and as such we have examined and decided it. Owing to some matters in the brief and the evidence set out in Wood v. Rayburn, 18 Or. 1, stipulated to be used in this case, we take occasion to say that it does not appear to us from the evidence that the deed of Mary E. Huffman to E. L. Rayburn was changed or altered by J. W. Rayburn after she signed it. On the contrary, the preponderance of the evidence is the other way, and this statement is made to avoid any inference of that kind; but in the view we have taken of this case, the consideration of this question becomes unnecessary.
The decree of the court below must be affirmed.