55 N.C. 9 | N.C. | 1854
The appeal was taken from an interlocutory order made by his Honor dissolving the injunction heretofore granted, and the case presented by the bill and answer, is sufficiently stated in the opinion of his Honor. The bill alleges that Susan Webber, one of the plaintiffs, was the owner, in her own right, of a tract of land, which after her intermarriage with the other plaintiff, Samuel Webber, it was agreed between them, should be conveyed to one Spiers Witherington, for the purpose of being sold, and that the money arising from the sale, should be placed in the hands of Thomas Moore, for the sole and separete [separate] use of the said Susan. All of which was accordingly done, and the purchase money amounting to $87, was by the said Witherington, delivered over to the said Moore, who agreed to hold (10) it on the trust above stated. The bill further charges that the plaintiff, Susan, purchased from Mrs. Rebecca Hart the tract of land *9 now in contest, and on which she and her husband were then living, and where they continued to live, and now live, for the price of $135, and to make up this sum, the said Thomas Moore paid over to her agent, M. Barret, the sum of $87 so in his possession belonging to the plaintiff, and she paid the balance, $48 of her own money. It is further charged that the plaintiff, Samuel, being indebted to one Edward Carman, in the sum of $30, the land was, with her consent, conveyed to him, she joining in the conveyance. That though the deed was absolute on its face for the full sum of $135, it was intended only as a security for the money due him, Carman, and that no money was paid; that she offered, subsequently, to pay to him the amount of his debt, and demanded a reconveyance which he declined to make. Subsequently, Carman conveyed the land to the above named Thomas Moore for $30, which she paid him, but he refused to reconvey it to the plaintiff unless she would consent to pay to him a debt of $50 due to him from the plaintiff, Samuel. A reconveyance from Moore was demanded, with an offer to pay him the sum he claimed, which he refused, and afterwards, in December 1852, sold and conveyed the land to the defendant for the sum of $200: and the plaintiffs charge, that Taylor, at the time of his purchase, had full notice of their equitable title. From him a reconveyance was demanded. They further show that the defendant has instituted a suit in ejectment, and recovered a judgment, as they could make no defence, and threatens to turn them out of possession. An injunction issued according to the prayer of the bill.
The defendant admits his purchase and the amount paid, but alledges [alleges] he is a purchaser without notice of the equity which the plaintiffs' claim, and without any knowledge of the alledged [alleged] promises of Carman or Moore. He admits that at the time he purchased the land, he knew that the plaintiffs were living on it, but he supposed and believed that they were living there as the tenants at will of (11) Thomas Moore.
Upon the coming in of the answer, the injunction was dissolved, and the plaintiffs appealed to this Court.
The deed to Carman from the plaintiff, was executed in October 1850.
Our sole inquiry, at present is, whether there is error in the interlocutory decree dissolving the injunction. The equity of the plaintiffs claim, rests upon the alleged knowledge of the defendant of its existence at the time of his purchase. It is a rule of Equity that a purchaser, taking with notice of a prior equity, takes subject to that equity, for he shall be assumed to have contracted for that only, which *10
the owner could honestly transfer, namely, his interest, subject to the equity, as it existed at the time of the notice. Thus a purchaser from a trustee with notice, becomes himself a trustee. This is a well known principle of equity jurisprudence, and is not questioned in this case. The only difficulty, some times, is, in ascertaining what degree of information will amount to notice. It is not essential that the notice should be given to the party himself, notice to his agent is sufficient. Where it is by actual information, there can be no difficulty, or where the purchase is made during the pendency of a suit. But it is not necessary, in order to charge a purchaser, that he should have actualinformation of the equity. He may be affected with notice by information of the existence of any fact or instrument, relating to the subject matter of his contract, which, if properly enquired into, would have led to its ascertainment. For instance, says Mr. Adams, p. 158, "if the defendant purchases land which he knows to be in the occupation of another than the vendor, he is bound by all the equities of the party, who is in the occupation. So, if he knows of any instrument forming directly or presumptively, a link in the chain of title, he will be presumed to have examined it; and therefore, to have notice of all other instruments or facts, to which an examination of the first could have led him." Whatever, in fine, is sufficient to put a person on inquiry, in relation to prior equities, is considered in equity, equivalent to notice. Hawley v. Cramer, Cow., 717, Pearson v. Daniel, 22 N.C. (12) 360; Benzien v. Lenoir,
With the equities set forth in the bill, we have at present, nothing to do; they are charged in the bill and not denied in the answer. The defendant rests his defense, in the present enquiry on his being a purchaser for a valuable consideration without notice. Being of (13) opinion, that the defendant is a purchaser, with notice of whatever equities were in the plaintiff, Susan Webber, his Honor erred in dissolving the injunction.
The injunction must be continued to the hearing, when the parties will be put to their proof.
The interlocutory order is reversed, and the defendant must pay the costs of this Court. This opinion will be certified to the Court of Equity of Greene County.
Per curiam.
Decree accordingly.
Cited: Sc
