Bost v. . Setzer

Ashe, J. The only question which the record presents for the consideration of this court is — was Daniel Setzer, the defendant, by the deed he received from Jonathan Bost in 1867, a purchaser of the land in controversy for a fair price and without notice of the deed or claim of the plaintiffs? It was in evidence that the defendant paid for the land in controversy seven dollars and fifty cents per acre, and the jury found that that was a fair price; and the only inquiry then is — was the purchase without notice. The notice, to affect the title of a subsequent purchaser under the statute of 27 Elizabeth, is either actual or constructive. Actual notice is where a knowledge of the fact is brought directly home to the party ; and constructive notice is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not ever allow of its being controverted. 1 Story Eq. Juris., 399; 2 Sugden on Vendees, 320. A case in which the violent presumption of notice, or what is by some authors called legal notice, arises, is where one purchases land which he knows to be in the occupation of another than the vendor; and the- reason given is, because the fact of possession being notorious, it is sufficient to put the purchaser on his guard, and to induce him to in *191 quire into the title of the possessor. Lessee of Bellinger v. Welsh, 5 Binn., 53; Adams’ Eq., 158; Webber v. Taylor, 2 Jones Eq., 9. If for instance a person should, purchase an estate from the owner, knowing it to be in the possession of a tenant, he is bound to inquire into the estate which the tenant had, and has an implied notice of the nature of his title. 1 Story Eq. Juris., § 400. But to constitute constructive notice, the possession must be open, notorious, and exclusive, and existing at the time of the purchase. Edwards v. Thompson, 71 N. C., 177, and the cases above cited. In the case before us the possession had been abandoned by the plaintiffs and their parents, four or five years before the purchase by the defendant, and was not such a possession as to give, notice or put the defendant upon the inquiry. There was then no error in the refusal of His Honor to give the jury the instructions asked ; and those given by him, being sustained by the authorities cited, and the jury under them, having found that the defendant’s purchase was without notice and for a fair price, our conclusion is, there was no error, find the judgment of the superior court must be affirmed. No error. Affirmed.