Jackson ex dem. Bonnell v. Sharp

Per Curiam. To entitle the plaintiff to recover upon this case, two propositions must, be established; 1. That the deed from Bonnell to Goodyear was not void by reason of an adverse possession existing at the time; 2. That notice of that deed destroyed the effect of the prior registry of the deed from Bonnell to the defendant. ■ ' 1. When the patentee, Bonnell, executed his deed to Goodyear, the defendant was in possession, under a covenant from Stephen Thorn to the Fosters, to convey to them the premises, upon a [167] consideration to be paid. The Fosters entered upon the premises, without title, as one of them confessed, and he spoke to Grover, the agent of Thorn, to procure a title. When he first spoke to Grover, the latter did not say that Thom had any title ; but, about a year afterwards, Grover told him that Thorn had a deed from the soldier Bonnell. The defendant entered under an assignment of the covenant to the Fosters. Whatever pretence or colour of title the defendanthad, at the time of the execution of the deed to Goodyear, it was avowedly under Bonnell, the patentee. The original possession by the Fosters being without any pretence of title, was to be deemed the possession of Bonnell, the true owner; and I think it would be carrying the doctrine of adverse possession beyond the authorities, and beyond the truth of the case, to consider the covenant of Thorn, who said, or, what is the same thing, whose agent said, that he held under Bonnell, as amounting to an ouster of Bonnell, and an act in denial of, and in hostility to, his right. What kind of right or title Thorn pretended to have from Bonnell does not appear. His right might have been under a mere covenant or contract to convey, such as he afterwards made with the Fosters; and we have no ground to infer that he had any better pretension, when Bonnell conveyed to Goodyear, in September, 1807. It is a settled rule, that the doctrine of ad- • verse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favour of possession in subordination to the title of the true owner. It is not unusual for persons to contract to convey at a future day, in expectation of a capacity to convey by the given day, though they have no title at the time of the contract. The Fosters were originally in possession, in judgment of law, under Bonnell; and they never meant to change that character, and to oust Bonnell, by taking the covenant from Thorn. They took it, undoubtedly, under the impression that Thom then was, or would thereafter be, authorized to convey the title of Bonnell; and the defendant, as the assignee of the Fosters, must be deemed to have succeeded to the possession under the same impression. Thorn was never in possession, and, of course, there was no adverse possession to be imputed to him. Fosters and the defendant held possession, without setting up any adverse title, and under a contract for a title to be derived from Bonnell. To consider [168] Bonnell as thereby disseised or dispossessed of his freehold, and have lost his capacity to convey the land, is inadmissible. Adverse possession, so as to defeat the conveyance of the true owner must be made out, clearly and positively; and so the court said in the case of Wickham v. Concklin, (8 Johns. Rep. 220.) 2. The next question is, whether this deed was superseded by the subsequent deed from Bonnell to the defendant, of September, 1808, and which was first recorded. There is no doubt that if a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered deed, it is the same to him as if it had been registered. It is not a secret conveyance by which he can be prejudiced or defrauded; and if he purchases with knowledge of such prior deed, and with the expectation of getting his deed first registered, he does an act against good conscience, and in abuse of the statute, which was made to prevent, and not to protect, fraud. It is, therefore, a well settled principle, that such notice supplies the place of a prior registry, and the only question here is, whether the defendant is chargeable with such notice. In July, 1808, and about three months before the defendant’s deed, Johú Haring went, as an agent for the defendant and the other occupants of the lot, to purchase the lot of Bonnell. Bonnell refused to sell, and told him that he had abeady conveyed the lot to Goodyear, one of the lessors of the plaintiff. Here, then, was a direct and positive notice to the agent of the defendant. Haring communicated this fact to Joseph Grover, who, in September following, went, as agent for the defendant, and the other occupants, to purchase, and succeeded in his mission. It is to be inferred that Grover was the agent also of the defendant, and, as such, made the purchase, because he had before acted as agent for Thorn, in selling the lot, and because he applied to Gould to go to the patentee and make the purchase, and, lastly, because we find him in Virginia at the time of the purchase, and a witness to the execution of- the deed. No doubt he was the agent who made the purchase, and from whom the deed was afterwards received. Here we have then notice of the prior deed given to two successive agents of the defendant, and both employed for the very purpose of making the purchase. The notice in each case was direct and positive, and given prior to the purchase. Can we possibly doubt, after this, whether the knowledge of the prior [169] deed was communicated from these agents to their principal, and especially by the first agent, whose object was defeated, in consequence of the very fact of the prior deed? The defendant confessed, in 1810, that "he never believed in his former title." But we need not bring home the notice to the defendant, for it is a well settled rule, that notice to the agent is notice to his principal. This has been frequently so ruled, in respect to the very question , of a prior unregistered deed, and in respect to the agent employed to effect the purchase. (Le Neve v. Le Neve, 3 Aik. 646. 1 Ves. 64. Amb. 436. S. C. Lord Forbes v. Deniston, and other cases therein cited, 13 Vesey, 120.) We are, accordingly, of opinion, that the plaintiff is entitled to judgment.