Mulliken v. Graham

The opinion of the court was delivered, by Shakswood, J. — The learned judge below committed no error in admitting in evidence the memorandum of June 7th 1864, which forms the subject of the first assignment of error. When the plaintiff offered it, he was not called on to state the purpose for which it was introduced. If it was evidence for any purpose it was admissible. It clearly tended to prove the equitable title upon which the plaintiff claimed to recover. It was on its face an account of the sale of his interest in Ephrata to John W. Fredericks, and from it would be gathered that the premises in controversy— the Mount Vernon street house — was received as part of the consideration of that sale. Graham testified that it was drawn up by Williams, his book-keeper, as a memorandum of the contract be [490] tween Fredericks and himself, and after it was written it was read to Newcomer, Fredericks, his brother and himself. Williams, by his testimony, confirmed this statement. It is clear, then, that as independent evidence of the contract, as well as in corroboration of Graham’s testimony, the memorandum was admissible without regard to the question whether Mulliken had notice of it. It was not necessary that he should have notice or knowledge of that identical paper to make it evidence. Whether he was a bond, fide purchaser without notice of Graham’s equity was another and distinct question in the cause. The plaintiff had first to establish his equitable title, and then if Mulliken succeeded in showing himself to be a purchaser of the legal title for a valuable consideration paid, it would devolve upon him to give evidence of notice to Mulliken of his equity before he made the purchase or parted with his money or other valuable consideration. The second assignment of error is to the answer of the learned judge to the first point of the defendant below. Substantially the principle of the point submitted was affirmed, but more accurately in its application to the facts. There was no distinct evidence of an offer and refusal of the New Philadelphia lot. The plaintiff objected on that score, but what he did refuse as to his part of the contract was to surrender Newcomer’s notes, and the judge charged upon the point submitted with the correction in the application of the principle to the case in accordance with the point. The other assignments of error depend upon the solution of a single question, and it is frankly conceded that if there was any evidence in the cause to affect Mulliken with notice, actual or constructive, of Graham’s equity, there was no error in the answers or charge of which the plaintiff in error has any right to complain. This question is made to hinge mainly upon another, w'hether to affect the purchaser there must be actual notice by the holder of the equity, or some one for him, in the transaction which resulted in the purchase, or whether knowledge by the purchaser derived from any reliable source is sufficient. Certainly the vague reports of strangers, or information given by a person not interested, will not have the effect of notice to the purchaser; Kerns v. Swope, 2 Watts 75; Jaques v. Weeks, 7 Id. 261; Churcher v. Guernsey, 3 Wright 86 ; but information derived through parties interested and from a reliable source is different. Although a purchaser may disregard rumors set afloat by those who have no right to intermeddle, he is bound to attend to the admonitions of a party in interest: Ripple v. Ripple, 1 Rawle 390. Thus in Butcher v. Yocum, 11 P. F. Smith 168, notice from the grandfather of a minor was held sufficient, and the doctrine approved and applied in that case was, that it is not indispensable to the validity of notice of an equitable interest that it should come from [491] the party or his agent; it is sufficient if it be derived aliunde; provided it be of a character likely to gain credit. Now Newcomer testified that Mulliken was aware of the trouble about this property. Newcomer was prosecuted by Graham for the embezzlement of the cash received by him as Ms agent in the sale of Ephrata, and part of the consideration of that sale was the conveyance of the Mount Vernon street house to Graham. Mulliken was a witness at that trial. He was at the trial, said Newcomer, during the whole of it. Of course the matter of the contract was the subject of controversy. The memorandum of June 7th 1864, was read in evidence at that trial. Here was some, evidence that Mulliken knew, and that from a reliable source, that it was a part of the alleged contract that Graham was to have the property in question. But that is not all. Mulliken applied to Fitter to attend to the conveyancing on his behalf. Fitter knew all about it, and told Mulliken, for he himself testifies: “ I never knew that Charles Graham had any interest in it till I heard it at Fitter’s office. That was, that he had agreed to take it and afterwards refused, and Newcomer told me that was broken off.” But when informed by Mr. Fitter that there had been such a contract, was it prudent to rest satisfied with Newcomer’s declaration that it had been broken off? There was certainly enough in all this to have induced a careful man to inquire of Graham whether he had any claim or title before making the purchase. We think, therefore, that there was evidence in the case which justified the learned judge below in submitting the question of notice to Mulliken for the determination of the jury. This renders it unnecessary to consider how far the possession by Graham’s tenant operated to put Mulliken upon inquiry, so as at least to compel him to show that he had made application to the tenant on the ground to ascertain under whom and by what title he was in possession. No point as to this appears to have been made below, nor is it within any one of the assignments of error. Judgment affirmed.