Weaver v. Craighead

Mr. Justice Trunkey delivered the .opinion of the court, "November 12th 1883. On May 1st 1876, upon the payment of $500, and the conveyance of forty acres of land, situated in Kansas, Weaver was bound by his covenant to convey the lot in controversy to Chamberlain, and give full possession. Soon after that date Chamberlain paid $250, and conveyed the forty acres to Weaver. Then, if Chamberlain’s testimony is true, by oral contract, he rented the lot to Weaver for $5 per month, until such time as he should build a house; no specified time; and Weaver extended the time for payment of the remaining $250 for an indefinite period. It was competent for the parties to so agree, and the verdict establishes that they did, for the present consideration. The court was bound to submit the testimony, no matter how flatly contradicted ; whether there was a contract, and what its terms were for the jury to determine. In equity to establish a claim that is denied, two witnesses, or the equivalent of two, are necessary ; but- this claim under the alleged lease is at law. The first, fifth, and sixth assignments are not sustained. For many purposes the possession of Weaver was the possession of Chamberlain. Taking a lease was an acknowledgment of the landlord’s right of possession. Chamberlain had the equitable title upon which he could have recovered posses-, sion in an ejectment, after tender or payment of all the purchase money that was due. Had Weaver not become his tenant, Chamberlain would probably have paid the balance and required possession. In violation of his written contract with Chamberlain, and of the oral lease, Weaver sold and conveyed the land in fee simple to Gaston. Now, he cannot restore possession if he would, for Gaston claims to be an innocent purchaser. There are no peculiar equities to except this case out of the general rule that a tenant is estopped from denying his landlord’s title. Had Weaver been honest and fair, and remained in position to convey and give possession on receipt of the purchase-money, it would be doubtful if his case would then be an exception to that rule; now, it is against equity that he should deny the plaintiff’s right to recover possession because they did not tender the purchase-money before bringing suit. He cannot complain of the matters set forth in the third, fourth, and seventh assignments. But one question remains that need be noticed, namely, the admission of testimony that Chamberlain’s interest in the property was advertised for sale in a newspaper and by handbills [294] without evidence that Gaston had knowledge thereof and submitting such testimony to the jury as “being some evidence upon the question of fraud and collusion.” That, we think, was error. It is well settled that such publication, unknown •to the party sought to be affected by it, does not amount- to notice. The publication was not made by either Weaver or Gaston, and was not of the res gestae of ftieir transaction. It was the act of Chamberlain’s assignee. If Gaston had knowledge of it he was not an innocent purchaser ; if he had no knowledge of it, how can it be evidence that he perpetrated a fraud? The law does not make a publication in the newspapers and by handbills either constructive notice to a purchaser, or evidence that he colluded with the vendor to defraud another person of his rights. If it did no purchaser would be safe. The defendant in error cites Walter v. Gernant, 13 Pa. St. 517, and Trefts v. King, 48 Id. 157, in support of the position that the testimony was admissible. Neither of these cases touch the admissibility of newspaper or other publications, and in each the testimony adduced to affect the purchaser with fraud was of words and acts by himself, in addition to the circumstances of the sale and purchase: in one the near relationship of the parties was also material. We are not convinced that the acts or declarations of a third person, though a claimant of the property, unknown to the purchaser, and unconnected with his negotiations with the vendor, are competent testimony as a makeweight in support of the allegation of fraud. The eighth, ninth, and tenth assignments are well taken, and the Judgment reversed, and venire facias de novo awarded.