Hottenstein v. Lerch

Mr. Justice Green delivered the opinion of the court, April 3d 1882. The plaintiffs derived title to the land in controversy by deed from M. C. L. Kline, dated November 29th 1880. Kline’s title was by a sheriff’s deed dated November 16th 1880. He was the owner of the apparent legal title for thirteen days, lie was never in possession of the premises. The land was actually occupied by other persons than the vendor, before, and at the time, the plaintiffs made their purchase and took their deed. The learned court below submitted to the jury the question whether there were circumstances connected with the transaction which made inquiry a duty on the part of the plaintiffs, and also the question whether Mrs. Lerch, one of the defendants, had such open and notorious possession of the premises, as amounted to constructive notice of her title. This action of the court is assigned for error, inter alia. The complaint is not so much concerning the statement of the rule in regard to constructive notice, as presented by the court, as it is to the application of it to the facts of the case. Or rather, the argument is, that the necessary facts to render the rule applicable do not exist. In order to consider the merits of the contention intelligently, it is necessary to determine with some care what the terms of the rule are. The language in which it is expressed has not varied from the earliest to the latest of the cases in which it has been announced. Thus in Jaques v. Weeks, 7 Watts 261, and in Maul v. Rider, 9 P. F. S. 167, it is stated in identical words: “ Whatever puts a party upon — 460 — inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, as in case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.” The rule is a broad and general oue, and includes other subjects than the unrecorded title to land. Even when that one subject is the occasion of a judicial controversy the rule has two well-defined and distinct branches. One of them relates to notice of an unrecorded title by information of its existence, communicated verbally. In this class of cases it is well settled that a party is not affected by a mere general rumor, and notice of such a rumor is neither actual nor implied notice of the existence of such a title. It is also held that the information must come from some person interested in the property and must be directly communicated to the party sought to be affected. All the cases assort this distinction. The other branch of the rule referred to, relates to the effect, as notice, of actual possession of the land in question by another than the grantor of the party to be affected. Such possession is the equivalent of notice, and therefore is notice, because it is inconsistent with the title conveyed to the purchaser, and because it is the duty of a purchaser to regard such a possession and inquire into its character. If the inquiry would result in knowledge of the requisite fact, the purchaser is bound by the, actual state of the title, whether he made the inquiry or not. Thus in Jaques v. Weeks, 7 Watts 276, Kennedy, J., in stating the rule, says : “Every purchaser of land, I take it as a general rule, must be presumed in equity to know whether the possession be vacant or not; and if a third person be in the actual and visible occupation of the land at the time of his purchase, it is sufficient to put him on inquiry, in order that lip may know by what tenure or right such person holds the possession ; and whatever is sufficient to put the party on inquiry is equivalent to notice in equity ” (citing several cases). Accordingly it was held in Daniels v. Davison, 16 Ves. 249; 17 Id. 433, that the possession of a tenant who had taken it under a lease for a term of years, and during the pendency of the lease made a contract with his lessor for the purchase of the reversion, was notice to a subsequent puchaser, the lease being still unexpired, not only of the tenant’s interest under it, but likewise of his equitable title to the estate, under his contract for the purchase of it. ... Sir Thomas Pdumer, Master of the Rolls, likewise in Meux v. Maltby, 1 Swanst. 277, said that it had been repeatedly decided that the purchaser of an estate in possession of a tenant was bound to inquire by what right and under what agreement the tenant held it. The doctrine of Daniels v. Davison, was recognized and enforced by this court in the case of Kerr v. Day, 2 Harr. 112. — 461 — On p. 117, Bell, J., says, “ Carnahan’s possession as the tenant of Cuddy, is attended with the same effect in imposing the duty of inquiry upon Day, the second purchaser, as though Cuddy himself had been in possession.” In Hood v. Fahnestock, 1 Barr, on p. 474, Rogers, J., said, “ Hood, the purchaser from Magill, knew, or, which in law is the same thing, ought to have known, that there was a tenant in possession of the estate he was about to purchase. He was bound to inform himself, as wo have seen, of the conditions of the lease ; and in doing so, he must have discovered, if he was before ignorant of the fact, that the person in possession held it as the tenant of Jacob Herrington, the man who, in conjunction with his brother, concocted the fraud. The pxu’chaser was bound to make inquiry ; and if this duty which the law throws upon him had been exercised with due diligence and proper discretion, can a doubt remain, it would have led to a knowledge of the important fact that Jacob Herrington was the landlord of the tenant in possession ?” It is clear, therefore, that the possession of a tenant is notice of his own title as tenant, and also of the title of the landlord under whom he holds, and that a purchaser is bound by the fact of such possession to make inquiry as to the state of the title, and is chargeable with notice of the actual condition of the title which such inquiry would have developed. In Sailor v. Hertzog, 4 Wh. 259, it was held that the law presumes that a purchaser of real estate will not trust merely to the title papers and records, but will inquire of the person in possession whether he claims title to the land. If the possession is distinct and unequivocal, it is sufficient to put the purchaser on inquiry, and amounts.to constructive notice. In illustration of the kind of possession which would be sufficient to charge a purchaser with notice, Judge Rogers, who tried the case at Nisi Prius, and whose rulings were approved by this court, referred in his charge to the jury to a case in which the possession was by the cultivation and cutting of willows, to use for making baskets, upon a piece of meadow ground. That ease, though not named by Judge Rogers, was Krider v. Lafferty, 1 Wh. 303. There the holder of the unrecorded title, claiming, against a purchaser at sheriff’s sale of the title of the apparent owner, one acre, part of a tract of twenty acres of meadow land, was held to have a good title by force of his possession alone operating as notice to the purchaser. On p. 318, Kennedy, J., who delivered the opinion of this court in the case of Sailor v. Hertzog, supra, said: “When Lafferty bought, it was meadow, and part of a larger tract of land owned by John Lentz at the time. Lafferty, it seems, was a basket-maker ; and immediately after his purchase, the ground being set apart — 462 — from that owned by Lentz, he took possession of it, planted it with willows for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it and cutting them every year at the proper season. This visible change in the appearance and occupation of the ground could not well fail to attract the notice of the neighborhood ; and hence it would seem that all the witnesses who had resided within the same for any length of time had become acquainted with Rafferty’s occupation of the ground. His position then, being sufficiently distinct to be notorious, was sufficient' to put Krider upon his inquiry as to the right under which Rafferty held the possession of the land, and being sufficient for that purpose was good notice in equity.” It will be observed that in this case the mere annual entry for the purpose of cutting willows upon a small part of a tract of meadow land, which tract was in the apparent ownership and actual possession of another, was a sufficiently notorious, visible and actual possession, to constitute notice of the title of the person exercising such acts of ownership, and" to charge a purchaser at sheriff’s sale, of the title of the apparent record owner, with notice. In the case of Green v. Drinker, 7 W. & S. 440, it was held that the possession of land such as will dispense with the necessity of recording the deed for it, must be such an occupancy as will afford a stranger to the title an opportunity of making the necessary inquiry for it. In Meehan v. Williams, 12 Wr. on-p. 241, we said : “ What makes inquiry a duty, is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell.” Applying these principles to the facts of the case at bar -it will not be difficult to determine the present contention. Kline was the purchaser at sheriff’s sale. He was entirely disabled from setting up any title acquired by that sale against Mrs. Lerch, because distinct notice of her title was given at the sale to all bidders and was heard by him. It is true the Hottensteins were not bound by that notice, but they were bound by whatever information they received from him, and by the actual possession of the land. Kline testified that he told Levi Hottenstein, whilst he was bargaining with him for the sale of the land, that it was sold at sheriff’s sale as the property of Nathan Lerch. Levi Hottenstein himself testified that he knew the land, that he liad often seen it, and last saw it about two months before he got the deed. He said also that it was good farming land and that he had been told by Jonas Wieand that it contained between nine and ten acres, and that he wanted it for a truck farm. He admits that he did not look up the title before he purchased, and he got no one to examine the title for him. — 463 — The other testimony showed that the laud in question had no ■ buildings on it, but adjoined another lot with a dwelling-house and barn on it, which Catharine Lerch owned in her own right,' having derived the same from her father’s estate. Nathan Lerch and his wife lived on this lot for many years. Mrs. Lerch was the owner of all the personal property on the premises, and the two lots were farmed together as one. It was testified that the whole was let to croppers who farmed it on shares. E. S. Ilockman testified that Reuben Lerch farmed it before 1879 and since 1879 Samuel Beil and Preston Lerch. He also testified that Mrs. Lerch got the share of the proceeds of the farm belonging to her, some of which was consumed, and some sold and the money for it paid to her. Mrs. Lerch testified that Reuben Lerch farmed the place for her and also her son Preston and Samuel Beil; that it was farmed on shares by them for her and that she received a share for seventeen years. We do not discover that this testimony was contradicted by any witnesses, and it would therefore seem that Mrs. Lerch was in possession of the whole property by her tenants at the time of and before the sheriff’s sale to Kline. The actual cultivation of the land as farm land every year was notice of its possession sufficient to put any purchaser upon inquiry. Such inquiry would have informed the purchaser of the persons who were in actual possession, and of the title by whieh they held it, and this would at once have developed the title of Catharine Lerch as lessor. There does not appear to be any testimony that Nathan Lerch ever leased the property to any one, or that he ever farmed it himself. It is claimed, that he was in possession because he and his wife lived together and were in the joint occupancy of the property. But in point of fact neither of them lived on the land in dispute, and the land they did live on was the actual, exclusive and notorious property of the wife. Although Nathan Lerch held the title in his own name to the nine-acre lot, his wife testified that she paid for it, and this -was probably the reason why she received the proceeds for so many years. Had Nathan Lerch farmed the land himself, or had- he leased it to croppers as his own, or had the land been entirely unoccupied, the legal inference would have been that the actual title corresponded with the title as it appeared of record, and Catharine Lerch’s claim under her deed of April 1st 1879 would have been nugatory as against these plaintiffs. But none of these facts appear in the testimony ; on the contrary, the evidence is all the other way, and hence it was the duty of the court to leave the caseto the jury, on the questions of possession, and of the existence of facts sufficient to put a prudent man upon inquiry. There were other facts in testi — 464 — mony tending strongly to prove that the plaintiffs did not desire to have information in regard to the title; but it is unnecessary to recur to them in detail, as they are not essential to the determination of the questions before us. There was no distinct evidence that the plaintiffs were directly informed of the existence of Mrs. Lerch’s title, or that their counsel acquired knowledge of it in their employment of him in connection with this transaction ; but there is an inference that they had knowledge of it in some mode, from the fact that they brought suit against Mrs. Lerch only a few days after the date of their deed. The learned judge of the court below was very careful and entirely correct in his statement of the rules of'law applicable to the case, and to the testimony. He distinctly told the jury that the only direct notice of Mrs. Lerch’s title which could affect the plaintiffs must come from Kline or the defendants, and if they could not find any such testimony in the case they could not find any such notice. He did not tell them there was any evidence from which they might infer such a notice. The whole of what the court said upon this subject must be considered, and not merely what was expressed in a selected portion of the charge, disconnected from the rest.. The same remarks are true of what was said in regard to knowledge of Mrs. Lerch’s title on the part of Mr. Rupp. The matter of the eleventh assignment is only a part of a sentence, the whole of which, when taken together, is a mere explanatory presentment of the subject in connection with the preceding, and subsequent, portions of the charge on the same topic. There is no error in the statement, or in the application of the rule of law. The words assigned for error are hypothetical and illustrative, and are not a committal of the question of fact to the jury. Further on in the charge, and in the same connection, the learned judge expressly told the jury that Mr. Kline stated, that in the interview between him and Mr. Rupp nothing was said which would amount to notice such as would make inquiry a duty. , The other assignments are met by what we have heretofore said in relation to the general subject of ¡notice, and they are not sustained. Judgment affirmed.