Lodge v. Simonton

G-ibsou, C. J. Decisions on the effect of defectively registered conveyances, deposit of title papers, and most of the others that have been adduced, shed but little light on the subject before us, which belongs to another branch of the law of constructive notice. The only apposite rule in the books is, That a purchaser shall be affected whenever there was enough to lead a vigilant mind to a knowledge of the truth; and consequently, that he should be presumed to have known every thing of which any part of his title afforded an intimation; for not to follow the truth, when put upon the scent of it, is undoubtedly gross negligence. And this I take to be the rule in Pennsylvania, as well as elsewhere; for that a loss incurred from ignorance, shall be borne by .him who had reason to suspect, and yet refused to investigate, rather than by one who is chargeable with no want of vigilance whatever, is consistent, not only with precedent, but the immutable principles of reason and justice. Nothing can be more vague and imperfect than the information afforded by the equivocal fact of possession; yet it is held, that the naked possession of one who has purchased the estate, even though he entered as a tenant, is constructive notice of his equitable title as a purchaser. Sugd. Vend., 744. Why should the rule be different in regard to circumstances that serve to identify the subject-matter of the conveyance? If it is meant to be asserted in — 449 — the opinion just delivered, that no description may be sufficient to point the attention of a subsequent purchaser, but such as, if used in a warrant, would dispense with a survey, or, as it is said, make the warrant locate itself, I have only to say that the doctrine is new to me. Very different was the notion of Chancellor Kent in Green v. Slayter, 4 Johns. Ch. 45, 46, who, so far from requiring absolute, or even convenient certainty, charged a purchaser, on the principle of lis pendens, with constructive notice of the trust, where the property was described in a bill in equity, as “divers lands in Crosby’s manor;” a description certainly much less specific than the one in the codicil before us. The argument there, was as it is here, that there was nothing in the description which pointed directly to the land. “It is true,” replied the Chancellor, that there might have been divers lands in Crosby’s manor, held in trust by Winter, (the vendor,) and yet the lots he sold to the defendant have been held by him in his own absolute right. But though this was possible, it was an improbable fact; and if ever a bill contained sufficient matter to have put a party on inquiry, the bill of 1809 answered that purpose. The doctrine of Us pendens is indispen-sible to right and justice in the eases, and under the limitation's, in which it has been applied; and according to the observation of Lord Manners, we must not suffer the rule to he frittered away by exceptions. Was it too much to have required of a purchaser charged with notice of all the facts in the bill of 1809, to have called on Winter to disclose the source of his title? The general rule of this court is, that whatever is sufficient to put the party on an inquiry, is good notice in equity. Lord HardwicJee in Smith v. Low, 1 Atk., 489. The least inquiry, even of Winter himself, would have satisfied the purchaser that'the lots he purchased, were parcel of the trust lands mentioned in the bill. ” Was not the necessity of such an inquiry equally obvious and equally imperative in the ease before us? I am relieved from the task of weighing the authority of Chancellor Kent in the preceding case, against that of the court in Lewis v. Madisons, 1 Munf., 303, as there is no essential discrepance between the two cases. In the latter, the contract had not only no apparent, but no actual connection with the land in dispute; and the generality of the expressions used in regard to it, is'to be qualified by the consideration that they were predicated in relation to the particular circumstances off the case. The description was of “land willed” to the partjr contracting, when in fact no land had been willed to him, so that an inquiry by a purchaser would have led to nothing, even had the words embraced, as some of the judges seemed to think they did, land expected to be willed to him; and a majority put the ease expressly, on the ground that an inquiry would have been fruitless. How different in that respect is the — 450 — ease at bar. A glance at its circumstances will show that an appli • cation of the warrant to any other than the tract in dispute, was, in the words of Chancellor Kent, if possible, a very improbable fact. It was more — it was absolutely impossible. The defendants are compelled to resort to Hunter’s will. If they discard that, they disclaim his title; for it was determined, when the cause was here before, and on ground not to be shaken, that the persons from whom Simonton purchased, had not the land by descent, but as residuary devisees. Simonton was therefore bound to inspect the codicil with the will; and what does it contain? It contains an explicit declaration that “the plantation and tract of land, in Turbut loiunship, NEAR to Me. Hewitts, was the joint property of himself and Lodge.” Now I should suppose it enough to put a purchaser on an inquiry, that the land is described to be in a particular township, and near a particular occupant, though it be not specified whether it be near him on the north, the south, the east, or the west; and even though the party had other lands in the same township, that equally answered the description, which, however, it will be shown, was not the case here. It is precisely in such a case that an inquiry into particulars not before mentioned, becomes proper to remove the possibility of misapprehension by distinguishing with perfect certainty the subject-matter of the contract. Hut it is a most important, and, as it appears to me, a decisive feature of the case, that this was, not merely the only tract which actually adjoined Hewitt, but, as I have already intimated, the only one owned or possessed by the testator at the date of the codicil, which answered the description in any one point or particular; for the other three tracts, in the names of Hunter, Spejicer and Popjay, had been sold by him years before, and it would have been impossible for any purchaser, let the peculiarity of his apprehension or power of combination be what it may, to imagine that the testator was speaking of any of them, when he was directing the particular tract to be sold by his executors. Whatever ambiguity there might have been in the declaration of the testator, if made in relation to the state of things that originally existed, or if he had continued to hold all the tracts, there is none at all, when it is considered that he had but one tract at the time to which it could bo applied, and that he does not appear to have had another inch of land within the township. That this is the tract in dispute, is not controverted, for it is agreed that he had no other at the date of the codicil, to which it could be applied. He and Lodge had surveyed 1200 acres on three locations, of 300 acres each, in the names of Hunter, Spencer and Popjay, which had been occasionally shifted from tract to tract, in order to cover the whole, and protect the excess, beyond what they could lawfully hold on these rights, from — 451 — appropriation by other applicants. The unfairness of this manage * ment, has a tendency to prejudice the judgment against the plaintiff’s right; and it is therefore not surprising that the defendants have had the benefit of considerations that could be legitimately urged only in favor of a title adverse to that of Hunter and Lodge. But however fraudulent their conduct may have been in relation to the public, it must be obvious that it affords no ground of defence in an action between themselves, or persons standing in their respective places; and it is to be held in remembrance that the very question here is, whether Simonton is not to be treated as standing in Hunter’s place. The shifting of these locations, then, is to be treated as inoperative, further than that as it may have served to enable Hunter’s devisees to conceal Lodge’s right. The Gailey warrant was at last procured to cover the residue of the land, but surveyed on what is called the Hunter tract, which is not the one in dispute; and hence the point of defence made at the bar; that Hunter’s admission of Lodge’s rig-lit, being made in reference to a title by warrant, may possibly have been understood by Simon-ton, as predicated of the tract originally surveyed on the Gailey warrant: in other words, that as the codicil referred to a warrant originally laid on a tract appropriated to the Hunter location, the admission may have been understood as made in reference to that tract. To say nothing, at present, of the undisputed fact that this tract had been sold by the testator himself, perhaps some ten years before, to the corporation, for the relief of poor and distressed Presbyterian clergymen, I shall, for the sake of the argument, admit the possibility of such a misapprehension, and then ask whether it could be founded on facts and circumstances so unambiguous and leading to it so irresistibly, as to have silenced all suggestions of the propriety of further examination. In the first place, the misapprehension must have Been founded on the gratuitous assumption that the Gailey warrant was particularly alluded to. No expression in the codicil authorizes such a conclusion; yet it is the foundation of the hypothesis. The clause is in these words: “And I do further order and direct, that the plantation and tract of land in Turbut township, near Mr. Hewitt’s, taken up by Mr. Lodge and myself, be sold by my executors; and the sum of ¿624.15, paid by me for warranting the said tract,-is to be refunded or paid by Mr. Lodge, before he can or may be entitled to any share or purpart thereof.” It will be perceived that the argument is, that Simon-ton may have taken the admission of Lodge’s title to refer to the Gailey warrant, and through it, to the Hunter tract on which it had been laid. A sufficient answer might be found in the fact that the other parts of the description are altogether inconsistent with that supposition, as that tract was the very furthermost one from Hewitt, — 452 — instead of being near him. But there is nothing in the clause to indicate the Gailey warrant in particular, the description being not of a warrant, but a tract of land designated by its situation in regard to a particular owner, the species of the title being mentioned incidentally, and for a different purpose. There was no pretext, then, for an assumption that a tract was meant different from that which was otherwise described. But granting that Simonton may have had reason to suspect, what happens to be true in fact, that the Gai-ley warrant was actually meant, yet the supposed cause of his imputed misapprehensions as to the particular tract to which it was applicable, depended entirely on extrinsic circumstances; and if these may enter into the case to give color to the existence of a mistake, they are proper to be used in order to repel it. Now if Simonton had known of the application of the warrant to the Hunter tract, previous to the date of the codicil, it is reasonable to presume he knew, not only that the Hicnier tract, but all the others, had been sold by the testator in his life-time; for the argument supposes that he was acquainted with the management of these lands, and consistently with that, he could not have been ignorant of the fact that both the Gailey warrant and the testator’s admission of Lodge’s title, were inapplicable to any other tract than the only one of which he retained the title, because he was directing the tract of which it was predicated to be sold. The possibility of his being-ignorant of the previous sales by the testator, will not help him. Instead of acting on imperfect information, when better might have been had, is it too much to require him, in the language of Chancellor Kent, to have called on the vendors to disclose the source of their title? Purchasing under a will that recognized the existence of a trust estate which might as described, exist in the land he was treating for, and this without*inquiry pr examination, he ought, it seems to me, to be taken to have acted on his own responsibility. But there is enough in the case to demonstrate that the vendors actually did put him in possession of the origin of their title; the proof of which lies in the undoubted fact that he purchased the Gailey ivarrunt along with the land, as its appropriate and only title. What other title had the vendors to exhibit? The Hunter location had been sold by the testator, as already remarked, to the corpoi’tion, for the relief of Presbyterian clergymen, and the Popjay location had been sold by him and Lodge to Dough-erty; added to which, the Spencer location had been given to Wilson, and conveyed by him in 1790 to Simonton himself, who, if he did not get the Gailey warrant, as the title of his purchase in 1810, consented to pay for the land in dispute, without any title at all — an instance of negligence too improbable to be credited, or, if credited,‘too gross to entitle him to indulgence. But it was not — 453 — pretended at the trial that he got any other title. On the contrary, it was exhibited as the foundation of his patent, and the origin of his right. It is immaterial, then, what may have been his previous misconceptions of the locality of the Gailey tract, as he could .not believe when he paid the purchase money and received the conveyance, that the admission of an interest in the Gailey warrant, related to any other tract than the ohe to be held by the warrant. If he had ever entertained doubts of it, in consequence of a knowledge, that it had once been applied to a different tract, they were susceptible of an easy solution by information, that its destination had been changed, as was perfectly competent to the owners of it, before survey returned. And we are to suppose, that he actually had this information, and was satisfied with it; or that if he had it not, the want of it is imputable to his own carelessness. The matter, then, is reduced to a simple dilemma. If the admission of Lodge’s title is referrible to the particular tract; Simonton, who purchased it under the will, is to be affected with notice of it. But if it is referrible to the Gailey warrant, then being a purchaser of the Gailey warrant also, under the will, he is equally to be affected. If it is referrible both to the specific tract and the warrant, he is surely to be affected as he is a purchaser of both. In conclusion, it remains for me to express a dissent, as to the existence of a fact in the case as stated by the judge, who delivered the opinion of the court. It is assumed, as having been proved, that Hunter was authorized by Lodge, to sell his equity along with the legal title. If that were so,' the plaintiff would be postponed on a ground very different from the want of notice. But of the fact, there was no other proof than what may be thought to arise by inference from Hunter’s direction to his executors to sell, for he has no vriiere said that Lodge gave him authority; He doubtless supposed he could make title without any particular authority as he had the legal estate. But a very different view of the Codicil, was taken when the cause was here before, the judgment of the court below, having been reversed for misdirection in charging that the plaintiff’s were entitled to the proceeds of the land, but not the land itself. It seems to me, too, the very point mooted now, was ruled then, it having been determined that the codicil was constructive notice of the trust, and that all which remained to be decided, was a question of fact, whether the description in the codicil were actually applicable to this particular tract ■ — a matter that never was disputed, nor could it be, for the Gailey warrant and the land in controversy were the only title, and the only tract that remained subject to the testator’s power. With an unfeigned respect, then, for the judgment of my brethren, I may — 454 — be allowed to say, that I retain an unshaken confidence in the opin • ion 1 delivered to the jury. Judgment reversed and anew trial awarded.