Barnes v. M'Clinton

The opinion of the court was delivered by Gibson, C. J. The first and second errors aro unsolid; and the question turns on the direction, which is the subject of the third. Questions of notice, the facts being loft to the jury, und'oubtedly belong to the court; and here, it would seem, there was no fact in dispute, the agency qf Mr. Fetterman not being contested, and it being taken for granted that the notice given by him had actually-reached the purchaser through his counsel; so that the question haa respect to its sufficiency. As to that, Mr. Fetterman testified that he had publicly read to the by-standers, and put up at the place pf sale, a written notice of the claim of Barnes’ heirs,’which, at his return to the spot after the sale was over, lie found had been removed. It is difficult to imagine what more, in the case of a public sale, can be done. But the point seems to stand clear of diflieulty, when viewed in connection with the admitted fact, that the purchaser had actual knowledge, through his counsel, of the contents of the paper; less than which would be sufficient to affect him, notice to counsel in the same transaction, being presumptive notice to the client. Nor would he be protected from an examination of the counsel, if that were necessary,, to show a communication of the notice, the fact not having been obtained from him, and of course not being a subject qf professional confidence. The objection, then, must lie, if at all, to the body of tiie notice which ought, it is said, to contain full, entire, and circumstantial information of every fact which it may be material for the purchaser to know. But such, I take it, is not the law. A purchaser at sheriff’s sale would seldom, bo affected, if error in the abstract of a title were to vitiate the notice. Mr. Fetterman spoke generally of the contents as being “notice of the claim,” the natural conclusion from which is, that every essential was comprised. But contain [70] ing less than an abstract, or thé particulars of the claim, the notice would still be available, if containing sufficient to put the purchaser on an inquiry leading to the whole truth; and this I take to be an 'elementary principle. If, indeed, no accessible source of information were known or pointed out, that might make a different ease. 'But Mr. Fetterman was-on the spot to answer all questions j and to disregard his warning, evinced wilful blindness, and a culpable determination tq brave the consequences: and under such circumstances, a purchaser ought not to be protected. Judgment reversed, and a venire de novo, awarded.