Lance v. Gorman

Opinion, Me. Justice Steeeett: This action of ejectment was brought by plaintiff and her husband, since deceased, to recover possession of the lot in controversy, in her own right. Both parties claimed under Jacob Newkirk, who by deed dated October 23, 1872, duly recorded, conveyed the lot to plaintiff’s husband, Joel C. Lance, for the consideration of $7,000. In 1874, Lance and wife by deed acknowledged and recorded' in August of that year, “ for — 207 — and in consideration of $100 and divers other good and sufficient considerations them thereto specially moving,” conveyed the same to David H. Klingerman, who, with his wife, thereupon, for the same consideration, by deed acknowledged and recorded on the same day,- conveyed the same property to Anna Lance, the plaintiff. Her contention was that the consideration paid to Newkirk was money of her separate estate ; that her husband was merely trustee for her of the legal title, and that the conveyance to Klingerman and by him to her was solely for the purpose of uniting in her the legal with the equitable title. In support of that position, evidence was introduced to show that in 1864, and subsequently, money of her separate estate, received from her father, was invested in the Boyer farm, and the deed therefor taken in her name; that about two years thereafter it was sold for $3,600, a portion of which at least was paid to her and afterwards invested in the Robertson and Beddel farm, which in turn was sold and with part of the proceeds the lot in controversy was acquired. The evidence as to these investments, re-investments etc. is quite voluminous; hut, without referring thereto in detail, it is sufficient to say that it tended to sustain plaintiff’s contention, and having been submitted to the jury under proper instructions, the result was a verdict in her favor. The only inference that can he drawn from the verdict is that the jury found plaintiff’s allegations of fact were true, viz., that the money of her separate estate, which had been several times invested and re-invested in real estate, was finally used in acquiring title to the lot in controversy from Jacob Newkirk in October, 1872, and that none of her husband’s money or property was employed in making the purchase. Exception was taken to the admission of some of the evidence above referred to, and to instructions of the court in submitting the same to the jury. If it becomes necessary to do.so, the specifications of error relating thereto will be considered hereafter. The contention of the defendant, Mary Gorman, is that in 1876 she became a bona fide purchaser, for value, of the lot in question at sheriff’s sale, without notice of any resulting trust in favor of plaintiff. In support of that position, evidence was introduced to prove that the real estate in controversy was levied on and sold on executions based on three judgments — 208 — against Joel C. Lance, two of which judgments in favor of C. M. Swayze, Nos. 28 and 29 of March Term 1873, were entered December 4, 1872, nearly two years before the conveyance of Lance and wife to Klingerman, and by him to Mrs. Lance, the plaintiff; that at said sale Mary Gorman purchased the property in controversy for $2,810, and the same was duly conveyed to her by the sheriff. Evidence was also introduced tending to prove that about the time of the conveyance of Lance and wife to Klingerman, and by him to Mrs. Lance, in 1874 and prior thereto, Lance was largely indebted and suits had already been brought against him, etc. When the two Swayze judgments, above referred to, were entered, the title to the real estate in controversy appeared by the record to be in Joel C. Lance, the defendant in said judgments. The other judgment in favor of Schrieber was obtained after the conveyance to Mrs. Lance. It follows from what has been said, as to the actual state of the record, etc., that if defendant’s purchase at sheriff’s sale in 1876 was without notice, actual or constructive, of Mrs. Lance’s equitable title, resulting from the use of her money in effecting the purchase from Newkirk, the defendant acquired a good title. The question of notice thus becomes a controlling factor in this case, and the burden of proving it devolved on the plaintiff. In other words, it was incumbent on her to establish two propositions: first, that she had an equitable estate in the property, resulting from the use of hex-own money in purchasing the same from Newkirk, anterior to the entry of either of the Swayze judgxxxents oix which it was afterwards sold as the property of her husband; second, that the purchaser at sheriff’s sale had notice of that equitable title or resulting trust whexi she bought the property: Fillman v. Divers, 31 Pa. 429. As already stated, the vex-dict in plaintiff’s favor necessax-ily implies an affirmative finding of the first proposition ; and, assuming, for argument sake, that there was no error leading to that result, was there axiy evidence to warrant the jux-y in also finding the second proposition affirmatively ? If there was not, the plaintiff failed to make out such a case as entitled her to a verdict, and defendant’s eighth poixxt for charge, viz., that “ under all the evidence in the case, the verdict must be for the defendants,” should have been affirmed. It is contended that the possession of the premises ixx dispute — 209 — by plaintiff’s tenants, at the time of the sheriff’s sale, was constructive notice to the defendant of the terms of their tenure, and also of the title of their lessor; that the defendant, in obedience to the maxim, caveat emptor, is presumed to have inquired and informed herself in regard to the condition of the title she was about to purchase. Conceding that inquiry thus became a duty, what would have been disclosed by a reasonable performance of that duty? Defendant would have learned that the parties in possession were plaintiff’s lessees, and that plaintiff claimed to own the property. An examination of the records would have disclosed the further fact, that the evidence and only record evidence of her title was the deed of Klingerman and wife recorded August 81,1874, more than a year and a half after the Swayze judgments, on which the property was about being sold, were entered, and further, that for nearly two years prior to the date of that conveyance the recorded title was in the name of plaintiff’s husband, Joel C. Lance. Neither the deed of Klingerman and wife, nor anything in the regular path of inquiry, would have disclosed a trust in plaintiff’s favor, resulting from her having furnished out of her own separate estate the consideration of the conveyance to her husband by Jacob Newkirk in 1872. On the contrary, all the inquiry that defendant was reasonably required to make would have resulted in showing that plaintiff’s title had its inception in the contemporaneous conveyances of herself and husband to Klingerman, and by the latter to her. The principles of law applicable to constructive notice, duty of inquiry, etc., are clearly stated in several of our cases, among which are Plumer v. Robertson, 6 S. & R. 179, 185; Woods v. Farmere, 7 W. 382, 386; Dickinson v. Beyer, 87 Pa. 274, 281; Fillman v. Divers, supra. In the former, it is said: “ Where a man is in possession, without making his title known, a prudent person would not purchase without making inquiry into that title; but, where he who is in possession, has placed upon record a title consistent with that possession, it may well be taken for granted that he holds under the recorded title; especially in this commonwealth, where every deed, or writing, affecting the title of lands, may be, and ought to be recorded.” In Woods v. Farmere, supra, it is said that a purchaser of land is not affected with constructive notice of anything which does — 210 — not lie within the course of his title, or is not connected with it; that possession is notice of the possessor’s title, but the registry by him of a particular title would restrict the generality of notice from possession. “ The tenant’s possession is notice of title in every form; the registry of a particular title is notice of that alone, and would be useless for any purpose but to restrict the generality of the notice from possession. It is therefore an indication that the occupant has narrowed his general to specific notice; and, were he not bound by it, he might with impunity do an act to mislead one who is presumed to have used every means of information accessible to him so far as the security of his title is concerned, but no further..... Though a judgment creditor be not a purchaser within the recording acts, a purchaser under his judgment has all the qualities of one, by relation, from the date of the lien ; and his title, being thus of record and contemporaneous with the judgment, is paramount to all conveyances or encumbrances subsequently attempted:” Woods v. Farmere, supra. The notice, “ To Purchasers and Bidders,” read at the sheriff’s sale, that the property therein described “ is not the property of Joel C. Lance, as whose property it is advertised, to be sold, but is the sole and separate property of Anna Lance, and any person buying the same at this sale will acquire no title,” is silent as to the fact, now relied on by the plaintiff, that her equitable title antedated the Swayze judgments on which the property was sold. That fact is not even suggested in the written notice, and, in the absence of anything tending to convey such information, the assertion in the notice that the property offered for sale “ is the sole and separate property of Anna Lance,” is referable alone to the deed of David II. Klingerman and wife to her, executed after the Swayze judgments were entered against her husband. As notice of the anterior resulting trust and equitable title in Mrs. Lance, the paper read at the sheriff’s sale was no more effective than the constructive notice arising from the possession of her tenants at tire time of the sheriff’s sale. They were both sufficient to put purchasers on inquiry; but, in either case, that inquiry would not necessarily lead to anything more than a knowledge of the Klingerman deed which she had put upon record as the origin of her title. — 211 — There appears to be nothing in the evidence to warrant the jury in finding that Mrs. Gorman purchased with either actual or constructive notice of a resulting trust in favor of Mrs. Lance, or that the latter had any interest whatever in the property in controversy, prior to the conveyance of Klingerman and wife in 1874. We are therefore of opinion that defendants’ eighth point for charge should have been affirmed, and the jury thereby instructed “ that under all the evidence in the case the verdict must be for the defendants.” This view of the case renders a consideration of other questions, presented by the specifications of error, unnecessary. Judgment reversed. Footnotes [1] See Anderson v. Brinser, 129 Pa. 376.