Masich v. Shearer

B. F. SAFFOLD, J. — The appellee, being the owner of certain lands, by purchase from Thomas T. Bolling, his deed for which was made on the 7th of November, 1855, and- recorded January 9th, 1856, sold the same to Peter Horta, one of the appellants, in November, 1863, executing a conveyance therefor. This deed recited that its consideration was seven thousand dollars, payable in three equal instalments, two, four, and six months from its date. It was never recorded. On the 8th of November, 1866, Horta sold and conveyed to Francis Masich, by warranty deed, in consideration of $10,000, being a partial payment of an antecedent debt. Afterwards, on the 12th of November, 1866, Masich mortgaged the land to David Jackson, to secure the payment of $10,000, — alleged to have been borrowed. In December, 1868, Masich conveyed it to Jackson in satisfaction of the mortgage debt. These last conveyances were duly recorded. The appellee, Mrs. Shearer, filed the bill to enforce a vendor’s lien against the land for the payment of the last note, the first two having been paid. The chancellor decreed the relief sought. The point of the case is, whether the subsequent purchasers, Masich and Jackson, should be charged with constructive notice of the non-payment of the purchase money by Horta to Mrs. Shearer. Neither of them seems to have been actually apprised of Mrs. Shearer’s former ownership. Horta’s deed to Masich recites that the property had been conveyed by Gazzam to Bolling, and by the latter to Horta; while Jackson says he purchased on the faith of Horta’s deed to Masich. It is not clear from the testimony whether the consideration paid by Jackson was a present or past one. If the vendees of Horta had seen the deed to him from Mrs. Shearer, they would certainly have known that the purchase money had not been paid at its date. The law is, that where a deed is an essential link in the chain of title purchased, a presumption of notice of its contents is raised by legal construction, which cannot be overthrown by the strongest evi [229] dence that the deed never was in the possession of the purchaser, and that he had no actual notice or knowledge of its existence. Le Neve v. Le Neve, 2 Lead. Cases in Equity (Har. & Wal.), t. p. 152. “ Where a purchaser cannot make out a .title but by a deed which leads him to another fact, the purchaser shall not be' a purchaser without notice of that fact, but shall be presumed cognizant thereof; for it is crassa negligentia that he sought not after it. Moore v. Burnett, 2 Ch. Ca. 246. And it is immaterial whether the deed leads him to the knowledge of that fact by description of the parties in recital or otherwise. Bisco v. Banbury, 1 Ch. Ca. 287; Le Neve v. Le Neve, supra, m. p. 43. In Jones v. Smith (1 Hare’s R. 431), mainly relied on by the appellant, the purchaser was held free from blame for not inspecting a deed which would have disclosed the existence of the plaintiff’s equity, on the ground that his only reason for believing it to exist, or supposing it to be relevant and material, lay in the information given to him by the vendor, which had been coupled with a statement that the instrument related solely to another estate, and had no reference to that for which the parties were in treaty. Taking the allegation as a whole, it was said to show that the deed was irrelevant and immaterial. A failure to examine title papers, or to make a search of the records, is evidence of negligence. Le Neve v. Le Neve, supra; Dudley v. Witter, 46 Ala. 664. It results from these authorities, and many others which might be cited, that the appellants were properly charged with notice of the complainant’s equity. The sale of two acres of the land by the United States marshal is not insisted on as a defence in the argument for the appellants, and is not presented in a manner to be fully considered. It is not probable, however, that anything more than the delinquent’s interest in the property was attempted to be sold. The decree is affirmed.