Coskrey v. Smith

MoCLELLAN, C. J. The doctrine whereby a title .acquired upon foreclosure of a lien relates back to the inception of the lien so as to cut off intervening alienations has no application to grantees of the title before foreclosure upon valuable consideration and without notice. There was no occasion or opportunity for Smith, the plaintiff in this statutory real action, to formally propound his status as a purchaser of the legal title for value and without notice of the lien by replication or other pleading; but he brought himself and his title prima facie within the protection of that principle when he showed by uncontrovertible evidence that he was a purchaser for value of the legal title and that it ivas conveyed to him by the mortgages executed by W. T. Freeman, and also by the latter’s deed in satisfaction of the last mortgage. Upon the case thus made, the onus was on the defendants to show that he so purchased and paid value with notice of the lien in favor of W. T. Freeman’s vendor. This onus not having been discharged, no evidence tending to show such notice having been ■offered, Smith, the plaintiff, vas entitled to the affirmative charge given for him by the court. Affirmed.