Ellison v. Torpin

English, Judge: Jacob Cline, Sr., was the owner of a tract of land situated in Logan County, Va., now in Mingo County, W. Va., which was supposed to contain five thousand acres, and was conveyed to him by one John Lawson. A portion of this tract was situated on Tug- river, just above the mouth of Grapevine creek, and was known as the “Old Home Place.’.’ The remainder of the boundary is situated on Grapevine creek and Tug river. In March, 1858, said Jacob Cline, Sr., made and published his last will and testament, which was probated and recorded in Logan County, Va., in 1858, by the seventh clause of which he gave to his sons, Perry and Jacob Cline, a tract of land in Logan county, on Tug river, bounded as follows, to wit: “Begin-. — 416 — ning at two maples about one-quarter of a mile above tlie moutR of Grapevine creek; thence out to the top of the riclge, to the river at the lower end of his land on said Tug river, including all the land he held on the river, with said lines up Grapevine creek; all he held on said creek, including below said lines, — to Perry and Jacob Cline in co-parcenary, to them and their heirs, forever.”- By the ninth clause of said will he gave to his son Perry Cline a tract of land on Tug river, in Logan County, Va., described as follows: “Beginning at two maples standing about one-quarter of a mile above the mouth of Grapevine creek; thence running up the river, including all the land he held on the river up to Jackson Mounts’ line to him and his heirs, forever.” In 1870 or 1871, Perry Cline traded all the lands devised to him by his father to one Anderson Hatfield for lands on the other side of Tug river, in Pike County, Ky., and said Hatfield, who had been cutting timber as a trespasser, and building cabins on said Grapevine creek, claiming some sort of title under a survey made by his father, left Grapevine creek, and moved to the old home place, where he lived until 1888, when he and his sons sold all the lands they had to the appellants, and moved away. In order to carry into effect this exchange of lands, said Cline and wife, on March 23, 1877, executed to said Anderson Hatfield a deed by which they conveyed all the lands willed to Perry Cline by his father, located on Tug river, in Logan county, including the home place and Perry Cline’s interest in the Grapevine lands. In 1879, Jacob Cline, Jr., died intestate, leaving two sons, to wit, P. A. Cline, Jr., and Wayne Cline, who were then infants. On January 30, 1888, Anderson Hatfield and his two sons and their wives conveyed to J. 1). Sergeant, who conveyed afterwards to the appellants, trustees, etc., five small boundaries of land, aggregating- one thousand five hundred acres, the description of which tracts of land in said deed concludes as follows: “All of the real estate herein conveyed being part of a five thousand acre survey conveyed from A. P. Cline to said Hatfield, Sr., by deed bearing date on the 23d day of March, 1877.” And when we refer to a copy of said last-named deed, which is made part of the record, it is perceived at once that by that deed P. A — 417 — Cline only conveyed to Anderson Hatfield, Sr., the lands which were willed to him by his father, Jacob Cline, Sr., which a reference to a copy of said will in the record shows includes a moiety of the lands on Grapevine creek belonging to said Jacob Cline, Sr., in his lifetime, showing a clear and manifest intention to embrace no more than the home place, and P. A. Cline’s undivided moiety of the Grapevine lands, in the deed of conveyance to said Sergeant. With the records of Logan county in this condition, and the land books showing that the land in controversy had been chai'ged, in the name of Jacob Cline’s heirs, with taxes as five thousand acres, until 1884, when two thous- and nine hundred acres, part thereof, composed of the home place and P. A. Cline’s half of the Grapevine lands, were charged to Anderson Hatfield under his deed from P. A. Cline of March, 1877, placed on record in 1882, the plaintiff, J. B. Ellison, went to Anderson Hatfield, Sr., in order that there might be no mistake, and asked him if he had ever bought Jacob Cline’s interest in the Grapevine lands, and was informed that he had not. Having thus been satisfied that the undivided moiety of the Grapevine lands yet belonged to the heirs at law of Jacob Cline, Jr., (who died in 1879 intestate, leaving two sons, P. A. Cline, Jr., and Wayne Cline), the appellee, J. B. Ellison, met the said P. A. Cline, Jr., and Wayne Cline, at their home in Kentucky, on December 6,1893, and purchased from them the undivided moiety of said Grapevine lands devised by Jacob, Sr., to their father, and paid them one hundred dollars each for their respective interests, taking- from them deeds and covenants of special warranty, which were joined in by their mother, and duly recorded. With the title of these heirs on record, said Ellison, on February 27, 1894, instituted this suit in the circuit court of Logan county against said trustees and others, claiming to be the owner of the Jacob Cline moiety of the Grapevine lands, and praying that the lands embraced in the seventh clause of the will of Jacob, Sr., might be partitioned, and one-half thereof assigned to him, and the other half to the defendants entitled thereto. On the 19th of June, 1894, said trustees filed their joint — 418 — and separate answer, admitting- that Jacob Cline, Jr., was in his lifetime the owner of a moiety of Grapevine lands under his father’s will, but denying- the legitimacy of said P. A. Cline, Jr., and Wayne Cline, who conveyed their interests to said Ellison, and attempting- to alleg-e a sale by Jacob Cline, Jr., of his moiety of said lands in his lifetime; which allegation was stricken out of the answer by the court for indefiniteness, as it failed to allege the terms of sale, the name of the purchaser, or whether the same was oral or in writing. The plaintiff replied generally to the modified answer, and depositions were taken establishing the fact that P. A. Cline, Jr., and Wayne Cline, the grantors of Ellison, were the lawful heirs of Jacob Cline, Jr., and on January 4, 1895, the trustees tendered and filed an amended answer, denying the plaintiff’s (Ellison’s) title to the Jacob Cline moiety of the Grapevine lands; and alleging, a new matter, a parol sale by Jacob and P. A. Cline of said lands in 1869, subsequently reduced to writing, exhibiting the title bond dated Aug-ust 24,1869, as such writing, the delivery of possession, and the payment of purchase money; and, by way of affirmative relief, prayed that the plaintiff, Ellison, be held as trustee holding the legal title for them, and that he be compelled by the court to convey the same to them. The plaintiff filed a special replication to this answer, denying- the parol sale and title bond alleged in said amended answer, and alleg-ed that the title bond, if genuine, was never recorded, and claiming that he was a purchaser for value, without notice of said title bond, and that the same was void as- to him, under section 5 of chapter 74 of the Code. Depositions were taken by both the plaintiff and defendants, and on August 3, 1895, a decree was rendered denying- the prayer pf the defendant trustees for affirmative relief, holding that the plaintiff, Ellison, was the owner in fee of the Jacob Cline moiety of the lands devised by the seventh clause of Jacob Cline, Sr.’s, will, and directing- a partition of the same between the plaintiff and the defendants; and from this decree the. trustees applied for and obtained this appeal. The appellants in their petition for appeal claim that the circuit court erred in refusing to remove this cause to the circuit court of the United States for West Virginia on — 419 — their application, they being citizens and residents of the state of Pennsylvania, and the plaintiff a citizen and resident of the state of West Virginia, and the controversy, as between them, related wholly to that part of the land claimed by appellants, and in which controversy the co-defendants had no interest; hence the controversy was separable, and should have been removed. This assignment, however, is not insisted upon by the appellants in their briefs, and no reason is assigned by them for sustaining the same, and, as we see no error in the action of the court in this respect, this assignment must be considered as waived and abandoned. The second assignment of error relied on by the appellants is that the court erred in its decree of August 3,1895, in adj udicating' that the plaintiff is the owner in fee of an undivided moiety of the land mentioned in the bill, and in decreeing a partition accordingly, and in refusing to compel the plaintiff to convey to appellants an undivided moiety of that part of said land claimed by them, in specific performance of the title bond set up in their answer. The controversy in this case is in regard to the ownership of the tract of land devised by the seventh clause of the will of Jacob Cline, Sr., to his sons, Perry and Jacob, known as the “Grapevine Tract.” This land is claimed by the appellants by virtue of a deed executed by P. A. Cline and wife to Anderson Hatfield, dated March 23, 1877, which deed described the property conveyed as “all the land that was willed to P. A. Cline by Jacob Cline, Sr., his father, said hind being and lying on Tug river, in Logan County, W. Va., containing 5,000 acres more or less;” and by a subsequent deed dated January 30, 1888, from Anderson Hatfield and wife and certain ones of his children to whom he had conveyed portions of said tract, which deed purports to convey several tracts of land, aggregating one thousand five hundred acres, and closes with the following general description : “All of the real estate herein conveyed being a part of a 5,000-acre survey conveyed from P. A. Cline to said Anderson Hatfield, Sr., by deed bearing date on the 23'd day of March, 1877.” Afterwards said Sergeant conveyed to the appellants, trustees. These deeds are their title to these lands from P. A. Cline, and they embrace no — 420 — more than P.’A. Cline’s undivided moiety in the Grapevine tract and the home place. It is claimed by counsel for the appellants that the ap-pellee, J. B. Ellison, was not an innocent purchaser of the moiety of the Grapevine lands willed to Jacob Cline, Jr., by his father, and that, if he did not have notice of the existence of the title bond exhibited with the amended answer of said trustees, he was put upon inquiry by the possession of Anderson Hatfield, and in consequence thereof he was chargeable with notice of the equitable title of Anderson Hatfield derived by virtue of said title bond. Now, suppose that the possession of said Anderson Hatfield, instead of being, as the evidence shows it was, by the erection of a cabin here and there to shelter his hands while logging, by no means exclusive or continuous, had been such as to put the plaintiff upon inquiry ; what more inquiry could he have made than he did before purchasing said moiety from P. A. Cline, Jr., and Wayne Cline? He says in his deposition (and it is uncontradicted), in answer to question 12 : “Did you ever have a conversation with Anderson Hatfield, Sr., about the Jacob Cline one-half of of the Grapevine lands; and, if so, what was it?” “I did. I asked him if he had ever bought Jacob Cline’s interest in the Grapevine lands, and he told me that he did not. This was before I bought the land. ” What more could he have done? He had gone to the man who, of all others, ought to have known whether he had bought the land or not, and he had been informed that he had not purchased it. See 16 Am. & Eng'. Enc. Law, 805, where the law upon this point is stated thus: “When a. purchaser has been put upon inquiry by the possession of a tenant, and upon making inquiry receives information as to the tenant’s claim, he may rely on such information, in the absence of anything to give notice of its falsity.” And, while I am discussing this queátion of notice, it may not be improper just here to call attention to the fact that the last will and testament of Jacob Cline was admitted to record in Logan county in April, 1858, and by reference to that the purchasers from P. A. Cline of the lands willed to him by his father could easily have seen that he only derived thereby a moiety of the Grapevine lands, the other half going to — 421 — Jacob Cline, Jr.; and yet the deed from P. A. Cline and wife to Anderson Hatfield, Sr., only conveys all the land that was willed to P. A. Cline by Jacob Cline, Sr., his father; and the deed from Anderson Hatfield, Sr., and his sons, to J. D. Sergeant, who afterwards conveyed to the trustees, describes the land thereby conveyed as part of a five thousand-acre survey conveyed from P. A. Cline to said Anderson Hatfield, Sr., by deed bearing date the 23d day of March, 1877, referring to said deed from P. A. Cline and wife to Anderson Hatfield, Si'., for description. It is true the appellants in their amended answer allege that prior to the 7th day of May, 1869, (the date of said title bond), said Jacob Cline and Perry A. Cline bargained and sold all the land devised to them jointly by their father to the defendant Anderson Hatfield, for the price of five hundred dollars, and that said Perry A. Cline and Jacob Cline, pursuant to and in part execution of said parol contract so made, delivered to said Anderson Hatfield the possession of said land so sold, and that said Hatfield in part execution of said contract received, and thereafter continued to hold, the possession so delivered till his subsequent sales thereof ; and they ask, by way of affirmative relief, that the appellee, J. B. Ellison, be declared a trustee holding the legal title to said moiety of land for the use of appellants, and that he be compelled to convey to them in specific performance and execution of the contract of purchase by Hatfield from Jacob Cline and Perry A. Cline, de-visees as aforesaid. Now, if there had been such a pai'ol contract between Anderson Hatfield, Sr., and Jacob and Perry A. Cline, as is claimed in such amended answer, we can but regard it as exceedingly remarkable that Anderson Hatfield should, on the 23d day of March, 1877, accept a deed from P. A. Cline and wife for the land that was willed to P. A. Cline by his father, which description would only include a moiety of the Grapevine lands, and that the entire consideration in the shape of a tract of land on Tug river, Pike County, Ky., should be paid to P. A. Cline ; and it is equally strange that the appellants, with the records before them, if they thought they were acquiring Jacob Cline, Jr.’s, interest, should have accepted a deed only for — 422 — P. A. Cline’s half thereof. It is difficult to perceive what right the appellants have shown by the record to demand a specific performance of the alleged contract between Anderson Hatfield, Sr., and Jacob Cline, Jr., whether said contract was by parol or in writing, even if the parol contract was proven beyond controversy, and there was no question in regard to the acts of part performance in pursuance thereof, and the due and proper execution of the title bond was established beyond controversy. I make this assertion because there is nothing in the record which shows, or attempts to show, a transfer from Anderson Hatfield, Sr., of Jacob Cline’s interest in the Grapevine lands, under his father’s will, to the appellants or any one for them. Anderson Hatfield does not appear to have asserted any such claim to the Jacob Cline interest himself, nor to have assigned or conveyed any such interest, directly or indirectly, to the appellants. The appellants have, however, seen proper to champion the cause of Anderson Hatfield, and assert his right to the Jacob Cline interest in said lands, and, as we have seen, claim that Hatfield had a parol contract with Jacob Cline for said moiety, and, in order to relieve said contract from the effect of the statute of frauds, claim that Hatfield took possession of the land in part performance of said parol, contract. Upon this question, Browne on the Statute of Frauds (section 476) thus states the law: “Fourthly, the possession must appear to have been delivered or assumed in pursuance of the contract alleged. And this is but a particular application of the general rule, heretofore noticed, that the acts relied on as part- performance must be such as would not ordinarily have been done unless a contract had been entered into between the parties.”’ Also in section 477, where it is said: “Thus it is abundantly settled that, if one who is already in possession of land as tenant verbally contract with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of part performance, within the meaning of the rule, so as to justify a lease according- to the contract. In such a case the continued holding is naturally and properly referable to the old tenancy, and — 423 — does not necessarily imply any new agreement between the parties. The same reasoning applies, of course, where the contract set up is the sale of the estate to the defendant by the owner in fee. Now, when we turn to the testimony upon.this point, it will be seen that the witness G. W. Taylor, in response to the eleventh question on cross-examination, when asked, ' ‘Under what claim of title did Anderson Platfield move on Grapevine creek and take possession?”answered: “Under the claim of his father, Ephraim Platfield, father of Anderson Hatfield, by a survey that he claimed that his father had made there on the creek.” And when, in the next question, witness was asked, “Was there any dispute or trouble between Hatfield and Jacob and Perry Cline?” he answered, “Yes, sir, there was; each party claimed it.” In answer to another question, said witness stated that Anderson Hatfield was in possession of said land in the year 1866. Joseph Simpkins, witness for appellants, also, in answer to question 4 on cross-examination, stated, when asked under what claim of title Anderson Platfield occupied Grapevine creek, that “in the year 1860 he went there under a title of his father, and then in the year 1867 he moved back there, and then in the year 1868, as near as I remember, he purchased the lands from P. A. and Jake Cline.” Thus, the testimony in the cause shows that said Hatfield did not go into possession of the Grapevine lands in pursuance of any parol contract with Jacob or Perry Cline. Upon this point Fry on Specific Performance (section 387) states the law thus: “To make the acts of part performance effective to take the agreement out of the statute of frauds, they must be such as cannot be referred to any other title than such an agreement as that alleged, nor have been done with any other view or design than to perform such an agreement.” Browne on the Statute of Frauds (section 454) says: “Another general rule in regard to the acts relied upon is that they must appear to have been done in pursuance of the contract alleged. To use the language of Uord Hardwicke, ‘It must be such an act done as appears to the court would not have been done except on account of the agreement,’” — citing Lacon v. — 424 — Mertins, 3 Atk. 3, 4; “or, as it is expressed by Sir William Grant, ‘It must be an act unequivocally referring- to and resulting from the agreement,’ ” — citing Frame v. Dawson, 14 Ves. 386, and numerous other authorities. It is, however, claimed that the possession of Anderson Hatfield, Sr., was sufficient to put the appellee upon inquiry. Conceding, however, that such was the case, as we have said before, he did make inquiry; and on going to Hatfield, who, of all men, would be supposed to know whether he had purchased Cline’s interest in the Grapevine lands, was informed by him that he had not, and from the deed he made to Sergeant he does not appear to have sold said interest. The defendants in their amended answer allege that Perry A. Cline on March 3, 1877, conveyed his interest in said lands to Anderson Hatfield, but that Jacob Cline departed this life before completing said contract by conveying his interest in said lands to Hatfield; that subsequently the land sold as aforesaid by Jacob and Perry Cline to Hatfield, by a succession of sales and conveyances from said Hatfield and his vendees, became and was vested in appellants as trustees. This statement is not supported by the record, for the reason that Perry Cline by his deed to Anderson Hatfield dated March 23, 1877, only conveyed the land that was willed to him by his father, and no other land than that was conveyed to Sergeant by Hatfield, and by Sergeant to the appellants. Now, from the paper purporting to be a title bond from Perry A. Cline and Jacob Cline to Anderson Hatfield, which was found by an agent of the appellants among the private papers of Anderson Hatfield tied up in an old shawl, more than twenty years after its date, it appears that at the time J. B. Ellison purchased the moiety of Jacob Cline in the Grapevine lands from his heirs at law the parol contract alleged and relied on in said amended answer had, for more than twenty years, been merged in the title bond witnessed by G. W. Taylor and Robert Mounts, which was susceptible of recordation, but-which, remaining unrecorded, was void as to the purchase made by said Ellison, under sections 4 and 5 of chapter 74 of the Code. Returning again to the question as to the effect of possession as notice to a purchaser, this Court has stated the — 425 — law in the case of Campbell v. Fetterman's Heirs, 20 W. Va., 398 (sixth point of syllabus): “A person in possession of real estate is sufficient notice to a purchaser, contracting- with a claimant of such real estate not in possession, to put him on the inquiry; and if he takes a conveyance from such claimant he will be charged in favor of the person so in possession with all the information such inquiry would have given him if diligently pursued.” This states correctly the general rule; but to this rule there are exceptions. Let us now revert to the fact that on March 23, 1877, P. A. Cline and wife conveyed to Anderson Hatfield his moiety of the Grapevine lands, which deed was recorded the 30th day of August, 1882, and that Anderson Hatfield and his sons conveyed a part of said land to J. D. Sergeant on the 30th day of January, 1888, which deed was recorded on the same day, and thus the status of the title was shown by the record on the 6th day of December, 1893, when J. B. Ellison purchased the Jacob Cline interest from P. A. Cline, Jr., and Wayne Cline. Now, it was held in the case of Smith v. Yule, 31 Cal. 180-183, that inquiry does not become a duty where the apparent possession is consistent with the title appearing of record. The subsequent purchaser cannot be said, in such case, to have either neglected or refused to make inquiry for a title not appearing of record, for none was suggested by the apparent possession, and, therefore, for his failure he cannot be adjudged guilty of fraud. Where the vendor is in apparent possession, the subsequent purchaser, finding the title of record in the vendor, is put upon no further inquiry, because the possession appears to be according to the title ; and if at the same time another person is also in possession there is no presumption of title in him inconsistent with that fraud in the vendor. In the case at bar, Hatfield, by recording- his deed of the 23d of March, 1877, gave notice to the world of the extent of his interest in the Grapevine lands, and thereby restricted the legal effect of possession as notice to purchasers to the interest in said lands described in his deed. See Eshbach v. Zimmerman, 9 Pa. St. 317, where it is held that notice of title given by possession is restricted by registry by the tenant of the evidence of any particular title to notice of that — 426 — title. Again, is the case of Woods v. Farmere, 7 Watts, 382, Chief Justice Gibson, delivering- the opinion of the court, said: “In Pennsylvania every written title maj^ be registered, and, where an occupant announces but one of his titles, he does an act which for its tendency to mislead ought to postpone the other. By exhibiting a conveyance to which, by his own showing, his possession may be referred, he does what he can to turn a purchaser from the direct path of inquiry. The party for whose protection registration is intended would be more misled by the use of it than if the occupant had pointed to his possession alone, as that would have led him to a particular examination of it; and when the occupant, therefore, points the attention of the public to a particular conveyance by the register he abandons every other index.” In support of this proposition, see Wade, Notice, §§ 297, 298. Anderson Hatfield by placing his deed from P. A. Cline and wife on record on August 30, 1882, gave notice to the world as to what portion of the Grapevine lands he claimed; and J. D. Sei-geant, by placing- on record the deed from Anderson Hatfield and his sons, dated January 30, 1888, g-ave notice that he only claimed thereby part of the land conveyed by P. A. Cline and wife to Anderson Hatfield by said deed of March 23, 1877; and neither of these deeds purported to convey the interest of Jacob Cline, Jr., in the Grapevine lands. Now, what entitles the appellants to specific performance of the contract contained in said title bond, be it ever so genuine? The appellants surely could be entitled to no other or further relief in that respect than their grantor, Hatfield, was entitled to, provided he had conveyed.or assigned to them his equitjr in the Jacob Cline moiety of the Grapevine land, which the record nowhere shows that he ever did; but, so far as the record discloses, all claim of said Jacob Cline moiety under said title bond was ignored and abandoned by said Hatfield, and he did not pretend to convey it to Sergeant. See, also, Kirby v. Tallmadge, 160 U. S. 387, (16 Sup. Ct. 352,) in which the court, after citing Atwood v. Bearss, 47 Mich. 72, (10 N. W. 112,) says: “Indeed, there can be no doubt whatever of the proposition-that where the land is o'ccupied by two persons, as, for instance, by husband and wife, and there — 427 — is a recorded title in one of them, such joint occupation is not notice of an unrecorded title in the other. In such case the purchaser finding- title in one would be thrown off his guard with respect to the title of the other. The rule is universal that, if the possession be consistent with the record title, it is no notice of an unrecorded title.” Now, this Court has held in the case of Clay v. Deskins, 36 W. Va., 350, (15 S. E. 85), that “a party seeking specific performance by a bill in equity must show himself to haye been ready, desirous prompt, and eager to perform the contract on his own part. The unreasonable delay of the purchaser which will prelude a decree for specific performance in his behalf is dependent upon the circumstances of the particular case, and if his conduct has indicated bad faith, or a virtual abandonment of the contract, it will deprive him of all just claim to equitable interposition. ” It is claimed by counsel for the appellants that the ap-pellee, J. B. Ellison, holding under a quitclaim deed from P. A. Cline, Jr., and Wayne Cline, cannot be regarded as a bona fide purchased for value. This question, however, is discussed in the opinion of Mr. Justice Field in the case of Moelle v. Sherwood, 148 U. S. 29, (13 Sup. Ct. 426), and in the opinion of Mr. Justice Brewer reported in 148 U. S. 45, (13 Sup. Ct. 458), in the case of U. S. v. California Land Co. In both of thése cases it is distinctly held that a purchaser holding under such a deed can be a bona fide purchaser for value. In order that the appellants should be entitled to a specific performance of the contract claimed to have been made between Anderson Hatfield, Jr., and Jacob Cline, they must first show that such a contract existed, and that they are entitled to the benefit of the same by assignment or otherwise; but neither of these conditions appears from the record to have been complied with. It is said by Fry, in his work on Specific Perfomnance (page 198, § 286), that “a contract to be specifically enforced by the court must be mutual; that is to say, such that it might at the time it was entered into have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity, the nature of the contract, or any other cause, the contract is incapable of being — 428 — enforced ag-ainst one party, that party is equally incapable of enforcing- it ag-ainst the other, though its execution in the latter way might in itself he free from the difficulty attending- its execution in the former;” and in the note it is said: “No rule in equity is more thoroughly settled than this,” — citing numerous authorities. “A party not bound by the agreement itself has no right to call upon a court of equity to enforce specific performance against the other contracting party, by expressing his willingness in his bill to perform his part of the engagement. His right to the aid of the court does not depend upon his subsequent offer to perform the contract on his part, but upon its original obligatory character. ” Pom. Spec. Perf. § 285, note, citing Duvall v. Myers, 2 Mid. Ch. 401, and Bo dine v. Glading, 31 Pa. St. 50. Now, this record contains no proof of the payment of the purchase money or any part of it by Anderson Hatfield to Jacob Cline for this tract of land, and we may search the record in vain for any right on the part of the said Jacob Cline, his heirs or assigns, to call upon the appellants for any portion of said purchase money. They certainly derived no such right from Hatfield, for the reason that it was his duty to have paid said purchase money, and he does not appear to have conveyed the Jacob Cline moiety of said lands to appellants, or- to have transferred any liability of his connected therewith to the appellants. Again, payment of the purchase money from Hatfield to Jacob Cline will not be presumed from lapse of time. See Showalter v. Hambrick, 25 S. E. 102, from the court of appeals of Virginia, where it is held that special performance of a contract to convey land brought by one that has been for thirty years in possession of the land under the contract will not be enforced where the evidence shows the consideration for the conveyance has never been paid. So, also, in the case of Logan v. McChord, 2 A. K, Marsh. 224, it is held that where the consideration is denied plaintiff must show payment before he can have specific performance. “Presumption of payment will not avail a plaintiff who seeks affirmative relief by specific performance of a contract for sale of land.” Brady v. Begun, 36 Barb. 533. See, also, Bennett v. Welsh, 25 Ind. 140; 18 — 429 — Am. & Eng. Enc. Law, 208; Morley v. Trust Co., 14 N. Y., 302. Specific performance will not be decreed against a bona fide grantee who has no actual notice of such outstanding equities, (Ferrier v. Buzick, 2 Iowa, 136; Bank v. Sharp, 6 How. 303); and in the case of Carter v. Allan, 21 Grat. 249, Christian, J., in delivering the opinion of the court, says: “It is sufficient to say that it has been the uniform course of decision in this state, as well as in the other states of the Union, to hold that the bona fide purchaser of a legal title is not affected by any latent equity founded on a trust, fraud or incumbrance or otherwise, of which he had not notice, actual or constructive. It is equally-well settled that the party seeking the aid of a court of equity for relief against a bona fide purchaser must allege and prove notice.” My conclusion, therefore, is that the. appellants have shown no right to the relief prayed for in their amended answer; that the appellee, J. B. Ellison, is entitled to the relief prayed for in his bill; and that there is no error in the decree complained of, and that the same should be affirmed, with costs and damages.