Hatch v. Bigelow

Mr. Justice Beeese delivered the opinion of the Court: In December, 1856, Pomeroy, then being the owner of the lot in controversy, sold it to Lushbaugh and gave him a contract for a deed, which contract was not recorded. This lot was at the time inclosed in common with other lots in the same block, but there were no division fences. Immediately after the sale, Kerfoot, as agent of Lushbaugh, caused to be placed upon the premises, a board with this inscription: “ For sale by S. H. Kerfoot & Co., 48 Clark street,” which remained on the lot until after the rendition of the judgment under which the defendants in error derive title. Kerfoot also, as agent for Lushbaugh, caused to be laid down a sidewalk in front of the premises. In February, 1859, a deed was executed in pursuance of this contract to Posey as assignee of Lushbaugh. Under this contract and deed the plaintiff in error claims title as tenant of Posey. The defendants in error derive title from two judgments against Pomeroy in the United States Court, which became a lien on the 28th of September, 1857, a sale upon execution, and a deed from the marshal. Since the rendition of the judgment, Posey has erected a house upon the premises, and was in possession at the commencement of the suit. The question presented is, whether, at the time the lien of the judgment attached, there was upon the lot such indicia of ownership, visible to all the world, as to amount to constructive notice of Lushbaugh’s inchoate title. The courts of the various States have differed somewhat as to the degree of proof necessary to affect a party with constructive notice. In this court, it has been held that, whatever is sufficient to put the subsequent purchaser upon inquiry as to the rights of others, must be considered legal notice to him of those rights. Doyle v. Teas, 4 Scam. 250; Rupert v. Mark, 15 Ill. 542. This principle has been adopted whenever the question has arisen in subsequent cases; and, deeming it to be founded in justice and sound policy, we are not inclined to narrow it. The recording law places creditors on the same footing with subsequent purchasers. So far as meritorious considerations are concerned, the former are certainly not, for obvious reasons, entitled to any higher degree of favor than the latter. Would, then, a subsequent purchaser have been held, in this case, to be affected with notice ? The board erected was placed on the lot by Kerfoot, as the agent of Lushbaugh, after the purchase by the latter. It is, therefore, to be regarded as placed there by Lushbaugh, and as if it had referred persons desiring to purchase to himself. A purchaser is held affected with notice of all that is patent on an examination of the premises he is about to buy. Is not, then, this advertising board to be regarded in precisely the same light as if a subsequent purchaser had been informed in writing that Kerfoot claimed the right to sell the lot, and therefore claimed some title or interest in it ? And does not such notice put the purchaser npon inquiry as to that interest, whatever it may be, and whether held by Kerfoot, in his own right, or as agent of another ? A prudent man would have gone to Kerfoot, whose place of business is given, and ascertained the nature of his claim before completing a purchase. Surely this advertisement, posted upon the premises, and setting up a claim to them by offering to sell them, cannot be considered a notice less satisfactory than would be the inclosing of part of a tract of land, and the erection upon it of a stable, which was the case of Rupert v. Mark. But the case does not depend upon the advertisement alone. Lushbaugh had laid down a sidewalk. Without deciding that this of itself would be a sufficient possession to raise the presumption of notice, it is certainly a fact worthy to be considered in connection with the other marks of ownership. In these cases, notice does not generally arise from one circumstance alone, but from a collection of facts which, taken together, may be held sufficient to put a party npon inquiry. The ground covered by the sidewalk was a portion of the lot subject to an easement. In laying down the sidewalk, Lushbaugh was working upon his own premises. It is urged that sidewalks are constructed by order of the city. It does not appear that an order was made in this case. But it matters not. If made, it would have been against the owner of the lot, whoever he might be. The fact that Lushbaugh responded to such order does not leave him in a different position from that he would have occupied had he laid the walk upon his own motion. We think that the advertisement and laying the sidewalk were sufficient to put a subsequent purchaser upon inquiry, and they must have the same effect as against a subsequent judgment creditor. • The judgment is reversed. Judgment reversed.