Coari v. Olsen

Mr. Justice Scholfield delivered the opinion of the Court: The most important questions presented by this record are of fact. They are, first, was the contract between Wakeley and Olsen, for the reconveyance of the property, actually made, as it purports to have been, on the 28th of November, 1874, or was it made subsequent to the conveyance by Wakeley to Coari, and ante-dated. Second, if that contract was, in fact, made on the 28th of November, 1874, is Olsen estopped from claiming under it, as against Coari. The evidence is somewhat voluminous, and, on most points, directly contradictory; and, since it can subserve no useful purpose to reproduce it here, in detail, we shall only state our conclusions thereon,—premising that the witnesses were here examined orally, before the chancellor, and that he had, hence, the same facilities for forming an opinion of the relative merit and weight of the testimony given by the several witnesses, as has a jury in trials at law; and that there is, therefore, the same necessity that exists on a trial by jury, that the error in finding as to fact shall be clear and palpable to authorize a reversal. We are not clearly satisfied, then, that the finding of the court upon either question of fact was palpably unauthorized by the evidence. The evidence of Wakeley, for reasons sufficiently disclosed by the record, might well be regarded as shedding no reliable light upon the transaction, and, throwing it out of the case, there is but little to impeach the bona fides of the date (Nov. 28, 1874,) as the actual date of the contract for reconveyance. The date of the receipt for rent given by Olsen to Wakeley, read in the light of Olsen’s explanation, (that it was signed by him in ignorance of its contents, and without any design to evidence a state of facts inconsistent with his repurchase of the property on the 28th of November, 1874,) is of no significance as a contradiction of the date of the contract of reconveyance. With regard to the circumstances urged as estopping Olsen from claiming, as against Coari, under the contract of the 28th of November, 1874, we deem it sufficient to say, that we are not clearly satisfied the court below ought to have disbelieved Olsen and his witnesses, and have given implicit credence to the testimony to the contrary, on behalf of Coari. If Olsen speaks the truth, he made no assertion and did no act which should have misled Coari, before his purchase, as to the ownership of the property. Coari’s admission that when speaking to Olsen in regard to the property, he withheld from him all knowledge that he desired information with a view to becoming a purchaser of the property, and falsely represented that he desired to rent it, might well be regarded as strongly tending to support Olsen. It would, to say the least, be verging upon doubtful ground to say that - a party shall be estopped from asserting his title to real estate because of declarations in regard to the title, obtained from him by cunning and falsehood. Aside from this, however, the circumstance that Coari admits that he did not openly and frankly inquire in regard to the property as one seeking a knowledge of the property and its title with a view to purchase, tends to confirm Olsen that the ownership of the property was not made the subject of consideration,—at least in such a way that he should have anticipated importance could be attached to his remarks. The testimony of Longnetti and Costa, contradicted as it is by Olsen and his son, can not be regarded as of controlling importance, in any aspect of the case. Their mission seems to have been chiefly to hear something to testify to that would make in favor of Coari and against Olsen. Olsen was under no obligation to explain to them, with legal accuracy, the nature of his title, and, as they were of different nationalities, it is quite probable that either through his inability to express himself with sufficient clearness, or their inability to precisely comprehend his language had he attempted an explanation of his title, it would not have been attended with success. The only thing that may be said to be entirely free from doubt in regard to the interview between these witnesses^ and Olsen is, they gave him a paper notifying him to quit the premises, Avhich he refused to touch, and that he claimed the right to remain in possession. There is no pretense for basing an estoppel upon anything that then occurred, and what was said by Olsen is not free enough from doubt to make it of much weight as a contradiction of the date of the contract for reconveyance. The only question of laAV is (the contract for reconveyance not being placed upon record), was Olsen’s possession, at the date of Coari’s purchase, sufficient notice to put Coari upon inquiry as to Olsen’s rights. Olsen was in possession of the third floor of the house, as tenant to Wakeley, when the contract for reconveyance was made, on the 28 th of November, 1874. The second floor was then vacant, and the first floor was occupied by a tenant to Wakeley, whose term did not expire until after Coari purchased. We think it may be regarded as a reasonable conclusion, from the evidence, that immediately after the contract for reconAreyance (at all events before Coari purchased), Olsen was in the possession of the second and third floors of the house, claiming as owner, his own family occupying the third .floor, and that of his son-in-law, Heinz, Avho claimed under him as landlord, the second floor. It does not appear that there was any change in the first floor, but, as Coari makes no claim to having acted upon the faith of the declarations or possession of that tenant, Ave do not regard this of any moment. Appellant makes the point, upon these facts, that the possession of Olsen, after the contract of reconveyance was made, was no notice that he thereafter claimed rights as purchaser, but that the public were still to regard it as under his former tenancy,—in other words, that his possession was simply notice of the title or claim under which he first entered or held possession. This position, if tenable, could hardly help appellant, since Olsen’s possession of the third floor first commenced while he was the unquestioned owner of the property, and -was continued when he conveyed to Wakeley, and until after the contract was made by Wakeley for neconveyance; and the only change, at any time, was by contract recognizing Wakeley as owner, just as it was, afterwards, by contract recognizing Olsen as owner. , But, although other courts have held the doctrine of notice by possession as subject to being materially modified by circumstances, this court has uniformly held that actual occupancy is equal to the record of the deed or other instrument under which the occupant claims, and a purchaser is bound to inquire by what right or title he holds. The purchaser takes the premises subject to that title or interest, whatever it may be. Dyer v. Martin, 4 Scam. 147; Brown v. Gaffney, 28 Ill. 150; Doyle v. Teas, 4 Scam. 202; Williams v. Brown et al. 14 Ill. 201; Davis v. Hopkins, 15 id. 519; Prettyman v. Wilkey, 19 id. 241; Truesdale v. Ford, 37 id. 210; Lumbard v. Abbey, 73 id. 178; Whittaker v. Miller, 83 id. 386; Strong et al. v. Shea, id. 575. So far, at least, as the facts of the present case are concerned, we adhere to the common law rule, that where a tenant changes his character by agreeing to purchase, his possession amounts to notice of his equitable title as purchaser. 2 Sugden on Vendors, (8th Am. ed.) 343, § 24; Daniels v. Davidson, 16 Vesey, (1st Am. ed.) 249; Chesterman v. Gardner, 5 Johns. Ch. 32. The seeming contradiction in the decree sustaining Creseio’s mortgage, whilst denying a title in Coari that would seem essential to the making of that mortgage, is not complained of. The court based that part of its decree solely upon the clause in the agreement of reconveyance by which Wakeley reserved the right, at his election, to place an incumbrance of $800 on the property, treating the Crescio mortgage as such an incumbrance, so Olsen, in discharging it, will be but paying that much of what his contract of reconveyance requires him to pay. On the whole, although not so clearly satisfied with the conclusions of the court below as to the facts as we could wish to be, we can not perceive any satisfactory reasons for reversing the decree on its merits. There is, however, a technical error in the decree in requiring Coari to convey to Olsen. All that Olsen is entitled to, as respects Coari, is to have his title declared void. Olsen must rely on the title to be derived through Wakeley, pursuant to his contract. The decree directs Wakeley to execute and deliver to Olsen “a good and sufficient deed of conveyance,” subject to the mortgage, etc., arid that in lieu thereof the master in chancery execute and deliver such deed. This is all that is necessary to complete his title, as disclosed by this record. The decree will, therefore, be modified in this court by striking out so much thereof as directs Coari to convey to Olsen. We do not, however, regard this modification as important enough to affect the question of costs. The decree Avill, in all other respects, be affirmed, and the costs Avill be taxed against the appellant. Decree modified, and affirmed.