Staples v. Freeman

WOOD, J., (after stating the facts). The appellee did not have his lease recorded. Therefore, the appellant was not bound to take notice thereof. The burden was upon the appellant to establish his title, and this he did by introducing his deed from the vendor, under whom also the appellee claimed the right of possession by virtue of his lease. Appellee having set up a right of possession adverse to the owner of the fee, the burden was upon him to establish his right to such possession by showing that the appellant had actual notice of his possession, or had knowledge of such facts as would lead a man of ordinary prudence to make inquiries, which, if pursued with reasonable diligence, would have led to knowledge of the fact of appellee’s possession. Love v. Cowger, 130 Ark. 445; Knapp v. Bailey, 79 Me. 195, 1 Am. State Repts. 295 and cases cited in note. Actual notice may be proved by direct or positive evidence to the effect that notice was personally given to the person to be notified, or it may be established by circumstances which warrant the inference that actual notice was given. The general rule is “that actual notice embraces all degrees and grades of evidence, from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion.” 20 Rul. Case Law, 340. The appellee testified that he personally informed the appellant when the latter “looked like he was going to buy the land” that he (appellee) had a lease on it for two years, and the testimony of witness Cobb tends to corroborate the testimony of the appellee to the effect that the appellant had personal notice at the time of his purchase that the appellee had a lease on the land. Moreover, the circumstances were sufficient to put a man of ordinary prudence upon inquiry as to whether or not the land was in possession of another at the time of its purchase. Appellee had cultivated the land three years immediately preceding the purchase by the appellant. Evidences that the land had been and was being cultivated were plainly obvious to tbe appellant as be testified himself, for be says, “It bad evidences of being cultivated, but by whom I did not know. I did not ask Wilder bow much be rented tbe land for; did not make any inquiry about it.” Without discussing further tbe evidence in detail, which could serve no useful purpose, we are convinced that tbe finding of tbe chancery court is sustained by a preponderance of evidence. Tbe decree is therefore correct, and is affirmed.