Sheorn v. Robinson

• Citation: 22 S.C. 32
• Parties: SHEORN v. ROBINSON.
• Decision Date: 19 November 1884
• Court: United States State Supreme Court of South Carolina

22 S.C. 32

SHEORN v. ROBINSON.

Supreme Court of South Carolina.

November 19, 1884

1. Actual possession of land by a vendee under a contract to purchase operates as notice to a subsequent purchaser from the vendor, although such possession, as matter of fact, is unknown at the time to such subsequent purchaser. MR. JUSTICE MCIVER, dissenting .

2. Per MCIVER, A. J. A purchaser of land under a decree of foreclosure is chargeable with notice of the rights of a purchaser in possession under a contract to purchase (prior in date to the mortgage) where the title deeds held by the mortgagor gave notice, which, if prosecuted, would have led to knowledge of such contract.

Before FRASER, J., Kershaw, May, 1884.

To the statement of the case as made by the Circuit decree, it will be proper to add the following facts, which appear in the brief:

In compliance with defendant's notice, plaintiff produced the following deeds, which defendants offered in evidence, to wit:

I. Deed of J. D. Dunlap, receiver of John Chesnut, to Thos. Moore and A. L. Monroe, March 1, 1869, 618 acres, more or less, bounded west by Wateree river, No. 19 of the general plat, plat whereof is attached to the deed.

II. Thos. Moore to A. L. Monroe, February 16, 1873, " all my right, title, and interest in 286 acres of said land," " bounded north by land of Jos. Brevard, Scipio Williams, and Paris Watts, east by land of Wm. J. Gerald south by Wm. D. McDowall, and west by Thos. Moore, as shown by plat hereto annexed and by plat annexed to deed to Robert Robinson from myself, bearing even date herewith, being the eastern portion of the tract of 618 acres conveyed by Dunlap to Thos. Moore and A. L. Monroe" as above stated. Defendant offered in evidence the record book, " C C.," p. 106, showing the plat of the last mentioned deed, which calls for 220 acres. The plat was made by S. M Boykin, D. S., at the request of A. L. Monroe, on November 15, 1869.

III. Deed of A. L. Monroe to Robert Robinson, dated February 17 1873, for 66 acres, at two hundred and ninety-seven dollars plat attached with renunciation of dower. This deed was never delivered or recorded, and was found in possession of A. L. Monroe after his death.

The description, boundaries, marks, & c., of the land in mortgage of A. L. Monroe to Witte Bros., is the same as in deed of Moore to Monroe, except that no reference is made to plats or deed to Robinson.

The Circuit decree was as follows:

This case came before me at the June term of the court for Kershaw County, on the report of the master and exceptions thereto. The action was brought originally against Robert Robinson and Wesley Truesdel, and the former having departed this life, it was duly continued against his heirs at law. The action was brought to recover possession of a tract of land containing (66 2/3 ) sixty-six and two-thirds acres of land, and an equitable defence was set up, and by consent all the issues of law and fact were referred to the master.

In March, 1869, A. L. Monroe and Thomas Moore purchased at the sale of the lands of the late John Chesnut a tract of 618 acres of land. Both parties in this action claim under A. L. Monroe, and it is therefore unnecessary to inquire into the validity of the title of John Chesnut, or in what way partition was made between Thomas Moore and A. L. Monroe, so as to give title in severalty to A. L. Monroe for 286 acres of said tract of 618 acres, and of which 286 acres the land in dispute is a part. For the purposes of this case neither party can dispute his title, and the pleadings show this derivation of title from a common source without any evidence on the subject.

The tract of 618 acres was mortgaged by Thomas Moore and A. L. Monroe to secure the purchase money to the estate of John Chesnut. A. L. Monroe gave to Witte Bros. a mortgage of the 286 acres in 1875, and one in 1876 for advances, and one again in 1877, by which the two former were cancelled; with money borrowed from Witte Bros. the Chesnut mortgage was paid up. The mortgage to Witte Bros. of 1877 was foreclosed by a decree of the court, and at the sale on June 8, 1880, plaintiff became the purchaser and took title, and the sale was confirmed by order of the court. Before this sale defendants gave notice of their claim, the plaintiff being present, and there receiving actual notice.

The master thus states the defence set up by Robert Robinson, who is now represented in this case by his heirs at law: " A. L. Monroe, in March, 1870, agreed to sell, and did sell, to Robert Robinson, sixty-six and two-thirds acres of said land, and on that day received from Robert Robinson $130 in part payment, and put Robinson into possession of the same, and had a dividing line between his land and Robinson's run out by a surveyor; that Robinson also paid Monroe $189.50 in part payment of the same land in the years 1872, 1873, and 1875, and then ceased paying, leaving a balance still due for the 66 2/3 acres. The proof is that Robinson built a frame house on the land, worth two hundred dollars, with two rooms and passage, brick chimney and windows; and that he cut timber on the land and sold it as firewood; that he boxed the pine trees for turpentine and sold the rosin; that he cleared up a part of the land in 1870, and has cultivated it from then until this time."

A deed with renunciation of dower was made out and signed, but not delivered, by Monroe. The testimony by Wesley Truesdel, which I think not excluded by section 400 of the code, and if it had been, could only have been objected to by Robinson and his heirs (9 S.C. 392), shows that he entered and is still in possession of 30 acres of this 66 2/3 acres, under some agreement with Robert Robinson. I am unable to ascertain, from anything before me, the exact amount still due on the contract between A. L. Monroe and Robert Robinson, or how much has been paid by Wesley Truesdel on his contract with Robinson (if anything), though it does appear that he has erected a log house on the land.

If Wesley Truesdel is in possession as a tenant , his possession inures to the benefit of Robert Robinson, who put him in possession. If he is in possession as a purchaser from Robert Robinson, he is entitled to the full protection of any equitable rights which Robert Robinson may have acquired in the land. In Jones on Mortgages , § 600, we find the following: " Possession by a vendee under a contract of purchase, whether it be personal or by a tenant, is constructive notice of his equitable rights as purchaser, and any one taking a mortgage under such circumstances from his vendor, takes subject to his rights. The mortgage lien, under such circumstances, covers the property only to the extent of the unpaid purchase money."

In the discussion of the subject in Pomeroy Eq. Jur. , § 615, we find that " the constructive notice thus described, like that arising from a record or registration, does not seem to depend upon any actual knowledge or information of the possession communicated to or had by the subsequent purchaser, since he is held to be charged with notice even though he is a resident of another state. ** The purchaser cannot say, and cannot be allowed to say, that he made a proper inquiry and failed to ascertain the truth." See Knox v. Thompson , 13 Amer. Dec. , 246, and note.

The case of a purchaser at a sale by the sheriff under an execution is not exactly analogous to that of a purchaser at private sale and who holds under a mortgage as an individual deed; but in Kairson v. Puckhaber , 14 S.C. 626, No. 990, it is said " that possession was notice," which I take to mean without any actual notice of the possession; possession, like recording, operating as notice. At any rate, I think that a man who buys or takes a mortgage of land is presumed to know whether the possession corresponds with the paper title, and if inconsistent with it, this would be sufficient to affect him with notice of all the rights which accompany such possession. I therefore hold that Robert Robinson was entitled to have a specific performance of the contract with A. L. Monroe, and that Wesley Truesdel is protected thereby in his contract with Robert Robinson; that Witte Brothers took subject to these equities, and that the plaintiff takes no higher title than Witte Bros.

For want of accurate information, I cannot make a complete decree, but can only announce my judgment on the principles which govern the case.

It is therefore ordered and adjudged, that the report of the master be overruled; that the plaintiff has the right to have payment of the full amount of the purchase money, and interest, which remains unpaid, according to the contract between A. L. Monroe and Robert Robinson; that it be referred to the master to inquire and report what this balance so unpaid amounts to; that upon the coming in and the confirmation of such report, if such balance be not paid within a time to be fixed by the court, that the master do sell the said 66 2/3 acres on such terms and at such time as the court may order, and out of the proceeds of sale he do pay the costs of the plaintiff and expenses of the sale, and then to the plaintiff such unpaid balance; then the costs of the other parties to this action, and any balance to the defendants in the proportions they may be entitled to under the agreement with Wesley Truesdel made by Robert Robinson.

It is also ordered and adjudged, that the master do inquire and report the terms of the contract between Robert Robinson and Wesley Truesdel, and what amount is due thereon, and if the amount of the balance due to plaintiff on the coming in of the master's report, and the confirmation of the same shall be paid as directed by the court, or if a sale shall be made as above provided...