Chapman v. Chapman 1

• Decision Date: 25 April 1895
• Citation: 91 Va. 397,21 S.E. 813
• Parties: CHAPMAN . v. CHAPMAN et al.1
• Court: Virginia Supreme Court

21 S.E. 813

91 Va. 397

CHAPMAN .

v.CHAPMAN et al.¹

Supreme Court of Appeals of Virginia.

April 25, 1895.

Adverse Possession — Vendor and Vendee — Purchaser for Value—Trustee for Creditors —Notice from Possession—Equity Practice— Evidence.

1. Before adverse possession can arise between a vendor and his vendee, or between the grantee of the vendor and such vendee, where the vendor has retained the title, the vendee must have asserted an adverse right, and openly and continuously disclaimed the title of his vendor, and such disclaimer must have been clearly brought home to the vendor or his grantee.

2. A trustee to whom property has been conveyed to secure creditors is a purchaser for value.

3. One who buys land in the possession of another than his vendor is bound to take notice of such possession and all that it imports.

4. A father purchased land for his son, taking the deed in his own name. The son took possession of the land, and paid the purchase money, but never received a deed from his father. After the son had been in possession 14 years, the father made a deed to secure creditors, which included the son's land. Held, that the trustee in the deed to secure creditors acquired no interest superior to the son's.

5. Possession of a corporeal hereditament, to be effectual, need not be continually visible or without cessation actively asserted. If a man has once rightfully received actual possession of land, he may depart without authorizing a serv ant or agent to enter upon it, may leave it for years uncultivated and unused, may set no mark of ownership upon it, and his possession may nevertheless still continue, unless his conduct afford evidence of intentional abandonment, which the conduct mentioned would not necessarily do.

6. Notice to one of two or more trustees is notice to all.

7. Where one of two trustees is charged to have had actual knowledge of a title adverse to that conveyed to them jointly, and the other trustee answers, denying the allegations of the bill, but the one charged with knowledge makes no answer, the denial of the answer need not be overcome by the testimony of two witnesses, or the testimony of one witness with strong corroborating circumstances.

Appeal from circuit court, Madison county.

Bill by Bernard T. Chapman against Thomas A. Chapman and James Hay, trustees. From a decree for defendants, complainant appeals. Reversed.

J. C. Gibson, for appellant.

James Hay and T. C. Gordon, for appellees.

RIELY, J. This is a controversy between the owner of the equitable title and the holders of the legal title to certain lands. Both claim under the same vendor. The appellant, Bernard T. Chapman, claims the lands by right of purchase, the payment of all the purchase money, and the delivery to him of the possession in pursuance of his purchase, although the title to the lands has never been conveyed to him. Long after he had acquired the said lands, his father, Thomas W. Chapman, from whom he claims, and in whom was the legal title, conveyed them, along with other lands belonging to him, to James Hay and Thomas A. Chapman, in trust to secure his creditors; and the trustees claim the lands in possession of the appellant as bona fide purchasers for value, without notice of any right in him to them. The appellant bases his right to hold the lands on several grounds.

The first ground on which he relies is that of adverse possession under claim of title for more than 15 years, the period of the statutory bar. This pretension, under the circumstances of this case, cannot be sustained. He purchased one part of the lands of his father in the year 1870, and acquired the other part in the year 1874, and took possession of each parcel at the time of the purchase, or very soon thereafter. He entered into possession of both parcels under his contracts of purchase. By such purchase, and the payment of the entire purchase money, he acquired the full equitable title, but such equitable title was derived from his vendor, who retained the legal title for future conveyance. In such case the vendee cannot be said to hold adversely to his vendor. Clarke v. McClure, 10 Grat. 305; Creigh's Heirs v. Henson, Id. 231; Nowlin v. Reynolds, 25 Grat. 137. He holds in subordination to and under the protection of the title of his vendor, and no length of time is sufficient for such possession to ripen silently into a title byadverse possession. Such possession is in privity with and in subserviency to the legal title of his vendor, and he is not allowed to impeach or assail it. As was said by President Tucker in Williams v. Snidow: "Adverse possession is not the mere holding over against the will of the party from whom you obtain the possession. It is the holding by claim of title, adverse to another's title, that constitutes adverse possession." Williams v. Snidow, 4 Leigh, 14, 20. Before adverse possession can arise between a vendor and his vendee, or between the grantee of the vendor and such vendee, where the vendor has retained the title, and the statute of limitations commenced to ran, the vendee must have dissevered the privity of title between them by the assertion of an adverse right, and openly and continuously disclaimed the title of his vendor, and such disclaimer be clearly brought home to the knowledge of the vendor or his grantee. Creekmur v. Creekmur, 75 Va. 430, 436; Whitlock v. Johnson, 87 Va. 323, 327, 12 S. E. 614. There has been no disavowal by the appellant of the title of his vendor, and the claim of adverse possession cannot avail him.

The next and main ground upon which the appellant relies is that the trustees are not bona fide purchasers for value without notice. They are unquestionably, under many decisions of this court, purchasers for value. Evans v. Greenhow, 15 Grat. 153; Wickham v. Lewis, 13 Grat. 427; Bank v. Knox, 19 Grat. 739; Shurtz v. Johnson, 28 Grat. 657, 667; Cammack v. Soran. 30 Grat. 292; Williams v. Lord, 75 Va. 404; Witz v. Osborn, S3 Va. 230, 2 S. E. 33. Are they bona fide purchasers without notice? The open and peaceable possession of land under a claim of right is notice to all the world of the right or claim of the person in possession; and, where one buys land in the possession of another than his vendor or grantor, he is bound to take notice of such possession and all that it imports. This is, I think, the rule to be deduced from the authorities. It is the duty of a purchaser to inquire into the fact of the possession, and he will be affected with knowledge of whatever right or interest the party in possession may have in the land which such inquiry would have disclosed. The rule has its foundation in the good faith of the purchaser. If he make the inquiry, he would acquire knowledge of whatever right or claim, if any, the person in possession may have; and if upon inquiry he receives information of any right or interest of such person in the land, it would be mala fides to attempt to deprive him of it. So, if he fail to make inquiry, he has not discharged the duty which good faith imposed on him; and whatever knowledge he might have acquired by means of an inquiry duly and reasonably prosecuted the law imputes to him. The purchaser is therefore charged with notice of the possession, and of whatever right interest, or claim the person In possession may have, when the party from whom he buys is not the person in possession of the land. Such notice is the same in effect as the notice which is imputed by the recording or registering acts. One may purchase land to which another than his vendor has a deed of conveyance, or upon which he has a mortgage duly recorded according to the statute for the recordation of deeds, but of which the purchaser knows nothing, yet he will be as conclusively charged with notice of such conveyance or mortgage as if he had examined the record and inspected the deed. He is required for his own protection to examine the records, and the law imputes to him all that such examination would have disclosed. Actual, notorious, and exclusive possession of land takes the place of the recordation of the instrument of title; and a subsequent purchaser of land in possession of one who is not his vendor is affected with notice of whatever claim or interest the person in possession has, and which an inquiry into the possession would have revealed. He is not permitted to dispute such right or interest unless he has made the inquiry which equity and good conscience impose on him, and such inquiry, duly prosecuted, has failed to reveal any right or interest in the tenant in possession. This is the established doctrine both in England and in this country. In the case of Holmes v. Powell, that eminent jurist, Lord Justice Knight Bruce, said: "I apprehend that by the law of England, when a man is of right and de facto in the possession of a corporeal hereditament, he is entitled to impute knowledge of that possession to all who deal for any interest in the property conflicting or inconsistent with the title or alleged title under which he is in possession, or which he has a right to connect with his possession of the property. It is equally a part of the law of the country, as I understand it, that a man who knows, or cannot be heard to deny that he knows, another to be in possession of a certain property, cannot for any civil purpose, as against him at least, be heard to deny having thereby notice of the title or alleged title under which or in respect of which the former is or claims to be in that possession." 8 De Gex, M. & G. 579. The same general rule, based upon the same motives and reasons, is said by Pomeroy, in his work on Equity Jurisprudence, to be established in the United States by a very great number of decisions. See 2 Pom. Eq. Jur. § 614, and the cases cited in the note thereto in support of the text.

The doctrine has recently been upheld by the court of appeals of New York in its fullest extent in the case of Phelan v. Brady, 119 N. Y. 587, 23 N. E....