Digby v. Jones

• Decision Date: 31 October 1877
• Citation: 67 Mo. 104
• Parties: DIGBY v. JONES et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 104

DIGBY

v.JONES et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

John F. Darby for appellants, argued that plaintiff was not entitled to protection against the agreement between appellants and the bank, because not having paid the whole of the purchase money, he was not an innocent purchaser. Actual payment is necessary, and the giving security or executing obligations for payment is not sufficient. High v. Batte 10 Yerg. 186; Christie v. Bishop, 1 Barb. Ch. 105; Murray v. Ballou, 1 John. Ch. 566; Hunter v. Simrall, 5 Littell 62; Wormley v. Wormley, 8 Wheat. 444; Vattier v. Hinde, 7 Pet. 252; Doswell v. Buchanan, 3 Leigh 365; Dillard v. Crocker, 1 Speer Eq. 20; Kyles v. Tait, 6 Gratt. 44. Besides, the plaintiff lived within a few feet of the defendants, Lewis and Julia Jones, in the same block, on the same side of the street--he had lived there for seven years-- knew the defendants well; saw Julia Jones sweeping off the sidewalk every morning; spoke to her every day--bidding her “good morning”--interchanging the salutations of the day. All this is shown by the record. He knew she paid no rent, and claimed the property. What is sufficient notice to affect a subsequent purchaser, from one who has previously entered into a contract for tbe sale of lands, see Caldwell v. Carrington, 9 Pet. 86; Flagg v. Mann, 2 Sum. 486; Burbank v. Hammond, 3 Sum. 429. A party, put by circumstances on inquiry as to a fact, is affected by constructive notice thereof. Oliver v. Piatt, 3 How. 333; U. S. v. Sturges, 1 Paine 525; Hinde v. Vattier, 1 McLean 110. Open, notorious and exclusive possession of real property by parties claiming it, is sufficient to put other persons upon enquiry as to the interests, legal or equitable, held by such parties; and if such other persons neglect to make the inquiry, they are not entitled to any greater consideration than if they had made it, and had ascertained the actual facts of the case. Smith v. U. S., 2 Wall. 232.

Hitchcock, Lubke & Player for respondent, cited Love v. Taylor, 26 Miss. 567; Padgett v. Lawrence, 10 Paige 170; Freeman v. Deming, 3 Sandf. Ch. 327; Bellas v. McCarty, 10 Watts 13; Flagg v. Mann, 2 Sum. 564; Gilday v. Watson, 5 Serg. & Rawle 267; Aubuchon v. Bender, 44 Mo. 560; 2 White & Tud. Lead. Cas., 52, 118.

HENRY, J.

Plaintiff sued defendants in ejectment in the circuit court of St. Louis county for a lot in the city of St. Louis, and defendants in their answer alleged, as an equitable defense, that the Real Estate Saving Institution, plaintiff's grantor, acquired the legal title by purchase at a trust sale, under an agreement with the defendants to hold the legal title until a certain demand it held against them for money borrowed should have been paid out of the rents, and then convey it to the defendant, Julia Jones; that the debt, about $5,000, was not one-fourth the value of the property; that plaintiff had knowledge of their equity, and also that he had not paid the purchase money. The replication was a denial of the material facts stated in the answer. At the same time there was pending in the said circuit court, a suit in which these defendants were plaintiffs, and the plaintiff herein, and said Real Estate Saving Institution were defendants, the object of which was to have said sale to plaintiff herein set aside, and allow the plaintiffs to redeem the property. It was agreed between the parties that this, the ejectment suit, should be taken as submitted to the court sitting as a jury, upon the testimony which should be introduced on the hearing of the other cause in which defendants were plaintiffs, and that judgment should be entered in this cause immediately after the trial of the other. On the trial of that cause the court submitted to a jury issues, among them the following: Did the defendant, Henry Digby, prior to his purchase of the property in question from the Real Estate Saving Institution, have any notice of the alleged private agreement or understanding between said institution and plaintiffs, as alleged in the petition? The verdict of the jury was that he had not such notice, and after hearing all the evidence, the court made a decree that the said Real Estate Saving Institution pay to plaintiffs (defendants herein) thirteen thousand dollars, and that Henry Digby go hence without day as to all and singular the matters pleaded against him herein, &c. The court, in pursuance of the agreement above recited, after the trial of the cause in which defendants here were plaintiffs, found for the plaintiff, Digby, in this cause, and rendered a judgment accordingly, which, on appeal to the general term by defendants, was affirmed, and was again in the Court of Appeals affirmed, and defendants have prosecuted an appeal to this court. On the issue submitted to the jury, by ...