Martin v. Thomas.
| Decision Date | 15 November 1904 |
| Citation | 56 W.Va. 220 |
| Court | West Virginia Supreme Court |
| Parties | Martin v. Thomas. |
1. Innocent Purchaser Executory Contract.
A court of equity will not enforce, against an innocent purchaser, who has paid the purchase money and taken legal title to land, without notice, a prior executory contract for the purchase of the land. (p. 222).
2. Original Sale. Innocent Purchaser.
An answer which seeks to defeat the right of a bona fide purchase of land on the claim that the party filing the answer had made a prior executory contract for its purchase from the same owner, must aver that when the plaintiff paid purchase money and took title he had notice of such prior contract. (p. 222).
3. Possession of Land Notice Subsequent Purchaser.
To make possession of land notice to subsequent purchasers, such possession must be inconsistent with the occupant's apparent or record title, because such possession will be presumed to be under such title rather than under another right. (p. 222).
4. Possession by Parcener as Notice to Subsequent Purchaser.
The mere sole possession of one coparcener or tenant in common is not notice to subsequent purchasers of shares of other coparceners or tenants in common of the right of such occupant to those shares under a prior unrecorded purchase of them by such occupant. (p. 223).
5. Innocent Purchaser Adverse Claimants Equitable Defense.
Section 20, chapter 90, Code 1891, allowing equitable defense under a writing for the purchase of land applies only to suits involving possession, not to a contest for the land between two purchasers of the same land from the same vendor. (p. 225).
Appeal from Circuit Court, Preston County. Bill by Isaac P. Martin against Elisha Thomas. Decree for defendant, and plaintiff appeals.
Reversed.
P. J. Crogan, for appellant. J. A. Brown, for appellee.
Elisha Thomas and Elizabeth Corbin were joint equal owners of a tract of 244 acres of land in Preston county. Mrs. Corbin died childless, and her half went by descent to kindred, Elisha Thomas, a brother, the children of a dead brother, Frank. Thomas, and three sisters, Hannah Coombs, Mary Ann Cole and. Permelia Jenkins. Elisha Thomas acquired the share of Per melia Jenkins, and owning his original half, equal to five tenths, and one tenth as a brother of his dead sister, Elizabeth Corbin, and the one-tenth acquired from Permelia Jenkins, he owned seven tenths. Hannah Coombs and Mary Ann Cole by deed 28th March, 1898, and the heirs of Frank Thomas by deed of same date conveyed their shares to William G. Brown, which deeds were for money consideration cash paid. Brown being thus owner of three tenths, conveyed the same to Isaac P. Martin by deed 28th December, 1898, for the consideration of $1,000. Martin brought a chancery suit against Elisha Thomas conceding that Thomas owned seven tenths of said land, and claiming himself three tenths, and asking a partition according to such ownership. Elisha Thomas defended the suit, claiming the whole tract, denying Martin's right to any share on the ground that in December, 1895, he had entered into a written contract with an agent of Mrs. Coombs, Mrs. Cole and the heirs of Frank Thomas, not recorded, whereby they sold their shares to him. He claimed that the deeds to Brown were illegal, wrongful and not on adequate consideration, and denied Martin's right. He asked a decree for the whole tract. The court dismissed the bill, and Martin appealed.
The answer and amended answer which were objected to, but admitted, present no defense to defat the bill. The plaintiff is a purchaser of the shares of Mrs. Cole, Mrs. Coombs and Frank Thomas for valuable consideration, and the answers charge no actual notice on Martin, or his grantor Brown, of the right of Elisha Thomas when they obtained the legal title. When two persons claim the same land as purchasers from the same vendor, if neither has the legal title, but that is still in the vendor, the purchaser first in time has preferential right to call for the legal title; but where the junior has paid purchase money and received a conveyance of legal title he is accorded preference in equity, since his legal title gives him superiority in a court of common law. Urpman v. Lowther Oil Co., 53 W. Va. 501, (point 10). In 23 Am. & Eng. Ency. L., (2d Ed.) 475, is a full discussion of this important subject and a reference to the many authorities. Such a purchaser has the legal title, and his claim upon the conscience of a court of equity, if he is honest, is as high as that of his adversary. "No party can occupy a higher ground than that in a court of equity; and if he can maintain that position, his title is established and his position impregnable." Brisco v. Ashby, 24 Grat. 473. We find in 1 Am. & Eng. Dec. in Equity, 249, that equity "will not interfere, either for relief or discovery against a bona fide purchaser of a legal estate for valuable consideration without notice of the adverse title, or of any circumstance affecting the apparent right to that which he purchases." "Courts of equity will not take the least step imaginable against an innocent purchaser in such a predicament; and will, on the other hand, allow him to take every advantage which the law gives him; for there is nothing which can attach itself upon his conscience in such a case in favor of an adverse claim." 2 Story Eq. section 1503. "Relief of cancellation will not be granted against a bona fide purchaser for value without notice of the fraud or other ground for cancellation." 6 Cyc. 319. This rule is universal. Turk v. Skiles, 45 W. Va. 82; Lough v. Michael, 37 Id. 679; National Bank v. Harman, 75 Va. 609; Carter v. Allen, 21 Grat. 241. Seeing that the title of Martin is good, unless he and Brown had notice of the claim of Thomas, surely those answers should charge notice. One who would nullify a deed because fraudulent as to creditors must aver notice against the purchaser, because his title is good, unless he had notice, just as Martin's title is. Hogg, Eq. Proced. section 384.
Though neither of the answers charges actual notice, yet one of them charges that in pursuance of his purchase of the interests of Mrs. Coombs, Mrs. Cole and Frank Thomas, Elisha Thomas took actual possession, and such possession, prior to the deeds to Brown and Martin, is alone notice of the rights of Elisha Thomas under said executory contract of purchase. Urpman v. Lowther Oil Co., 53 W. Va. 501 (pt. 11). This raises the question whether when one of several coparceners is in possession, and others not themselves in actual possession, and that one in possession makes an executory contract to purchase the shares of those others, such possession of that one is construe- tive notice to the world of his purchase, so as to warn all persons from purchasing the shares of those purchasers not in possession themselves. We know that the possession of one coparcener is the possession of all, in the absence of an actual ouster; his possession is not adverse to, but consistent with, the rights of his co-owners. In 23 Am. & Eng. Eney. L., (2d Ed.) 506, is the rule that to give possession the force of notice, "The possession must be inconsistent with the apparent or record title of the grantor, else it will not be sufficient to put upon the purchaser the duty of making further inquiry; the reason being that in such case the possesson is presumed to be under the grantor's title." Many cases are cited for the text. Warvel on Vendors p. 330. 3 Washburn E. Prop, section 2201, says: "No inference is to be deduced from possession when it is consistent with the possessory title on record." Apply this principle to this case. Elisha Thomas was in possession under his joint tenancy with Elizabeth Corbin, and on her death with her heirs. The recorded title showed his right. One had right to ascribe his possession to his own apparent title on the record. He was, after Mrs. Corbin's death, as one of her heirs, a coparcener in her half with her other heirs, and the law would ascribe his possession, both to his right as original owner of an undivided moiety and as a coparcener with other heirs in the Corbin moiety under her recorded right. His possession would not be inconsistent, but would be consistent with, the rights of her other heirs.
Mullins v. Nickel, 25 Mont. 525, holds in point with our case: "In so far as persons other than the tenants themselves are concerned, the actual occupancy of one tenant in common is the rightful possession of all the owners, and if a title under which they might hold is on record and is consistent with the occupancy, the possession must be referred to the record, and. will not be constructive notice of any other title." ...
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