Scroggins v. McDougald , 8 Ala. 382 ( 1845 )

GOLDTHWAITE, J

The admissions of the counsel for McDougald, as well as the evidence of the only witness examined in the cause, establishes that the complainant and Bagly, under whom she claims, had the actual possession of the lot at the time when McLean assigned the certificate ’ of the commissioners to McDougald, by means of which he subsequently obtained the title. The only question therefore, in this aspect of the case is, whether the possession so held was a sufficient matter to put the defendant, McDougald, upon inquiry as to the title of the occupants, and thus affect him with notice, although, in point of fact he had no information that the possession was thus held. It is laid down very generally in the books, that whatever is sufficient to put the purchaser upon inquiry, is good constructive notice. [Atkinson on Marketable titles, 573; 2 Sug. on Vend. 290.] It is difficult to conceive what circumstance can be more strong to induce inquiry, than the fact that the vendor is out of possession and another is in. Accordingly it has been held, that information to a purchaser, that a tenant was in possession, is also notice of his interest. [Hiern v. Wall, 13 Vesey, 120.] And if any part of the estate purchased is in the occupation of a tenant, it is considered full notice of the nature and extent of his interest. [Atkinson on Mark. Tit. 574.] In the American Courts, the rule is very generally recognized, that if a vendee is in possession of lands, a subsequent purchaser or mortgagee has constructive notice of his equitable right. [Brown v. Anderson, 1 Monroe, 201; Johnson v. Gwathney, 4 Litt. 317; Charterman v. Gardner, 5 John. C. 29; Governeur v. Lynch, 2 Paige, 300; Grimstone v. Carter, 3 Ib. 421.] As the complainant in this case was in the occupancy of the land at the time when McDougald acquired it by purchase or transfer from McLean, it is immaterial whether knowledge of the occupany can be traced to him, because the law casts on him the duty of ascertaining how that fact is. If a different rule was admitted, a purchaser residing at a distance from the land, would rarely be charged with notice on this account.

McDougald being chargeable with notice of the equities of the complainant, can take nothing by the transfer made to him by McLean, but holds the title acquired from the commissioners as a trustee. [Legget v. Wall, 2 A. K. Marsh. 149; Pugh v. Bell, 1 J. J. M. 403.] He will therefore be compelled to convey it, upon the re-imbursement to him of the sum actually paid to the commissioners, to perfect the right to a legal title.

The decree, instead of dismissing the bill, should have declared the defendant, McDougald, trustee for the complainant, and directed a reference, to ascertain the sum paid by him to the commissioners, to perfect the legal title to the lot, and on payment of this by the complainant, to vest in her the title of McDougald.

Eeversed and remanded to carry out the measures here indicated.