Anderson v. Brinser , 129 Pa. 376 ( 1889 )

Opinion,

Mr. Justice Claes:

It is agreed that John Snyder owned and died seised of the premises in dispute. Both parties rely on this common source of title. The plaintiffs, on the one hand, are the heirs at law of John Anderson, deceased, who they allege, in his lifetime, in the year 1857, purchased the premises under a parol contract from the heirs of John Snyder, then deceased; and their claim is, that this parol contract has been so far in part executed as to render it unjust and inequitable to rescind the same. The defendant, on the other hand, claims under a regularly executed conveyance from the heirs of Snyder to J. ■ Hoffman Hershey, dated November 22, 1858, and under a deed from Hershey to him, dated August 19,1884: he denies that any such parol sale was made, and that if it had been, the defendant purchased without notice of it; and further, that if any such equitable right or title ever existed, it was subsequently abandoned and nullified, by an agreement to take the premises under a lease at a certain yearly rent.

The first question arising in the case, therefore, is, whether or not, if the evidence is believed, a parol contract has been established by sufficient proof, and enough shown to take the case out of the statute of frauds. This was a question of law for the court below, and is for our consideration here : Overmeyer v. Koerner, 81* Pa. 517.

To establish a parol contract for the sale of land, and take it out of the statute, the existence of the contract and its terms must be shown by full, complete, satisfactory and indubitable proof; the evidence must define the boundaries and fix the consideration; exclusive and notorious possession must have been taken under it, and continuously maintained, and the contract must have been so far in part performed, that compensation in damages would be inadequate, and rescission inequitable and unjust: Hart v. Carroll, 85 Pa. 508. In Jamison v. Dimock, 95 Pa. 52, it was held, however, that in the case of a parol sale for a money consideration, fully paid according to thp contract, where the possession was taken and continuously held in pursuance thereof, it is not essential that the improvements should be such as could not be compensated in damages; that the equities of the vendee might rest upon other equally available grounds.

In the case at bar, the parol agreement is alleged to have been made by Washington R. Snyder, one of the heirs, in his own behalf and “ representing ” the remaining heirs of John Snyder, deceased. Who the remaining heirs were does not distinctly appear in the proofs. The defendant read in evidence the deed to J. Howard Hershey, purporting to be from the heirs and legal representatives of John Snyder deceased, and from the note made of it in the evidence, it would seem that he' left at least four children and heirs viz.: Washington R. Snyder, Maria intermarried with Christian Fisher, Sarah intermarried with John Winagle, and Catharine intermarried with one Snavely; whether or not there were any others does not appear.

It is undoubtedly true, that there was a contract for the sale of this lot by Washington R. Snyder to John Anderson, made in the year 1857; the receipt, dated October 22, 1857, taken with the other evidence in the cause, is full and complete on this point. The terms of the contract are, we think, sufficiently shown. The lot is described as No. 258 in the borough of Middletown, which may be regarded perhaps as a proper designation of the boundaries; the consideration was $300, a considerable part of which, if not all, was shown to have been paid; possession was taken immediately after and in pursuance of the purchase, and a dwelling house was erected upon it; the possession was open and notorious, and was continuously maintained for many years, and until legal proceedings were instituted to test the title. But how and by what authority did Washington R. Snyder represent his sisters, in the sale ? Was he their attorney in fact, regularly constituted, or was he their agent by parol merely ? Is there proof that he had authority of any kind or character from them ? He might perhaps enter into a parol contract in respect of his own interest, but how could he without authority bind his sisters ? They were not present; they do not appear to have participated in the sale, or to have approved it after it was made; it does not appear that they received any portion of the purchase money, or indeed that they ever knew any such contract was made, atft least until after their conveyance to Hershey. We are not to presume that Washington R. Snyder had power to sell his sisters’ shares,- simply because he assumed to have it, and if he had not the power, his contract to that effect was of no validity whatever as to them; it was just as if it had never been made, and there is not the slightest proof that any such power existed.

The transaction in question occurred nearly thirty years ago, during nearly all which time the plaintiffs had been in possession under claim of title. It cannot be expected, perhaps, after tins great lapse of time, that the proof should be as precise as if it related to a recent occurrence, but a person purchasing real property knows, or ought to know, that the law requires the evidence of his title to be in writing; the burden of proof is therefore upon him; the delay, as in this case, is frequently his own fault, and this stringent but statutory rule of evidence will not generally be relaxed in his favor. It was incumbent, therefore, upon the plaintiffs, not only to establish the existence of a contract made by Washington R. Snyder, and the terms of that contract, but also his authority for making the same.

But, assuming that, in the re-trial of this case, proof may be made of the authority of Washington R. Snyder, to “represent” his sisters in the sale, we come next to consider the question as to the effect of the written agreement, made between Hershey and Anderson on December 30, 1875. It is contended, on part of the defendant, that this writing was an abandonment of any equity Anderson may have acquired under the parol purchase alleged, and that he and his heirs are thereby estopped from claiming any title to the lot. The lease was undoubtedly evidence of abandonment, and was, with all the other evidence in the cause, for the consideration of the jury, but it cannot be set up as an estoppel. Hershey was the holder of the legal title; Anderson had for eighteen years made default in the payment of the purchase money, and it was Hershey’s clear right by an equitable ejectment, at any time to rescind the contract and recover the possession. But he might contract, in the form of a lease or otherwise, with the defaulting vendee for the continuance of his possession, for fixed periods of time, on terms agreed upon, the rent to be applied to the interest or principal of the purchase money. Abandonment includes both the intention to abandon, and the external act by which that intention is carried into effect; intent is of the essence of the act, and therefore the facts are in each particular case for the judge: Clemmins v. Gottshall, 4 Y. 330; Atchison v. McCulloch, 5 W. 18; Heath v. Biddle, 9 Pa. 273; Kunkle v. Wolfersberger, 6 W. 126. Very similar to this is the case last cited. There the owner of an equity of redemption executed a lease of the mortgaged premises to the mortgagee, covenanting to pay to him an annual rent of $24, together with the taxes and repairs. It was argued in that case, as it is in this, on the one hand, that the acceptance of .the lease was a relinquishment of the equity; on the other hand, it was contended that the lease was only a mode adopted for securing the possession for a definite time, and providing for the interest, in the form of rent, and that whether it was or not was for the jury. Chief Justice Gibson, delivering the opinion of the court, said: “ The only original thing in the cause, and it is not of difficult solution, is the effect of the lease from one of the defendants to the grantor, under whose title the plaintiff claims, which is said to be a decisive circumstance, either to rebut the alleged mortgage originally, or to dissolve the relation created by it, if it ever existed; and that is a matter of law for the court. But why should the relation of landlord and tenant be thought inconsistent with that of mortgagor and mortgagee. Without it, a mortgagor is an occupant liable to be turned out at a moment’s warning; and it is hard to imagine why a stipulation for a certain term, at a rent equivalent to the interest, may not be reconciled to the intention of the principal contract.”

If a lease under such circumstances was not inconsistent with the relation between mortgagor and mortgagee, we cannot see how it could be supposed to be inconsistent, under like circumstances, with the relation of vendor and vendee. We think the court was right, therefore, in submitting to the jury, “ whether Hershey took the deed from the Snyders in the interest of Anderson, and to enable Anderson, by paying the $150 on the footing of the lease, to obtain title to the lot.” “ If Anderson in making this lease,” says the learned court, “ and Hershey in taking the lease, did not intend that Anderson was acknowledging that he had no title to the property, but it was for the purpose of carrying out that arrangement and of securing the payment of the $150, the giving of the lease would not, as a pure matter of law, prevent Anderson, or his heirs, from setting up a claim of title; and we leave to you to determine what his intention was, from all the facts in the ease, in the giving of the lease.” There was evidence in the cause from which the jury might well find that Anderson did not intend by the execution of the lease to abandon his title. He seems to have regarded the deed to Hershey as collateral security for the $150 which Hershey advanced in discharge of the purchase money; and Hershey himself, if the testimony of George Anderson and Amanda Harley is believed, regarded the $150 as a loan to Anderson for the purpose stated. Upon the evidence of these witnesses, although there was certainly much countervailing proof, the court' could not do otherwise than submit the question to the jury.

But it is said that Brinser was a bona fide purchaser without notice of any equity in Anderson, and therefore his title is not affected by it. This would seem to be true, unless by the possession of Anderson, Brinser was put upon inquiry as to the title under which the possession was maintained. Anderson was at the time in possession, under the terms of the paper w'hich has been denominated a lease, and if Brinser had actual knowledge of the lease, and had no knowledge of the facts relating to its execution, it is probable, under the ruling of this court in Leach v. Ansbacher, 55 Pa. 85, he might be regarded as an innocent purchaser. “ Nothing in the transaction,” says Mr. Justice Thompson, in the case cited, “ gave the least sign to put the purchaser on inquiry. The possession will, it is admitted ; but when the party is in possession under a lease, the knowledge of the lease dispenses with the inquiry of how the possession is held. That knowledge the agent had, and of the very terms of the lease. That was enough for him; he was not bound to inquire of the tenant in possession if the lease was fair or fraudulent, or whether there was a trust notwithstanding: Sugden on Vendors, 339; Hood v. Fahnestock, 1 Pa. 474.” But there is not the slightest evidence in this case .that Brinser knew of the lease, and we are not to assume a fact that has not been proven. If he had no knowledge of the lease, then, plainly, the possession put him upon inquiry as to the ground of that possession, and he is chargeable constructively with the knowledge of every fact which due and proper inquiry would have brought to light: Leonard’s App., 94 Pa. 168. The possession of Anderson was notice of the title un der which that possession was maintained.

No. 13 May Term 1889, Sup. Ct.; court below, No. 258 August Term 1885, C. P.

On August 31, 1888, the record of the foregoing cause, with a remittitur certifying the judgment pronounced by the Supreme Court therein, was filed in the court below.

At the second trial on Octbber 2, 1888, the plaintiffs presented evidence substantially to the same effect as that adduced by them upon the former trial, and, in addition, the following testimony respecting the authority of Washington R. Snyder to represent the other heirs of John Snyder, deceased, in making the sale to John Anderson: Margaret Snyder, the widow of said Washington R., testified that the heirs of John Snyder were four in number, viz.: Washington R. Snyder, Mrs. Fisher, Mrs. Winagle and Mrs. Snavely; that after the administrator of John Snyder had settled his account, the three daughters of the decedent verbally authorized their brother, Washington R., to sell the lots remaining unsold, among which was lot No. 258, which Washington R. sold to Anderson, in pursuance of this authority, for $300. Mrs. Winagle testified that she and her sisters had given Washington R. authority to sell their interests in the lots belonging to their father’s estate; that he had paid her her share of the purchase money of the lot sold by him to Anderson, and had offered her sisters their shares ; that her sisters, as well as her brother Washington R., were since deceased. Christian Fisher, the surviving husband of Mrs. Fisher, one of the heirs of John Snyder, testified that Washington R. Snyder represented the wife of the witness in making the sale to John Anderson, and paid Mrs. Fisher her share of the proceeds.

The defendant, in addition to substantially the same testimony that he had presented on the former trial, adduced testimony that Brinser, before purchasing the title of Hershey, was shown by the agent of the latter the lease of December 80, 1875, from Hershey to Anderson, and read it and knew its contents ; that, in accordance with the provisions of said lease, Anderson regularly paid the taxes upon the property; that these were levied in the name of fíershejq and Anderson took the receipts therefor in Hershey’s name.

Judgment reversed and a venire facias de novo awarded.

Before Paxson, C. J., Sterrett, Green, Clark, Williams, McCollum, and Mitchell, JJ.

At the conclusion of the testimony the court, SüfflOítTON, P. J., instructed the jury in part as follows, the omitted portions of the charge being chiefly a repetition of instructions given upon the former trial:

The plaintiffs claim that they purchased, that is to say, that John Anderson, whose heirs they are, purchased from Washington R. Snyder, acting for himself and for his sisters, who with him had inherited the property from their father. You have heard the evidence on this subject; the testimony of one of the sisters, that she authorized him to act for her, and that he gave her afterwards her share of the purchase money; the testimony of the husband of another of the sisters, that his wife authorized him to sell, and received her share of the purchase, money; the testimony of the mother as to the children having authorized him to sell; and from that testimony you are to determine whether the Snyder heirs, the sisters of Washington R. Snyder, did authorize him to make a contract. There is no pretence that they gave him any written authority, but plaintiffs claim, and you are to determine whether correctly or not, that they gave him authority by word of mouth to act as their agent in selling this property. You can separate that question so as to determine as to each one; whether one'gave, or the other; or whether they all gave it. If any of them gave him that authority, and made him their agent, then whatever he did under that agency would bind whoever authorized him. If they did not all authorize him, if any one or more did not authorize him, then they would not be bound by this action. The question is whether they made him an agent; if he made such a contract at all.

The plaintiffs then claim that Washington R. Snyder, being such an agent, did for himself and his sisters make a contract with John Anderson to sell him the property that is in controversy now, lot 258 in the town (then at least) of Portsmouth.

Then the defendant here produces a deed dated, I think, in 1858, a year after the time when it is claimed that this parol sale was made. The consideration in that deed is stated to be $150.

********

It is claimed by the defendant that Hershey got a clear title to the whole of the property by that deed, because, as they claim, there had been no sale made prior to that. That is for you to determine. If you find that there was a prior sale, then this deed could not destroy it, if you find on evidence of the nature we have stated, that there had been a prior sale.

But the defendant says further that even if there had been a prior sale made, that afterwards for some reason, being unable to pay the purchase money, or for some other reason, Anderson in some way gave up his rights, or lost his title; and as evidence of that he has produced the lease you have heard spoken of; and we are asked to say to you that the fact of that lease, the fact that Anderson rented the property from Hershey, goes to show that he did not any longer own it, and did not any longer claim to own it. He says that if a man is the owner of property he would not become the tenant, he would not rent it. That is a question for you to determine under all the evidence. We cannot say to you as a matter of law, that Anderson, from the mere fact of having made that lease, lost his rights, or that the mere fact of his having made a lease proves that he did not have any rights.

********

It is contended further, on the part of the defendant, that Brinser stands in a better position, if necessary, than Hershey; that when Brinser went to buy, he was shown this lease; and that he had a right to assume and conclude from that lease that Anderson had no title, and that, therefore, even if Anderson might have had the title, yet he cannot have any claim, or his heirs cannot, against Brinser; that if Anderson had a title, he should not have made a lease and put himself on paper, on record as it were, as being only a renter; and when Brinser saw by the title papers that Anderson was only a renter, he had a right to assume that he was nothing more, and to buy from the person who claimed to have the title.

I do not think that we can say to you as a matter of law that that is so in this case. When Bxinser bought, Anderson was dead. The lease did not purport to give any one possession but Anderson. When Brinser bought, these plaintiffs who are the heirs of Anderson, were in possession. As heirs they would have no right to the possession because of the lease. Therefore, when Brinser looked at the lease, and also at the fact that these plaintiffs were in possession, he had no legal right to assume before further inquiry that they were in possession because of the lease; and the rule of law is that when a person purchases a title to a property, real estate, from one who is not in possession of the property, when there are other persons in possession, in order to protect himself against any title that those who are in possession may have, he is bound to inquire from them, or to learn in some way, what this title or claim is, else he cannot by purchase cut out any claim they may have. So Brinser did not in this case get any advantage by means of his purchase from Hershey, that Hershey had not; he cannot claim any right here that Hershey could not have claimed, if Hershey were the defendant here instead of Brinser, if Hershey had not sold. You are to determine the case then so far as that part of it is concerned, as though no conveyance bad been made to Brinser, and as though the title were still in Hershey.

You are to find then from all the evidence in the case, whether there was a sale originally by Washington R. Snyder to Anderson, a parol sale; and in order to find that, as we have said, you are to be satisfied by clear and distinct and definite evidence what the contract was; the property that the contract was about; how much the purchase money was to be; whether the purchaser went into possession because of the contract, and whether he made valuable improvements because of his having made that purchase and gone into that possession. If you find those facts, they would amount to a valid contract and valid sale, although there was no writing.

If you find there was such a sale, then you are to find whether Washington R. Snyder, who made it, had authority from his sisters to make it for them as well as for himself. If he had authority from them, it would bind them as well as him. If he had no authority from them, then it would not be binding upon those who had not given him the authority to make it; and it would bind those who had given him authority.

If you find those facts, then you are to consider further whether under that sale Anderson did get possession, and paid the purchase money, more or less; because it would not depend upon the question whether he paid all the purchase money; but whether he paid purchase money on it, went into possession, and made valuable improvements. If yoii find that he did, then you are to determine further whether afterwards he gave up in any way his rights, whatever they were.

You are to determine the effect of the lease; was the lease made because Anderson had no further claim, or was it made because Hershey had purchased the right to the balance of the purchase money? and was that the way in which they undertook to secure the balance of the purchase money from Hershey to Anderson?

If you find that there was a sale, that Anderson did have a title, and that his title continued after the purchase by Hershey, and after the execution of the lease, then you are to determine further whether Anderson paid to Hershey the full amount that he was entitled to get, whether Anderson paid Hershey all that he was entitled to. If he did, if you should find those facts, your verdict then ought to be generally in favor of the plaintiffs.

If you find that the plaintiffs have a title by that parol sale, and that that title continued, and that all the purchase money that Hershey would under those facts have been entitled to has not been paid, then you would find a verdict for the plaintiffs, subject to the payment at such time as you fix, of whatever balance of the purchase money was due; and then, if the plaintiffs did not pay it within that time, they would lose their title.

I do not know that we could enlighten you any further in the case, gentlemen, except to answer the' points that have been presented to us by the defendant in writing. The defendant asks us to say to you,

1. There is not sufficient evidence that Washington R. Snyder had any authority from the heirs of John Snyder to sell to John Anderson, to be submitted to the jury, and the verdict must be for the defendant.

Answer: That instruction is refused. We have already called your attention to the ^evidence on that subject, and submitted it to you.1

2. There is no evidence that any sale made by Washington R. Snyder was ratified by tbe heirs of John Snyder but the deed to J. Hoffman Hershey is evidence that it was not, and the verdict must be for the defendant.

Answer: That instruction is refused.3

3. There is not sufficient to impeach the lease to submit to the jury as against the evidence of the subscribing witnesses.

Answers: To that we say, the evidence on the subject is legal evidence; and therefore we cannot withhold it from the jury; that is, gentlemen, the evidence given by the plaintiffs, that the lease was not signed by Anderson. You are to consider that evidence together with all the rest. In considering the evidence on that subject, you must also bear in mind the evidence of Hershey and the other witnesses on that subject.3

4. The evidence being without dispute that Jonas Brinser, the defendant, was shown, examined and knew the contents of the lease before he purchased, he was not bound to'inquire any further.

Answer: That instruction is refused. We have already said to you that, finding these persons in possession, it was his duty to inquire how they came to hold the possession; and, if he'did not do so, his purchasing would not take away any rights from them; their rights would remain whatever they were before; he would have no greater right against them than the person from whom he purchased.4

5. That under all the evidence in the case, the verdict must be for the defendant.

Answer: That is refused. The case must be passed upon by the jury on the principles which we have already stated.3

The verdict of the jury was for the plaintiffs for the premises described in the writ. Judgment having been entered thereon, the defendant took this appeal, specifying that the court erred:

1-5. In refusing to affirm defendant’s points.1 to 3

6. In submitting to the jury the question whether the lease was given to secure payment of the purchase money.

Mr. J. G. McAlarney, for the appellant:

1. The testimony will be read in vain to find the terms of the contract by Anderson with the Snyder heirs, the payment of any purchase money except the $40 mentioned in the receipt of October 22, 1857, that possession was taken in pursuance of the contract, what the improvements cost, or that they were not capable of being compensated in damages. The court should have charged the jury that there was nothing to take the case out of the statute of frauds, and should have directed a verdiet for the defendant: Overmeyer v. Koerner, 81* Pa. 517; Lord’s App., 105 Pa. 459; Hart v. Carroll, 85 Pa. 508; Anderson v. Brinser, ante 876; Ballard v. Ward, 89 Pa. 858.

2. The lease in evidence was notice to Brinser of Anderson’s title as tenant, and of Hershey’s as the landlord under whom Anderson held possession, and he was not bound to inquire further: Leach v. Ansbacher, 55 Pa. 85; Anderson v. Brinser, supra. That Anderson was dead and some of his heirs were in possession when Brinser bought, does not affect this point. Their possession was notice of nothing but the title of John Anderson, whatever it be. The plaintiffs claim by no other title. What John Anderson did binds them, and the question in the case is, did he have a title ? If he had none, the plaintiffs have none.

3. If this lease can be found not to be a lease, but an agreement for the payment of purchase money, without evidence, and without showing that Brinser knew it to be other than what it purported to be, then no man can safely buy land not in the actual possession of the vendor, and the law laid down in Wilson v. McCullough, 23 Pa. 440, and Sartwell v. Wilcox, 20 Pa. 123, is a delusion. The paper should have been construed by the court, and the jury should not have been allowed to pass upon its character without evidence: Stauffer v. Latshaw, 2 W. 167; Bradley v. Grosh, 8 Pa. 49; or without proof that Brinser knew when he bought what took place at its execution : Kostenbader v. Peters, 80 Pa. 438. The writing could not be altered by parol: Martin v. Berens, 67 Pa. 463; Eargood’s Est., 1 Pears. 399.

Mr. S. J. M. Me Carr ell (with him Mr. David Fleming), for the appellees:

1. The testimony fully warranted the jury in finding precedent authority in Washington R. Snyder to make the contract of sale with John Anderson. It results, then, as matter of law, that Hershey, taking the title by the deed of 1858 just as the Snyder heirs then had it, was bound to convey to Anderson upon payment of the balance of purchase money. That this was fully paid to Hershey by Anderson in his lifetime, is settled by the verdict. Anderson’s heirs are therefore the owners of the premises, and entitled to the possession, unless the alleged lease of 1875 stands in the way.

2. The jury would have been waranted by the testimony in finding that John A nderson never executed this lease. Whether they did so, we have no means of ascertaining. But even if executed by Anderson, it was not inconsistent with the theory of the plaintiffs, nor a bar to their recovery. The opinion delivered by this court, when the case was here before, fully warranted the careful instructions given the jury respecting this alleged lease and the effect to be given to it. The fact that Brinser saw it before he bought, can make no difference. The alleged lessee was not then in possession, but had been dead about a year. Brinser knew this, and it was his duty to inquire of the parties in possession whether they were there under the lease.

3. Knowledge of the existence of a lease, does not dispense with inquiry of the tenant before purchasing from the landlord. An extension or modification of an existing lease, or a subsequent purchase by the tenant of the landlord’s title, can certainly be enforced against the landlord’s vendee, who has not inquired of the tenant in possession respecting the nature and extent of his claim. It is only where the possessors of property have been given an opportunity to speak and have refused, or given false information, that they are estopped from showing the truth: [citing the same authorities cited under par. 4, argument for defendant in error, in Anderson v. Brinser, ante 376, with the addition of Howe v. Ream, 105 Pa. 543.]

Opinion,

Mr. Justice Clark :

When this case was here before, we said there was abundant proof of a contract for the sale of the lot in dispute by Washington R. Snyder to John Anderson, in the year 1857. “ The receipt, dated October 22, 1857,” we then said, “ taken with the other evidence in the cause, is full and complete upon this point; the terms of the contract are, we think, sufficiently shown; the lot is described as No. 258, in the borough of Middle-town, which may be regarded perhaps as a proper designation of the boundaries; the consideration was $800, a considerable part of which, if not all, was shown to have been paid; possession was taken immediately after and in pursuance of the purchase, and a dwelling house was erected upon it; the possession was open and notorious, and was continuously maintained for many years, and until legal proceedings were instituted to test the title.” The testimony at this trial on that branch of the case is substantially the same as before, and we adhere to the opinion we expressed on that .point at the former hearing. The testimony at the former trial has been supplemented, however, with satisfactory proof that Washington R. Snyder, in this transaction, acted not only for himself, but in the behalf of his sisters, who were the heirs of John Snyder, deceased, and that not only the purchase money paid by Anderson, but the money advanced by Hershey, was divided between the brother and sisters according to their respective interests. There was abundant evidence of the most satisfactory character to this effect, and the fact has been found by the jury.

We are of opinion, also, that there was evidence from which the jury might fairly infer that the deed to Hershey was only a security for the money advanced by him to pay out the purchase money, and that the writing denominated a lease, which, it is alleged, was subsequently executed between Hershey and Anderson, was a contract on the part of the defaulting vendee for the continuance of the possession on terms agreed upon, the rent, as it was paid, being applicable to the principal and interest of the purchase money. In view of what was said in our former opinion, we think it is not necessary to enter into any further discussion on this branch of the case.

The only remaining question for our consideration is whether or not Jonas Brinser is to be regarded as an innocent purchaser, and entitled to protection as such. Anderson died in 1883, and the conveyance by Hershey to Brinser was in 1884. Anderson’s heirs were in the actual possession of the premises in dispute at the time of the conveyance, and it is contended that their possession put Brinser upon inquiry as to the title, in virtue of which that possession was maintained, and that, having failed in this respect, he is affected with notice of that which a proper inquiry would have developed. The rule of law which is thus invoked is settled in a long line of cases, including Jaques v. Weeks, 7 W. 261; Maul v. Rider, 59 Pa. 167; Hottenstein v. Lerch, 104 Pa. 454; Rowe v. Ream, 105 Pa. 543. But it is said that Detweiler, who was the agent of Hershey in the transaction between him and Brinser, exhibited to Brinser the writing, in form of a lease by Hershey to Anderson; that the so-called lease was in itself explanatory of the possession, and Brinser was thereby relieved from further inquiry. Leach v. Ansbacher, 55 Pa. 85, is cited in support of this position. When this case was here before we said: “ Anderson was at the time in possession, under the terms of the paper which has been denominated a lease, and if Brinser had actual knowledge of the lease, and had no knowledge of the facts relating to its execution, it is probable under the ruling of this court in Leach v. Ansbacher, 55 Pa. 85, he might be regarded as an innocent purchaser. ‘Nothing in the transaction,5 says Mr. Justice Thompson, in the case cited, ‘ gave the least sign to put the purchaser upon inquiry. The possession will, it is admitted; but when the party is in possession under a lease, the knowledge of the lease dispenses with the inquiry of how the possession is held. That knowledge the agent had, and of the very terms of the lease. That was enough for him; he was not bound to inquire of the tenant in possession if the lease was fair or fraudulent, or whether there was a trust notwithstanding.5 55 But as it did not then appear that Brinser had any knowledge whatever of the lease, the rule suggested in Leach v. Ansbacher, as above, was not considered applicable to the case. We intimated, however, somewhat cautiously and doubtfully, that, if that fact had been established, it was probable “ the ruling laid down in Leach v. Ansbacher might apply.55 Upon a careful examination, however, the doubt which then existed in our mind as to the soundness of this view, has grown into a conviction that it cannot be sustained. The case of Leach v. Ansbacher was, without doubt, rightly decided, but the remarks of the learned Justice, who delivered the opinion quoted above, were not necessary to the decision of that case. In Leach v. Ansbacher it was found as a fact that Ansbacher was an innocent purchaser without notice, and that Leach himself, who had actual knowledge of the whole transaction, not only gave no notice of his claim of title, but assented to and approved of the sale. The same conclusion was irresistible, therefore, on other grounds, and in this sense it may be said that the remarks quoted were not necessary to the decision of the cause. The authorities cited do not declare the principle in support of which they are cited. Neither in Sugden on Vendors, nor in the case of Hood v. Fahnestock, 1 Pa. 470, do we find any such doctrine declared. Indeed, upon a somewhat careful examination of all the cases, we conclude that the language quoted from Leach v. Ansbacher is sustained neither by reason nor authority. Knowledge of. the existence of a lease will, of course, give constructive notice of all its provisions; but, the possession, apart from the lease, we think should be treated as notice of the possessor’s claim of title, whatever that claim may be, for the lease may be but the first of two or more successive rights acquired by the tenant. Whilst in the occupancy, under a lease for years, the tenant may have purchased under articles and entitled himself to an equity; or, indeed, he may have purchased the'legal estate in fee and failed to record his deed. Would it be supposed that a knowledge of the precedent lease would dispense with the duty of inquiry, and entitle a subsequent grantee to the protection of an innocent purchaser ? Or, the lease may have been the instrument of a base fraud; it may have been executed under the false and fraudulent pretence, to an illiterate person, that it was in fact a conveyance or a contract of sale. Would possession afford no protection in such a case? We think it would. In such cases the possession is the possessor’s only reliance, for he may be powerless to put his claim of title upon the record.

In Sugden on Vendors it is expressly stated, and numerous authorities cited in support of the statement, that if a tenant during his tenancy change his 'character by having agreed to purchase the estate, his possession amounts to notice of his equitable title as purchaser. Among the cases cited we find Daniels v. Davison, 16 Ves. 249, where it is held that the possession of a tenant, who had taken it under a lease for a term of years, and during the pendency of the lease made a contract with his lessor for the purchase of the reversion, was notice in itself to a subsequent purchaser (the lease being still unexpired), not only of a tenant’s interest under it, but likewise of his equitable title to the estate under his contract for the purchase. To the same effect is Allen v. Anthony, 1 Mer. 287; and our own cases of HotteDstein v. Lerch, supra, and Rowe v. Ream, supra.

Moreover, it now appears that Anderson, the lessee, was not himself in the possession. He had died two years or more before the sale to Brinser, and his widow and children were in the possession. The term of the lease had expired, and it would not, we think, be presumed in favor of a purchaser, in the absence of proof, that the heirs -were holding over.

We are of opinion that this case was properly tried, and

The judgment is affirmed.