Tankard v. . Tankard

His Honor ordered a new trial on the ground that the issues were confused, and he could render no judgment. From this order the plaintiff appealed, and says he is entitled to a judgment according to the verdict on the second and third issues, notwithstanding the verdict on the other issues and the facts admitted in the pleadings. Some of the issues submitted were badly constructed, and, with a single response, are without meaning. For example — "Did said O. H. P. Tankard purchase said land for benefit of said Ransom Tankard and his family, under an agreement with Ransom to the effect, and did said Ransom remain in possession under that agreement as long as he lived, or was the possession of said Ransom and his family permitted by said Oliver, as a gratuity on the part of said Oliver?" Answer — "Yes."

But this is not the principal difficulty in the way of the plaintiff. It appears from the findings on the issues that the vendor of the plaintiff in 1849 attended the sale of his brother's land, and by his representations suppressed bidding, and by express agreement purchased the land in trust for the benefit of his brother and family, and if we understand the substance of the findings, this agreement and understanding existed between the two brothers until Ransom's death in 1872.

The verdict on the second and third issues, on which plaintiff demands judgment, is that the plaintiff's vendor has not been paid the purchase money and charges on the land, and that the plaintiff is a bonafide purchaser for value, and without notice of defendant's equities. The plaintiff purchased in 1869. It is admitted by plaintiffs in his replication that said Ransom was in possession of the land, cultivating and otherwise using it from 1849 until his death in 1872, and that since his death the defendants have used it in the same way, and this is (56) substantially the finding of the jury on other issues. Here, then, was notice to the plaintiff at the time he purchased, of an actual possession by a third person, which gave him notice of all the equities of such third person. In Edwards v. Thompson, 71 N.C. 177, it was held by this Court that the possession of a tenant was notice of the landlord's equities to the purchaser, although he lived in another State and did not in fact have knowledge of the tenant's possession. Open, notorious, and exclusive possession puts a purchaser upon inquiry, and is notice of every fact which he could have learned by inquiry. The plaintiff therefore was a purchaser with notice of the defendants' ancestors' equitable rights to redeem the land, if in fact he had not made the payments, and still on the third issue the finding is that the plaintiff purchased without notice. We agree with His Honor not only that the issues were confused, but that the findings and facts admitted were inconsistent and contradictory, and that a new trial was properly ordered.

PER CURIAM. Judgment affirrmed [affirmed].

Cited: Tankard v. Tankard, 84 N.C. 228; Smith v. Fuller, 152 N.C. 12;Campbell v. Farley, 158 N.C. 44.