Majority
p. 163Jackson, ex dem. Bonnell and others, against Sharp.
Headnote
F. entered in. ofia^dTwTthí “fterwarásen^ tered into_ a t., who cove^ted to the contract afterwards received a deed from November, 1807, and, afterwards, a iced from B., the patentee, and true owner, in September, 1808, which was duly recorded in October, 1808. A previous deed had been given by B,, the patentee, in September, 1807, to G., but which was not registered until April, 1811.It was held that the "original possession of A. being without title, was to be deemed the possession of B., the patentee, and that the possession of S., under the covenant from A. to T., was not adverse.
The doctrine of adverse possession is to be taken strictly, and must be made out by clear and positive proof, and not by inference. Every presumption is in favour of a possession in subordination to the title-of the true owner.
If a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered deed, it is the same to him as if such deed had been registered; and if the agent of such subsequent purchaser, at the time of making the purchase, knows of the prior unregistered deed, it is the same as notice to his principal.
THIS was an action of ejectment, brought to recover part of lot "No. 72., in the township of Aurelius, in the county of Cayuga. The cause was tried at the Cayuga circuit, before Mr. Justice Yates, the 11th of June, 1811.
The plaintiff gave in evidence, a patent from John Bonnell, one of the lessors of the plaintiff, for lot No. 72., in Aurelius, dated the 8th July, 1790, and a deed from Bonnell to Andrew Goodyear, the other lessor, dated 11th September, 1807, Which was recorded the 25th April, 1811. The possession by the defendant of the premises in question was also proved.
The defendant gave in evidence a power of attorney, dated 7th April, 1805, duly acknowledged, and recorded the 17th October,
p. 164
1806, from Stephen Thorn, authorizing Joseph Grover to sell the w])0]e 0f ]0t No. 72., in Aurelius, &c.; and articles of agreement between Joseph Grover, as attorney of Thorn, and Samuel and Abraham Foster, by which Thorn, by his said attorney, covenanted to convey one hundred acres of lot No. 72., and which included the premises in question, at a future day, to S. and A. Foster, for the sum of 500 dollars, to be paid at a future day. This agreement, with the premises, was, afterwards, by a written endorsement, under the hands and seals of S. and A. Foster, dated the 26th of April, 1805, assigned to Sharp, the defendant. A deed was also read in evidence, dated the 26th of November, 1807, from Thorn to the defendant, for 80 acres, part of lot No. 72., being the premises in question, for the consideration of 400 dollars.
John Haring, a witness, testified, that the Fosters were in possession of the premises, a year or two before the date of the agreement with Thorn, but under whom they claimed title he could not say, but supposed it was under one Carpenter, who claimed to be the owner; that the title to the lot was frequently questioned; that the defendant had said that he had doubts or fears about the title. About three years before the trial, the witness went to Virginia to purchase the lot of Bonnell, for the occupants ; Bonnell was at Clarksburgh, and refused to convey the lot, saying that he had conveyed to Goodyear. The witness, on his return, informed Grover of the answer of Bonnell.
Abraham Foster testified, that he entered on the land without title; that he spoke to Joseph Grover to procure a title, who told him, about a year afterwards, that Thorn had a title from the soldier Bonnell.
Another witness testified, that he told the defendant that Goodyear had all the title to the premises which was necessary; and that the defendant, on the 12th April, 1810, said that he never believed in his former title.
The defendant gave in evidence a deed from Bonnell to the defendant and the other occupants, of the whole of lot No. 72., dated 29th September, 1808, and recorded the 12th October, 1808, having been proved and acknowledged, on the day of its date, before a notary public, in Harrison county, in Virginia. Joseph Grover was a witness to the execution of this deed, which expressed a consideration of 500 dollars.
p. 165The lessors of the plaintiffhaving shown a regular paper title, the only questions are, 1. As to a subsisting adverse possession at the time of the conveyance; and, 2. As to the effect of the prior registry of the deed from Bonnell to the defendant. 1. The possession commenced under Foster, who entered without any claim of title. To constitute an adverse possession, it must be adverse at its commencement, and so continued. A person who enters without claiming title, is deemed to hold for the rightful owner.[1] Prior to the deed to Goodyear, the lessor, there was no person in possession, pretending to hold under a deed. There was nothing more than a contract for a deed, from a person who had no title. Again, both parties, in this case, claim under Bonnell; and there can be no adverse possession where both persons claim under the same title.[2] 1. As to the adverse possession, the true inquiry is, how the tenant held at the time of the deed to the lessor. If he claims to hold under a title different from, or hostile to that of the lessor, it is sufficient. No matter whether such title be valid or spurious. In Jackson v. Todd,[5] the defendant came into possession under Cady, who held under an agreement with Isaacs. A person who holds possession under an agreement for a deed, may set it up in his defence against an action of ejectment.[6] If a possession is given under a contract for a deed, though it is only an equitable title, it is good as against the owner; but if he give a deed to a third person, such person, haying the legal as well as
labes Gould testified, that Grover requested him to go to Vtrginia and buy the lot, and said, that from all accounts, Goodyear had got the right soldier.
A verdict was taken for the plaintiff) by consent, subject to the opinion of the court, on a case containing the above facts.
Sill, for the plaintiff.
2. The prior registry of the deed to the defendant cannot avail Mm; since he had notice of the deed to Goodyear, at the time of the purchase; for Grover must be deemed to be the agent of the defendant;[3] and there was a direct notice to him of the deed to Goodyear, before the purchase.[4]
Russell, contra.
p. 166equitable title, must prevail against him who has only an equitable t;tje> 2. The deed from Bonnell to the defendant was first registered. The act (sess. 17. c. 1.) declares all deeds relating to the military bounty lands, which are not recorded, fraudulent and void against a subsequent purchaser, for a valuable consideration, unless first recorded. The deed from the patentee being first recorded, nothing can defeat its preference; not even a notice, for the language of this act is different from that relative to the registering of mortgages. If a party who has a deed for a valuable consideration, gets it first recorded, it will be valid. If a notice is to have any effect, it must be clearly proved, and be direct, fair and bona fide. The notice was to Grover not to Sharp, and at the time of the notice to Grover, Goodyear disclaimed holding under the deed, which was concealed. A notice, under these circumstances, can have no effect. Besides, Grover was the agent of Thorn, not of Sharp, who never had notice. Cady, in reply, observed, that to render the case analogous to that of Jackson v. Todd, it should have been shown that there was a deed from Bonnell to Thorn. If Thorn had entered, declaring that he had a deed from Bonnell, when, in fact, he had none, his possession would not have been adverse. Though Thorn, supposing he should get a deed from Bonnell, promised to convey to Foster; yet Bonnell, though he had covenanted to convey to Thorn, might give a deed to Goodyear, who would have a valid and legal title. It must be inferred, from the facts in the case, that Grover went to Bonnell as the agent of Sharp, who must, therefore, be charged with the notice to his agent.
To entitle the plaintiff to recover upon this case, two propositions must, be established; 1. That the deed from Bonnell to Goodyear was not void by reason of an adverse possession existing at the time; 2. That notice of that deed destroyed the effect of the prior registry of the deed from Bonnell to the defendant. ■ '
1. When the patentee, Bonnell, executed his deed to Goodyear, the defendant was in possession, under a covenant from Stephen Thorn to the Fosters, to convey to them the premises, upon a
p. 167
consideration to be paid. The Fosters entered upon the premises, without title, as one of them confessed, and he spoke to Grover, the agent of Thorn, to procure a title. When he first spoke to Grover, the latter did not say that Thom had any title ; but, about a year afterwards, Grover told him that Thorn had a deed from the soldier Bonnell. The defendant entered under an assignment of the covenant to the Fosters. Whatever pretence or colour of title the defendanthad, at the time of the execution of the deed to Goodyear, it was avowedly under Bonnell, the patentee. The original possession by the Fosters being without any pretence of title, was to be deemed the possession of Bonnell, the true owner; and I think it would be carrying the doctrine of adverse possession beyond the authorities, and beyond the truth of the case, to consider the covenant of Thorn, who said, or, what is the same thing, whose agent said, that he held under Bonnell, as amounting to an ouster of Bonnell, and an act in denial of, and in hostility to, his right. What kind of right or title Thorn pretended to have from Bonnell does not appear. His right might have been under a mere covenant or contract to convey, such as he afterwards made with the Fosters; and we have no ground to infer that he had any better pretension, when Bonnell conveyed to Goodyear, in September, 1807. It is a settled rule, that the doctrine of ad- • verse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favour of possession in subordination to the title of the true owner. It is not unusual for persons to contract to convey at a future day, in expectation of a capacity to convey by the given day, though they have no title at the time of the contract. The Fosters were originally in possession, in judgment of law, under Bonnell; and they never meant to change that character, and to oust Bonnell, by taking the covenant from Thorn. They took it, undoubtedly, under the impression that Thom then was, or would thereafter be, authorized to convey the title of Bonnell; and the defendant, as the assignee of the Fosters, must be deemed to have succeeded to the possession under the same impression. Thorn was never in possession, and, of course, there was no adverse possession to be imputed to him. Fosters and the defendant held possession, without setting up any adverse title, and under a contract for a title to be derived from Bonnell. To consider
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Bonnell as thereby disseised or dispossessed of his freehold, and have lost his capacity to convey the land, is inadmissible. Adverse possession, so as to defeat the conveyance of the true owner must be made out, clearly and positively; and so the court said in the case of Wickham v. Concklin, ( 8 Johns. Rep. 220 .)
2. The next question is, whether this deed was superseded by the subsequent deed from Bonnell to the defendant, of September, 1808, and which was first recorded.
There is no doubt that if a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered deed, it is the same to him as if it had been registered. It is not a secret conveyance by which he can be prejudiced or defrauded; and if he purchases with knowledge of such prior deed, and with the expectation of getting his deed first registered, he does an act against good conscience, and in abuse of the statute, which was made to prevent, and not to protect, fraud. It is, therefore, a well settled principle, that such notice supplies the place of a prior registry, and the only question here is, whether the defendant is chargeable with such notice.
In July, 1808, and about three months before the defendant’s deed, Johú Haring went, as an agent for the defendant and the other occupants of the lot, to purchase the lot of Bonnell. Bonnell refused to sell, and told him that he had abeady conveyed the lot to Goodyear, one of the lessors of the plaintiff. Here, then, was a direct and positive notice to the agent of the defendant. Haring communicated this fact to Joseph Grover, who, in September following, went, as agent for the defendant, and the other occupants, to purchase, and succeeded in his mission. It is to be inferred that Grover was the agent also of the defendant, and, as such, made the purchase, because he had before acted as agent for Thorn, in selling the lot, and because he applied to Gould to go to the patentee and make the purchase, and, lastly, because we find him in Virginia at the time of the purchase, and a witness to the execution of- the deed. No doubt he was the agent who made the purchase, and from whom the deed was afterwards received. Here we have then notice of the prior deed given to two successive agents of the defendant, and both employed for the very purpose of making the purchase. The notice in each case was direct and positive, and given prior to the purchase. Can we possibly doubt, after this, whether the knowledge of the prior
p. 169
deed was communicated from these agents to their principal, and especially by the first agent, whose object was defeated, in consequence of the very fact of the prior deed? The defendant confessed, in 1810, that "he never believed in his former title." But we need not bring home the notice to the defendant, for it is a well settled rule, that notice to the agent is notice to his principal. This has been frequently so ruled, in respect to the very question , of a prior unregistered deed, and in respect to the agent employed to effect the purchase. (Le Neve v. Le Neve, 3 Aik. 646 . 1 Ves. 64. Amb. 436. S. C. Lord Forbes v. Deniston, and other cases therein cited, 13 Vesey, 120.)
We are, accordingly, of opinion, that the plaintiff is entitled to judgment.