This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
71. Fair v. Stevenot, 29 Cal. 486; Riley v. Quigley, 50 111. 304.
73. Yates v. Hurd, 8 Colo. 343, 8 Pac. 575; Barchent v. Sellick, 89 Minn. 513, 95 N. W. 458; Trumpower v. Marcey, 92 Mich. 529, 52 N. W. 999; Cavin v. Middleton, 63 Iowa, 618, 19 N. W. 805; Losey v. Simpson, 11 N. J. Eq. 246.
74. Cornell v. Maltby, 165 N. Y. 557, 59 N. E. 291; Bowles v. Belt. - Tex. Civ. App. - , 159 S. W. 885; First Nat. Bank v. Chafee, 98 Wis. 42, 73 N. W. 318; Teal v. Scandinavian American Bank, 114 Minn. 435, 131 N. W. 486.
75. Austin v. Southern House
In every case, it is conceived, a purchaser put on inquiry by another's possession, must make inquiry of that very person as to the nature of his rights, and he does not fulfil his duty if he makes inquiry merely of others.76
One who has the record title to land put in the name of another, in order to conceal his own interest therein from his creditors, has no equity, it has been held, which he can assert as against an innocent purchaser from such other, even though he is himself in the actual possession of the property.77
- (b) Character of the possession. What acts and circumstances may or may not constitute possession for this purpose are necessarily varied, and depend to some extent upon the nature and locality of the property, the use to which it may be applied, and the situation of the parties.78 It is, in the final analysis, a question of fact in each case, whether there is such possession of the property by A as to affect B with notice thereof,79 and that this is so must be recognized in seeking to harmonize the numerous decisions.
Building & Loan Ass'n, 122 Ga. 439, 50 S. E. 382.
76. Lestrade v. Barth, 19 Cal. 660; Williams v. Brown, 14 111. 200; Allen v. Caldwell, 55 Mich. 8, 20 N. W. 692; Sailor v. Hert-zcg, 4 Whart. (Pa.) 259; Can-field v. Hard, 58 Vt. 217, 2 Atl. 136.
77. Gill v. Hardin, 48 Ark. 409, 3 S. W. 519; Groton Sav. Bank v. Batty, 30 N. J. Eq. 126; Alliance Trust Co. v. O'brien, 32 Ore. 333, 51 Pac. 640. But the creditors might, it seems, assert that the purchaser was charged with notice by the possession. Hood v. Fahnestock, 1 Pa. St. 470.
78. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 35 L. Ed. 1063; Morrison v. Kelly, 22 111. 610, 74 Am. Dec. 169. See also Tate v. Pensacola, Gulf, Land & Development Co., 37 Fla. 439, 53 Am. St. Rep. 251, 20 So. 542; Bolland v. O'neal. 81 Minn. 15, 83 Am. St. Rep. 362, 83 N. W. 471. See Fraser v. Fleming, 190 Mich. 238, 157 N. W. 269.
79. Emeric v. Alvarado, 90 Cal. 444, 471, 27 Pac. 356; Helm v. Kaddatz, 107 111. App. 413; Hall v. Hilley, 134 Ga. 77, 67 S. E. 428; Hottenstein v. Lerch, 104 Pa. St. 154; Betts v. Letcher, 1 S. D. 182, 46 N. W. 193; Ponton v. Ballard, 24 Tex. 619.
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Sold, the possession by a third person of the other part would not usually be calculated to put the purchaser on inquiry as to such third person's rights.84
The possession, to put a purchaser on inquiry, must, it is said, be actually existent at the time of the purchase, and the purchaser is not affected by a possession which has been abandoned before that time.85 But the courts do not regard actual personal occupation of the land as necessary to constitute possession for this purpose, it being usually considered sufficient that an inspection of the land would indicate, or at least suggest, that it is habitually utilized for agricultural or other purposes, even though no person is actually in the occupation of the land at the time.86 Some of the courts have, it is conceived, gone somewhat far in regarding a purchaser as put on inquiry with reference to an adverse claim by the existence of indications on the land that it has been utilized in a particular way. That, for instance, crops have been raised on the premises, that timber has been taken therefrom, or that the land has been fenced, furnishes practically no information to the purchaser as to an adverse claim, and to hold that it puts him on inquiry as to such a claim means that he must, in the first place, assume that such prior use of the land was by some person other than his vendor or the latter's predecessor in title, and must then, by inquiry of the owners of neighboring property, endeavor to ascertain the identity of such person, and, having ascertained his identity, must inquire as to the character of his claim. This occasionally places a heavy burden upon the intending purchaser, for the protection, ordinarily, of one whose adverse claim might, with proper diligence, have been made a matter of record.
84. Jeffersouville, etc., R. Co. v. Oyler, 82 Ind. 394; Cincinnati, I. & St. L. & C. R. Co. v. Smith, 127 Ind. 461, 26 N. E. 109; Bil-lington v. Welsh, 5 Binn. (Pa.) 132, 6 Am. Dec. 406. See Wade v. Hiatt, 32 N. C. 302; Robertson v. Smith, 191 Mich. 660, Ann. Cas. 1918D, 145, 158 N. W. 207.
85. O'neal v. Prestwood, 153 Ala. 443, 45 So. 251; Aden v. Vallejo, 139 Cal. 165, 72 Pac. 905; Hewes v. Wiswell, 8 Me. 94; Roussain v. Norton, 53 Minn. 560, 55 N. W. 747; Hiller v. Jones, 66 Miss. 636. 6 So. 465; Bingham v. Kirkland, 34 N. J. Eq. 229; Bost v. Setzer, 87 N. C. 187; Boggs v. Warner, 0
Watts & S. (Pa.) 474; King v. Porter, - W. Va - , 71 S. E. 202.
86. Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 35 L. Ed. 1063; Sloss-sheffieid Steel- & Iron Co. v. Taff. 178 Ala. 382, 59 So. 658; Colburn v. Gilcrest, 6C Colo. 92, 151 Pac. 909; Thomas v. Burnett, 128 111. 37, 4 L. R. A. 222, 21 N. E. 352: Rodgers v. Turpin, 105 Iowa, 183, 74 N. W. 925; Kendall v. Lawrence, 22 Pick. (Mass.) 540; Krider v. Lafferty, 1 Whart. (Pa.) 303; Chapman v. Chapman, 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813.