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 .
94 Neb. 621, 143 N. W. 944. The first cited case refers to Leach v. Ansbacher 55 Pa. 85, to the effect that, if a purchaser knows of a lease, he can attribute the lessee's possession to the lease, and is not charged with notice of any outstanding equities. But this latter case is overruled by Anderson v. Brinsmer, 129 Pa. 376, 6 L. R. A. 205, 11 Atl. 809, 18 Atl. 520.
24. Rogers v. Jones. 8 N. II. 264; Mcmechan v. Griffing, 3 Pick. (Mass.) 149; Hewes v. Wis-well, 8 Me. 94; Kelley v. Blakeney, -Tex. Civ. App. - , 172 S. W. 770, Contra, Crooks v. .Tonkins, 124 Iowa, 317, 104 Am. St. Rop. 82, 100 N. W. 82.
25. Antr, this section, noto 20.
2 R. P. - 66 purchaser is charged with notice of rights of the latter not based on the lease.26 -If the purchaser is, by the possession of one who entered under a lease, charged with notice of his rights, for instance, under a contract for the purchase of the fee simple title, he should be charged with notice of his rights under an actual conveyance.
There is a decision to the apparent effect that a purchaser cannot, by the possession of a tenant under a lease, be charged with notice of such tenant's rights, if the latter was, before the making of the lease, in possession as a trespasser.27 It is not clear why the purchaser should, in such case, be relieved from the duty of inquiry.
- (g) Continued possession by grantor. Some courts have adopted the view that the continuance in possession by a grantor, after conveying the land, is, like the possession of any other person, sufficient to put a subsequent purchaser on inquiry, and so affect him with notice of any rights in the grantor.28 Other courts take the view that, by executing a conveyance of property, the
26. See Flagg v. Mann, 2 Sumn. 486, 556; Matthews v. Demerritt, 22 Me. 312.
27. Emmons v. Murray, 16 N. H. 385.
28. Gerwin v. Shields, 187 Ala. 153, 65 So. 769; Pell v. Mc-elroy, 36 Cal. 268; Hlinois Cent. R. C. v. Mccullough, 59 111. 166; Springfield Homestead Ass'n v. Roll, 137 111. 205, 31 Am. St. Rep. 358, 27 N. E. 184 (semble). Ronan v. Bluhm, 173 111. 277, 50 N. E. 694; Hopkins v. Garrard, 7 B. Mon. (Ky.) 312; Kentland Coal & Coke Co. v. Elswick, 167 Ky. 593, 181 S. W. 181, (if conveyance procured by fraud); Mclaughlin v. Shepherd, 32 Me. 143, 52 Am. Dec. 646; Teal v. Scandinavian American Bank of Grand Forks, 114 Minn. 435, 131 N. W. 486; Ludowese v. Amidon, 124 Minn. 288, 144 N. W. 965; Smith v. Myers, 56 Neb. 503, 76 N. W. 108; Seymour v. Mckinstry, 106 N. Y. 230, 12 N. E. 348, 14 N. E. 94 (semble); Grimstone v. Carter, 3 Paige (N. Y.) 421, 24 Am. Dec. 230; (But see Cook v. Travis, 20 N. Y. 400); O'toole v. Omlie, 8 N. D. 444, 79 N. W. 849; Mani-gault v. Lofton, 78 S. C. 499, 59 N. E. 534; Pippin v. Richards, 146 Wis. 69, 130 N. W- 872; In Hedlin v. Lee, 21 N. D. 495, 131 N. W. 390, it was held that a purchaser from one who claimed under an invalid foreclosure sale was, by the continued possession grantor in effect declares that he thereby disposes of all his rights therein, and that a subsequent purchaser from the grantee may accordingly assume that, if the grantor retains possession, it is not by force of any interest retained by him, but merely by the sufferance of the grantee, and that the purchaser is consequently relieved from any duty of making inquiry as to his rights,29 unless, according to some cases, his possession continues a considerable period after the delivery of the conveyance.30 One difficulty with this latter view is that it imputes to a conveyance an effect as a declaration by the grantor, for the purpose of raising an estoppel against him, which is not necessarily in accord with the understanding of the parties or with the legal effect of the conveyance. One executing, for instance, a of the former owner, charged with notice if the invalidity of the sale.
29. Morgan v. Mccuin, 96 Ark. 512, 132 S. W. 459; Malette v. Wright, 120 Ga. 735, 48 S. E. 229; Koon v. Trarnel, 71 Iowa, 132, 32 N. W. 243; Trulin v. Plested, 178 Iowa, 220, 159 N. W. 633; Mcneil v. Jordan, 28 Kan. 7; Bloomer v. Henderson, 8 Mich. 395, 77 Am. Dec. 453; Mc-ewen v. Keary, 178 Mich. 6, L. R. A. 1916B 1063, 144 N. W. 524; Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Vankeuren v. Central R. Co. of New Jersey, 38 N. J. L. 165; Rankin v. Coar, 46 N. J. Eq. 566, 11 L. R. A. 661, 22 Atl. 177; Cook v. Travis, 20 N. Y. 400; Red River Valley Land Investment Co. v. Smith, 7 N. D. 236, 74 N. W. 194; Rowsey v. Jamison, 46 Okla. 780, 149 Pac. 880; La Forest v. Downer, 63 Ore. 176, 126 Pac. 995; Scott v. Gallagher, 14 Serg. & R. (Pa.) 333;
Eylar v. Eylar, 60 Tex. 315; Love v. Breedlove, 75 Tex. 649, 13 S. W. 22; Murry v. Carlton. 65 Wash. 364, 44 L. R. A. (N. S.) 314, 118 Pac. 332. But the purchaser can obviously not be pro tected if a lack of good faith on his part appears otherwise. Smith v. Phillips, 9 Okla. 297, 60 Pac. 117.
On apparently the same theory it has leen held that the continuance in possession of one whose title has been divested by judicial decree does not affect with notice one purchasing from the person in whom title is vested by the decree. Dawson v. Danbury Bank, 15 Mich. 489: Harms v. Coryell, 177 111. 496, 53 N. E. 87.
30. Turman v. Bell, 4 Ark. 273, 26 Am. St. Rep. 35, 15 S. W. 886; American Bldg. & Loan Ass'n v. Warren, 101 Ark. 163, 141 S. W. 765; Bennett v. Robinson, 27 Mich. 26; Stevens v. Hulin, 53 i-oiiveyance of a fee simple title, may perfectly well ae-quire, by the same or a subsequent transaction, an equity against the grantee or a lease for a limited period, and it is difficult to see why his conveyance should be ro-garded as a declaration that he has not acquired, or will not acquire, such an interest, or why a subsequent purchaser should be justified in assuming, for the purpose of being relieved from any duty of inquiry, that the grantor's continuance in possession is wrongful rather than rightful.
It has been decided that if A and B being in possession of land, A conveys the land to B, and they subsequently both remain in possession, the possession of B does not charge a purchaser from A with notice of B's title.31 If, however, in such case, B assumes control of the property, A remaining thereon only in a subordinate capacity, B's possession might, it would seem, affect the purchaser from A with notice of B's title.