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 .
Before notice, he must, it lias been held, state such claim, with the grounds thereof, in his pleading.83
If the purchaser makes improvements on the property before receiving notice of the adverse claim, he is entitled, as a condition of recovery of the land by the claimant, to reimbursement of the cost of the improvements as well as of the payments innocently made by him.84 this according with the rule ordinarily applied in equity in favor of an innocent purchaser.85
- (f) Payment by note. The fact that the purchaser has given a non-negotiable note for the price does not constitute him a purchaser for value, since he may be relieved therefrom in equity upon a showing that the title to the property has failed.85a
If the purchaser gives a negotiable note on account of the price, and such note is transferred to a bona fide holder for value, the purchaser of the property, though he subsequently receives notice of an adverse claim to the property, cannot avoid payment of the note, and he is consequently in the position of one who has paid value.80 But if he receives notice before the note is
83. Freeman v. Pullen, 130 Ala. 653, 31 So. 451; Mackey v. Bowles, 98 Ga. 730, 25 S. E. 834; Donal-son v. Thomason, 137 Ga. 848, 74 S. E. 762; Webb v. Bailey, 41 W. Va. 463, 23 S. E. 644. And see Freeman v. Pullen, 130 Ala. 653, 31 So. 451.
84. Lewis v. Phillips, 17 Ind. 408; Florence Sewing Mach. Co. v Zeigler, 58 Ala. 221; Youst v. Martin, 3 Serg. & R. (Pa.) 423.
85. Ante, Sec. 274.
85a. Marchbanks v. Banks, 44 Ark. 48; Kitteridge v. Chapman, 36 Iowa, 348; Blanchard v. Tyler, 12 Mich. 339, 86 Am. Dec. 57; Haughwout v. Murphy, 22 N. J. Eq. 531; Jewett v. Palmer, 7 Johns. Ch. (N. Y.) 65, 11 Am.
Dec. 401; Wood v. Rayburn, 18 Ore. 3, 22 Pac. 521 (semble); Union Canal Co. v. Young, 1 Whart. (Pa.) 410, 30 Am. Dec. 212; Beck v. Ulrich, 13 Pa. St. 636, 53 Am. Dec. 507; Lamoille County Sav. Bank & Trust Co. v. Belden, 90 Vt. 535, 98 Atl. 1002.
86. Beebe Stave Co. v. Austin. 92 Ark. 248, 135 Am. St. Rep. 172, 122 S. W. 482; Davis v. Ward, 109 Cal. 186, 50 Am. St. Rep. 29, 41 Pac. 1010; Donaldson v. Thomason, 137 Ga. 848, 74 S. E. 762; Partridge v. Chapman, 81 111. 137; Rush v. Mitchell, 71 Iowa, 333, 32 N. W. 367; Daugherty v. Northern Coal & Coke Co., 174 Ky. 423, 192 S.
Negotiated, he is, it seems, in a position to prevent the subsequent negotiation of the note, and can not thereafter pay the note, and assert that, by reason of such payment, he is a bona fide purchaser for value.87 Occasionally it appears to have been considered that the purchaser, if he has given a negotiable note, is protected as a purchaser for value, even though it has not been negotiated at the time of his receipt of notice of an adverse claim.88
- (&) Payment without acquiring legal title. The cases but rarely consider whether one who pays the agreed consideration, without at the time taking a conveyance, is to be protected as against a prior unrecorded conveyance of which he has at the time no notice. He acquires at most in such case merely an equitable as distinguished from a legal title, and whether the holder of an equitable title is to be regarded as within the protection of the recording act is a question of the construction of such act.89 Furthermore, if the recording act protects a subsequent purchaser only when his conveyance is first recorded,00 one paying for land without at the time taking a conveyance of the legal title would not be protected unless he has a contract which is susceptible of record as a conveyance, and this is first recorded, or, in case such a contract is not regarded as a conveyance within the statute, as might well be the case, unless he subsequently obtains a conveyance, and this is first recorded. If a conveyance of the legal title is thus subsequently obtained by the purchaser after he has acquired notice of the prior unrecorded conveyw. 501; Digby v. Jones, 67 Mo. 104.
87. Baldwin v. Sager, 70 111. 503; Freeman v. Denning, 3 Sandf. Ch. (N. Y.) 327.
88. Tillman v. Heller, 78 Tex. 597, 11 L. R. A. 628, 22 Am. St. Rep. 77, 14 S. W. 700; Dodd v. Gaines, 82 Tex. 429, 18 S. W.
618; Citizens' Bank of Parker v. Shaw, 14 S. D. 197, 84 N. W. 779. But as to Texas see Nellius v. Thompson Bros. Lumber Co.,- Tex. Civ. App - , 156 S. W. 259.
89. Ante. Sec. 567(m), notes 32, 33.
90. Ante, Sec. 567 (m), notes 11-12.
Ance, there is some analogy to the case of the holder of a later equity who, after acquiring notice of an earlier equity, obtains the legal title.91 That is, the grantee in the prior conveyance might be considered, as regards the subsequent purchaser, as having merely an equity, and adopting such a view, the question whether the subsequent purchaser could secure priority by obtaining a conveyance with notice of the prior unrecorded conveyance would appear to be determinable with reference to the rule adopted in that jurisdiction, as between the holders of equities.92