Jonson was unquestionably the owner of the premises in dispute, when the defendant first became connected with the title; and, on the 27th of November, 1854, conveyed it to Charles Cavalli, the plaintiff's devisor, by deed, "saving all rights, if any, under a contract from G.W. Jonson to Isaac L. Schreder, dated September 15, 1851, assigned to said Cavalli by said Schreder in said premises, this day canceled;" and excepting, also, "all taxes since December 17, 1849, from the operation of the covenant of warranty." It, therefore, would seem to follow that if the defendant acquired no substantial right under the contract between Jonson and Schreder, which ought to be respected, it would be apparent that the recovery in favor of the plaintiff should be affirmed.
It appears that, for many years prior to the origin of the present dispute, the defendant was the owner of premises adjoining those in controversy. To avoid some question of encroachment the defendant, on the 12th of December, 1849, agreed with George W. Jonson to purchase of him two feet of land, then adjoining the defendant's own, which Jonson conveyed to him by deed, dated May 25, 1857. *Page 516 On the 17th of December, 1849, Jonson contracted with Schreder to sell him thirty-five feet of land next northerly, and adjoining the premises of the defendant, and Schreder took immediate possession. As soon as Schreder got his contract from Jonson he, for the consideration of fifty dollars, assigned all his right, under the contract, to the conveyance of five of the thirty-five feet next adjoining the premises of the defendant to him; and, thereafter, Schreder occupied thirty feet, and the defendant fenced in, took possession of the five feet, improved it and in that actual possession has since remained, claiming to be owner. Of all this Jonson aud Charles Cavalli had actual knowledge. At the time of the purchase, the defendant paid Schreder ten dollars of the purchase-money, and the latter owing the former $41.75, on the 2d of April, 1850, on that day gave the defendant his note for that amount. On the 15th of September, 1851, Schreder and Jonson made a new contract for the sale of the thirty-five feet of land, by which the time of the payment of the purchase-price was extended. At this time Jonson knew that Schreder had sold five feet of the thirty-five feet to the defendant, and that he was then, and had been, in the actual possession thereof. Afterward, and on the 20th of April, 1852, the defendant paid Schreder fifteen dollars more on the purchase-money of the five feet of land; and on the 26th of May, 1852, Schreder assigned to Charles Cavalli, the plaintiff's devisor, "all his right, title, interest, claim and demand in and to" the contract of September 15, 1851, and the premises therein described. Cavalli then knew of the sale of the five feet to the defendant, and afterward paid Jonson the balance due him on the Schreder contract, and took a deed, subject to all the rights before mentioned, took actual possession of the thirty feet which Schreder had, and then brought his action to recover the five feet in the possession of the defendant, and recovered in the court below. Upon the facts appearing in the case, I think the plaintiff ought not to recover.
Whatever Jonson might have been entitled to, if he had *Page 517 brought the action because of the non-performance of the contract by Schreder, I think it very obvious that Charles Cavalli and his successor must submit to all the equities existing between the defendant and Schreder; and Schreder, as seems very plain, could not have recovered of the defendant the premises in question. It is a very plain proposition of law, that a person in the actual possession of real estate gives notice to all the world proposing to deal with it of his legal and equitable rights, and every one deals at his peril, if he fails to make due inquiry. (Cook v.Travis, 20 N.Y., 400; Williamson v. Brown, 15 id., 354.) In this case, Charles Cavalli had actual notice of the rights of the defendant, and with perfect knowledge he assumed the place of Schreder, and his successor brought her action upon that title, and it cannot be sustained in law or equity.
Assuming, as we must, that Schreder had brought the action, it would have appeared that he had sold the premises in dispute to the defendant for an adequate consideration, and put him in actual possession; that the defendant had paid him in cash more than half the consideration to be paid; and that Schreder, in fact, owed him more than the other half which was unpaid. It seems very plain that, under no condition of the law, as it is now well understood, could there have been, properly, any recovery against the defendant.
The plaintiff, who stands in the place of Schreder, and has no greater right than he had, must abide the same fate.
A new trial must be granted, with costs to abide the event.
All concur.
Judgment reversed *Page 518