Note by
McWhorter, Judge.I have to dissent from the opinion of Judge Brannon handed down in this case, and concur with the conclusion of Judge English, and add the following note :
The title bond from Perry A. Cline and Jacob Cline to Anderson .Hatfield, dated August 24, 1869, which is relied upon by the appellants, since the filing of the amended answer, for their title to the Jacob Cline half interest, was witnessed by two witnesses, and was a recordable instrument under our statutes, and the evidence shows no reason for not recording the same. The record shows, by the affidavits of the trustees and their attorneys, that neither'they nor their attorneys knew of the existence of this title bond until long after the bringing of this suit, and the conveyances made by Hatfield all refer back to the recorded deed from Perry A. Cline to Hatfield, conveying only his half interest. But the answer alleges the genuineness óf the title bond, and the special replication of the plaintiff denying the bond is not sworn to nor accompanied *430by an affidavit denying- the same, and its genuineness, under our statute, is not denied. Code W. Va., c. 125, s. 40. Can Ellison be charged with notice of the title bond when he took the conveyance for half the land from the two sons of Jabob Cline ? The defendants, the title bond being- considered as genuine, had under it an unrecorded right to the whole of the Grapevine tract. They also had a recorded right to the Perry A. Cline undivided half of the Grapevine tract by virtue of the deed from the said Cline to Hatfield dated March 23, 1877. It is claimed by the defendants that Ellison had notice of their right under the title bond by their possession of the property. The plaintiff denies that the defendants had possession of the property, and from the evidence shown by the record it cannot be said that the possession was as open, visable, exclusive, distinct, and unequivocal as is necessary to give notice. As in Boggess v. Meredith, 16 W. Va., 1, syl. pt. 1: “An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortious and wrongful by the disloyal acts of the co-tenant, which must be open, continued, and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his co-tenant. This conduct must amount to a clear, positive and continued disclaimer and disavowal of his co-tenant’s title, and an assertion of an adverse right, and a knowledge of this must be brought home to his co-tenant.” And Rust v. Rust, 17 W. Va., 901.
Let us consider the question whether or not Ellison had notice of the defendants’right to the whole of the Grapevine tract by their possession, assuming they were in possession. It is well settled by the best authorities that actual possession is notice to purchasers of the right of the person in possession; but there is also a well-settled exception to this rule, and that is that where a party is in possession of property, and there is a recorded title under which he would be entitled to such possession, then possession is not notice to subsequent purchasers of any unrecorded title, and the possession will not operate to put such purchaser upon inquiry respecting- any other title than that which the record discloses. The defendants *431were in possession, and there was a recorded title under which they were entitled to the Perry A. Cline undivided half of the Grapevine tract. A purchaser would therefore be charged with notice of the recorded title, but he would not be charged with notice of the unrecorded title. The defendants have recorded title from Anderson Hatfield and others, and Anderson Hatfield bad a recorded title to the Perry A. Cline undivided half of the Grapevine tract. And Ellison cannot be charged with notice of any g-reater title than the recorded title. Ellison inquired of Hatfield, and was told by him that he never bought Jacob Cline’s interest in the Grapevine lands. He was not required to make inquiries at all. It will be contended that the declaration of Hatfield cannot be taken to cast doubt upon the title he conveyed. This would be the case if the defendants were the vendees of Hatfield, however remote, of the Jacob Cline interest, which is not the case. The record shows that none of the appellants knew of the existence of the title bond, and therefore had Ellison inquired of them, he could not have learned of its existence. In Woods v. Farmere, 33 Am. Dec. 773, the learned judge says: “In Pennsylvania every written title may be registered, and where an occupant announces but one of his titles he does an act which, for its tendency to mislead, oug-ht to postpone the other. By exhibiting a conveyance to which by' his own showing', his possession may be referred, he does what he can to turn a purchaser from the direct path of inquiry. The party for whose protection registration is intended would be more misled by the use of it than if the occupant has pointed to his possession alone, as that would have led him to a particular examination of the foundation of it; and when the occupant, therefore, points the attention of the public to a particular conveyance by the registry, he abandons every other index. An exception to this might be the case of possession taken under a parol contract partly executed, which is not susceptible of registration ; yet, if it were the title mainly relied on, why register another, when, if neither were registered, the possession would be notice of both ?” This principle is found to be well settled by the best authorities. Smith v. Yule, 31 Cal. 180: “If the apparent possession of land is consist*432ent with the title appearing- of record, it is not the duty of the purchaser to make any inquiry concerning- the title beyond what the recording- office shows. ” McNeil v. Polk, 57 Cal. 323; McMechan v. Griffing, 3 Pick. 149. It is also claimed that the deeds to Ellison from the two sons of Jacob Cline are only quitclaim deeds, and therefore he cannot be considered as a purchaser for value without notice. This deed is not a quitclaim deed, but a deed conveying the land itself. The language of the deed is, “do g-raut, bargain, sell, and convey unto the party of the second part all their right, title, and interest whatsoever, both at law and in equity, in and to all that certain tract or boundary of land, situate,” etc. Another portion of the deed reads : “It -is hereby intended to convey a one undivided half interest in and to the said boundary of land,” etc. In Brown v. Jackson, 3 Wheat. 451, the court considered the effect of a deed conveying “all the right, title, and interest” inland, and held that such a deed was sufficient to pass the land itself. Even if this conveyance were a quitclaim deed, it is settled by the authorities that a conveyance by a quitclaim deed does not prevent the vendee from claiming to be a purchaser without notice. Some authorities may be foimd in which it has been held to the contrary, and in the United States supreme court, in May v. Le Clare, 11 Wall. 217, 232, it was held : “A purchaser by a deed of quitclaim, simply, is not regarded as a bona fide purchaser without notice. ” But the supreme court of the United States has overruled itself in Moelle v. Sherwood, 148 U. S. 21, (13 Sup. Ct. 426), and Mr. Justice Field, in rendering an opinion of the court, says : “ The doctrine expressed in many cases that the grantee in a quitclaim deed cannot be treated as a bona fide purchaser does not seem to rest upon any sound principle.” And in U. S. v. California Land Co., 148 U. S. 45, (13 Sup. Ct. 458), the court followed the decision in Moelle v. Sherwood, and disaffirmed all former contrary decisions. Other authorities holding the same way are Chapman v. Sims, 53 Miss., 163; Eoff v. Irvine, 108 Mo., 378, (18 S. W. 907).
As to the consideration paid by Ellison to the two sons of Jacob Cline for their undivided half interest in the Grapevine tract. The amount paid by Ellison to the two *433sons of Jacob Cline was two hundred dollars. The fact that the real worth may not have been paid for the property purchased will not prevent a party from being a bona fide purchaser for value. He must be a purchaser for a valuable consideration, but it is not necessary that he pay what the land is actually worth. The fact that he buys the land cheap does not prevent him from being a bona fide purchaser. It cannot be said that the plaintiff had notice of the existence of a title bond, which the defendants themselves did not know existed, and which appears to have been abandoned and forgotten, and was not a bona fide purchaser for value simply because he only paid two hundred dollars for property, even though it be worth what the counsel for the appellants claim it to be worth. In Pennybacker v. Laidley, 33 W. Va., 624, (11 S. E. 39), the Court considered thoroughly what was inadequate consideration. The appellants in their answer call for affirmative relief, and ask that, “in the event the said Perry A. Cline and Wayne Cline be determined to be legal and sole heirs of the said Jacob Cline, devisee as aforesaid, now deceased, the plaintiff be declared a trustee holding the legal title to the said moiety of land for the use of these defendants and their cestuis que trust, and that he be compelled by the decree of this court to convey the same by apt and proper deed, duly acknowledged for record, to them, in specific performance and execution of the contract of purchase hereinbefore set out and entered into between the said An derson Hatfield and Jacob Cliné and Perry A. Cline, devisees as aforesaid, and for all such other and general relief,” etc. The appellants ask for a specific performance of the contract between Hatfield and Perry and Jacob Cline upon the part of Ellison, and that he be compelled to convey to them the legal title which is vested in him. Equity will not require the specific performance of a contract when it is denied that the purchase money has been paid, unless the party asking for the specific performance of the contract tender the purchase money or prove that the same has been paid. There is no proof in this case that the purchase money has ever been paid to Jacob Cline for his half interest in this tract of land. The allegation of payment was denied by the special replication of the *434plaintiff, and the defendants have at no time tendered the purchase money, and therefore they are not entitled to a specific performance of the contract. Clay v. Deskins, 36 W. Va., 350, (15 S. E. 85), and the authorities there cited. The first syllabus of the case is: “A party seeking specific performance by a bill in equity must show himself to have been ready, desirous, prompt, and eag-er to perform the contract on his own part. The unreasonable delay of the purchaser, which will preclude a decree for specific performance in his behalf, is dependent upon the circumstances of the particular case, and, if his contract has indicated bad faith or a virtual abandonment of the contract, it will deprive him of all just claim to equitable interposition.” That a contract may be specifically enforced, it must be mutual and binding on both parties. Neither Ellison nor the heirs of Jacob Cline could compel the defendants to pay the purchase money due from Hatfield under the title bond. At no time have the defendants assumed its payment or agreed to settle with any one. The title bond was not signed by Hatfield, nor was he bound to pay the purchase money in any way, and no time was fixed in the title bond when the purchase money should he paid. Gates v. Gamble, 53 Mich. 181, (18 N. W. 631); Hawralty v. Warren, 18 N. J. Eq. 124. In the consideration of this case no attention has been paid to the petition of Ellison, containing the affidavits of G. W. 'Taylor and Anderson Hatfield, both of whom swear that the name of Jacob Cline, signed to the title bond, is a forgery, as this evidence is not properly before the court. This petition, with the affidavits, was filed at the rehearing- of the case at Charles Town, and the evidence, if properly before the Court, would prove that the defendants have no title of any kind to the Jacob Cline half interest in this property. The record does disclose the fact that the defendants pretended to be desirous of taking the testimony of Hatfield, only ti throw the plaintiff off his guard, and thus prevent his taking it, because plaintiff supposed Hatfield was hostile to his interests, and so succeeded in misleading plaintiff, and kept the deposition of Hatfield out of the case,
*435BRANNON, PRESIDENT:Jacob Cline, Si'., devised one tract of land, known as the “Old Home Place,” lying- in formerly Log-an county, now in Ming-o county, on Tug- Fork of Big- Sandy river, to his son Perry A. Cline, and another tract, lying- on said Tug-river and Grapevine creek, containing four thousand to five thousand acres, he devised to his two sons, Perry A. Cline and Jacob Cline; Perry A. Cline being thus the sole owner of the “Old Home Place,” and he and his brother, Jacob Cline, joint owners of the “Grapevine Tract,” as I shall call it. Perry A. and Jacob Cline sold to Anderson Hatfield the Grapevine tract, and executed a title bond to evidence the sale, dated August 24, 1869. It was never recorded. Afterwards, by deed of March 23,1877, Perry A. Cline conveyed to Hatfield all the land devised to him by his father, thus embracing the “Old Home Place” and the undivided half of the Grapevine tract. This deed was recorded. Thus Hatfield owned leg-al title to half the Grapevine tract, but only equitable title to the other half, as Jacob Cline never conveyed to Hatfield the other half under said title bond. Hatfield then conveyed certain parts of the Grapevine tract to different persons, and by certain conveyances they came to be owned by J. D. Sergeant, and Hatfield conveyed the balance to Sergeant, so that Sergeant was owner of the entire Grapevine tract save a few small pieces. In 1888, Sergeant put tenants on the land, and in 1891 conveyed the land to Richard Torpin, Jr., John Lambert, Jr., and George Wharton Pepper, trustees, who have since continued in actual possession. This being the situation on the 6th of December, 1893, J. B. Ellison took a conveyance from two sons of the younger Jacob Cline, deceased, for the undivided half of said Grapevine tract, on the theory that their father had never sold it, and had died owning it, and that it descended to his sons. Ellison paid each of them one hundred dollars for his interest. Then Ellison, thus claiming half of said land, brought this suit ag-ainst the trustees to divide the land and have half set apart to him. The trustees by answer utterly denied Ellison’s claim, and set up said title bond from Perry A. and Jacob Cline to Hatfield, thus claiming *436that Jacob Cline had by it sold his half to Hatfield, leaving him owner of no interest in the land at his death to descend to his sons, except dry leg-al title, and that defendants derivatively from Platfield owned that half, and Ellison had notice of the right arising" from said title bond when he took the conveyance from the sons of Jacob Cline; and they asked that Ellison be compelled to convey the right to them, he having acquired the legal title with notice of the equitable title created by the title bond. A decree gave Ellison half the land by directing- a partition by which he was to get half. The trustees appeal.
The title bond from the two Clines to Hatfield, giving him all the Grapevine land, must be taken as established. I think the proof establishes it; but, besides, the answer alleges its execution, and the special reply does not deny it under oath.
A vital question is whether Ellison can be charged with notice of that title bond when he took the conveyance for half the land from the two sons of Jacob Cline. At that time the defendants, the trustees, were in possession, claiming the whole land, by tenants, and it is claimed that such possession affects Ellison with notice of that title bond. Before the use of writings to transfer freehold estates in the very land itself, it was effected by livery of sei-sin; that is, delivery of actual physical possession of the land itself. Possession was thus the signal sign that he in possession owned that land. So it remains to-day in the rule that possession is prima facie evidence of title in the possessor. One who buys of another that man’s land must take the precaution to inquire of him what are his rights; for, if he does not, the law charges him with knowledge of that man’s right as fully as if he actually had applied to him and been informed of such right. In these, our days, actual possession of land is notice to purchasers of the right of the person in possession. Opinions in French v. Loyal Co., 5 Leigh, 641; Western Co. v. Peytona Coal Co., 8 W. Va., 409; Campbell v. Fetterman, 20 W. Va., 399; Chapman v. Chapman, 91 Va., 397, (21 S. E. 813); La Neve v. La Neve, 2 White & T. Lead. Cas. Eq. 180; Kirby v. Tallmadge, 160 U. S. 379, (16 Sup. Ct. 349); 2 Pom. Eq. Jur. § 615; 2 Minor, Inst. 980, It takes the place of regis*437tration as to all the rig-ht of the occupants, says the Chaj>-man Case. Of this possession of the trustees at the date of Ellison’s purchase he had not merely constructive, but actual, notice, as he admits in his special, replication to the answer.
But it is urged that this rule cannot be applied in this case, because there was on record the deed from Perry A. Cline to Anderson Hatfield passing- half the land, and subsequent transfers bringing that half to the trustees, and that in such cases possession gives no notice of any ownership in the other half held under the unrecorded title bond ; that Cline’s deed to Hatfield told the world that it conveyed what land Jacob Cline had willed to his son Perry A. Cline; and that will thus referred to showed a joint devise to the two sons, Perry A. Cline and Jacob Cline, and so any one might reasonably suppose that the defendants were in possession only under rig-ht to an undivided 'moiety; and being tenants in common with Jacob Cline or his heirs, the possession of these timstees was their possession, the possession of one joint owner being- the possession of all. It can be said with force, as a general thing, that when one about to purchase sees that a person in possession has a certain title on record, the record discloses his full title, and he ought to be required to inquire no further, as he may ascribe such possession to that title and limit it by that title. Pom. Eq. Jur. § 616, lays down the principle that “where a title under which the occupant holds has been put on record, and his possession is consistent with what thus appears of record, it shall not be constructive notice of any additional or different title or interest to a purchaser who has relied upon the record, and has had no actual notice beyond that so disclosed.” In Woods v. Farmere, 32 Am. Dec. 772, the great Judge Gibson said that, by putting a particular conveyance- on record, the occupant does what he can to turn the inquiring purchaser from his path of investigation; that the party for whose benefit the record is made would be more misled by the use of it than if the occupant had pointed him to. his possession alone, as that would have led him to the fountain of it, and revealed to him the entire claim of the occupant, and when the occupant points at*438tention to a particular deed on record he abandons every other index; that an exception might be the case of a parol agreement executed by possession, which is not susceptible of recordation ; yet, if it be the title mainly relied on, why record the other, when, if neither were recorded, possession would be notice of both? This principle is to be found stated in various forms through the books. 16 Am. & Eng. Enc. Law, 803; Wade, Notice, § 297; Kirby v. Tallmadge, 160 U. S. 387. (16 Sup. Ct. 349); Smith v. Yule, 89 Am. Dec. 167; Bank v. Wallace, 45 Ohio St. 152, (12 N. E. 439); Harris v. McIntyre, 118 Ill. 275, (8 N. E. 182); Rankin v. Coar, 46 N. J. Eq. 556-572, (22 Atl. 177); Atwood v. Bearss, 47 Mich. 72, (10 N. W. 112); Pope v. Allen, 90 N. Y. 302.
Properly applied, this doctrine is plausible, though there is authority denying it. Some of the cases referred to in sustenance iof it will be found to be cases bearing rather on the character of possession as being equivocal or uncertain, not such a sole possession in the one claiming-the unrecorded title as to be noticed, as in the case of husband and wife, the wife claiming the unrecorded title, the husband being held the one in actual possession, not the wife; or grantor and grantee in possession, — and they do not assert that a sole occupant under the titles, one not recorded, will be limited in the effect of his possession as notice only of the recorded .title. But these cases do not go the length claimed for them in this case. Now, when one is in possession with two rights derived from one person, one right shown by a deed on record, the other not, there is some force in applying the rule. As, for instance, when a tenant enters under a lease or record, and later gets a deed from the landlord for the fee, not on record, or where a mortgageeis in possession under a recorded mortgage, and later buys the fee or equity of redemption by deed not on record; in these cases there is reason in saying that the occupant has but one right, that one recorded from tin's one grantor or lessor. But will this theory be applied to say that as the one in possession has on record a deed from A., and also has an unrecorded deed from B. for the same land, his possession is no notice of his right under B ? That when he sees that deed on record from A. he *439need seek information no further to expláin how the occupant claims ? And it seems not sound to say that when a man has the right of two joint owners, andthe deed from one only recorded, and that deed being- for one-half, and the party in possession of the whole, his possession g-oes no further than the recorded half, and is no notice of his rights to the other half. True, the possession of the joint owner is the possession of another that is not adverse, and it is fair to say that, as each has a right to possession, one is in possession only under his own right, leaving the interest of the other in him ; but joint owners do sell their interests, and, where one has conveyed to a stranger in sole and exclusive possession, the other has not what might he expected, if still owner, — concurrent possession. Is not this sufficient to put a prudent purchaser on inquiry as to how the stranger holds? If you give possession any virtue at all as notice of the rights of the occupant, why does it not in reason apply to the protection of both rights? Why good for one and not for the other? The fact that one deed is on record, and not the other, makes no difference. I cannot see my way to say that, when Hatfield and those under him were in possession under Perry’s deed to him passing his half, the Grapevine land, and under the title bond passing Jacob’s half, his possession was not notice of his right to Jacob’s half, because, and only because, his deed for Perry’s half was on record. To sajq as said in the Pennsylvania case above cited (Woods v. Farmere), that it indicates that the party has abandoned his other claim is extravagant and unreasonable; or to say that he has misled the second purchaser is unreasonable; and to visit him with the loss of his land for so misleading, as a penalty, is unreasonable. His deed may not he so acknowledged as to be recorded; it may have been burnt or lost. The law allows him to give notice in two days, — by registry or possession. He gives it by possession, and why should he suffer? There is authority for denying the doctrine contended for in this case, at least. Warvelle on Vendors (volume 1, p, 277, § 14) says: “Every purchaser is charged with the duty of exercising diligence in making proper examination touching the right and equity of others.” In Russell v. Sweezey, 22 *440Mich. 235, the law held is that “actual possession of land is notice of the title of the party in possession, whatever it may be, and not merely that which the registry may disclose.” He had a tax title and a deed from heirs, not recorded. In Cosgray v. Core, 2 W. Va., 353, one joint tenant purchased some interests, and had deeds for them recorded, and others not recorded, and it was held, it seems, that possession was notice of title to a purchaser of interests for which the occupant had no deed on record; thus disputing, even in the case of joint tenants, the exception contended for. As to those authorities saying that when one enters under one right, and afterwards acquires an additional one, possession will not be notice of the additional one, they do not apply; for Hatfield’s acts, if amounting to possession, were done when we had the right of both Perry and Jacob Cline. So with the trustees, if they took possession for the first. And, moreover, I hold the doctrine that possession is notice of the rights, whenever acquired, existing at the date of the second purchase. As he is sole occupant, he is presumed to be the sole owner. Possession is prima facie proof of the title. If the second purchaser assumes him to be a partial owner only, he runs counter to this principle. He must ask him who best knows as to the extent of his right, because possession imports total ownership. I do not understand that, where there is actual possession, registry is necessary as notice to a purchaser or has anything to do with the question. The law says to the second purchaser that he must ask the occupant, “What are your rights?” If possession calls for this inquiry, why does it not do so just as much where a deed for part is on record and the deed for balance not on record ? Asking would give information of both.
In the case of Weisberger v. Wisner, 55 Mich. 246, (21 N. W. 331), (opinion delivered by Cooley, C. J.), the exact point involved in the case at bar was decided contrary to the exception contended for by the app.ellee. In that case Muzzy was the owner of the whole of a quarter section of land, and entered into a contract with Wisner whereby the latter was to enter into possession for the benefit of both, and receive a deed for an undivided half of the land. The half thus contracted for was conveyed by Muzzy to *441Wisner in 1862, and Muzzy and Wisner became tenants in common. Two years later Muzzy entered into another written contract with Wisner to sell him the other undivided half, and in 1873 did actually convey to him one-half of the remaining- undivided half so contracted for. This made Wisner the owner of an undivided three-fourths of the land in question, with a contract from Muzzy for the remaining-undivided one fourth, the legal title to which still remained in Muzzy. Wisner was in possession, and with the title in this shape executed a mortgage upon the land to a man by the name of White. White filed a bill to foreclose the mortgage, and the question arose direct in the litigation that followed whether the mortgage was a lien upon the outstanding one-fourth, or whether that lien was defeated by the fact that Wisner’s possession of the land constituted notice to White of Wisner’s unrecorded contract with Muzzy. White contended that Wisner was a “tenant in common with Muzzy, and, as the possession of the one tenant in common is presumptively the possession of both, and not hostile to the other, White, when he took his mortgage, had a right to understand that Wis-ner was holding in the rig-ht of himself and Muzzy jointly, and was not constructively notified by the possession of anything different. ” In other words, it was contended that the possession of Wisner was explained by his two recorded deeds — First, the one for an undivided half of the land; and, secondly, the other for an undivided fourth thereof; and that, in consequence, such possession being fully explained, and not being inconsistent with the records, did not constitute notice of his unrecorded contract for the remaining undivided one-fourth; but the court held otherwise, and in coming to this conclusion Chief Justice Cooley briefly stated the true doctrine in the following convincing language: “If Wisner had held a deed of the remaining interest in the land, which then appeared to stand in Muzzy, we see no reason why his possession should not have been constructive notice of it. It is true, as complainant says, that the possession was not apparently inconsistent with the record title; but this may be said in any case. It is possible that any possession may be that of a licensee or otherwise subordinate to the record title; and, if that *442were sufficient reason for holding-that the possession is no notice of actual rig-hts, the principle on which decisions have been made, giving- protection to occupants, would have very limited application. If Wisner had held no deed of an interest in the land, but had been inpossession under a contract of purchase, the possession would indisputably have been notice of his rights. Why it should be any less so, when his title has been in part completed by conveyances, is not apparent. The conveyances, one would think, ought to fortify and strengthen his equities, instead of weakening and putting them in danger. It seems to be unquestionable that Wisner occupied exclusively, and White would have learned this fact on inquiry. No reason is apparent why he should not have been held bound to inquire as much in this case as in any other.” Mr. Devlin in his work on Deeds, at the conclusion of section 770, after having discussed some of the authorities relied upon by the appellee, comes to the following conclusion, and makes use of the following language: “But the proper rule seems to be that possession should be held to be notice of all the rights of the party in possession, where the possession is open, visible, exclusive, distinct, and unequivocal.” Possession by a tenant is notice, not only of his right, but also of his landlord’s. Wade, Notice, § 286; 2 Pom. Eq. Jur. § 618; 16 Am. & Eng. Enc. Law, 804; Webb, Record Titles, § 236; Tied. Eq. Jur. § 92.
Speaking for myself only, I would advise the abolition by the legislature of the rule that possession shall be fer se notice. The public registry is designed, not to preserve the owner’s title, but to notify creditors and subsequent purchasers of transfers. Possession is not notice to creditors, but is as to purchasers. Why are not purchasers entitled to protection? Make people piit their deeds and title bonds on record, and let the purchaser go to the public office and inquire, and not compel him to go far away to pick out the particular land, and see who is in possession and what his title. It is a dangerous doctrine, and not necessary to protect the owner in possession, who can record his papers. The reason for it ceased when transfers came to be written and when registration was provided. I notice that Judge English speaks about *443Hatfield’s possession far back, while I refer to the possession of the trustees of the coal company, covering' the whole title at the time Ellison purchased, as notice to Ellison. Hatfield was not then in possession. Why ask him or consider his long-past possession as revelant? I speak of their possession as notice to Ellison, and do not rely on Hatfield’s possession, many years ago, as notice to Ellison.
Another reason given against applying in this case the rule that possession is notice is that in fact the defendants’ papers did not show right to the Jacob Cline half, but only to the Perry Cline half. This contention is based on the fact that when Perry Cline conveyed to Hatfield the deed conveyed all the land willed to him by his father, — that is, the entire “Old Home Place,” and one-half of the “Grapevine Tract,” — and when Hatfield conveyed to Sergeant he recited, “all the real estate herein conveyed, being part of a 5,000-acre survey conveyed from P-. A. Cline to said Anderson Hatfield;” and that, as the Perry Cline deed passed only half to Hatfield, Hatfield passed only half to Sergeant; and, moreover, as the Perry Cline deed referred to his father’s will, and that showed that Jacob Cline got this land equally with Perry, the entry of' Hatfield or the trustees was only under claim to half, and the trustees were holding as co-tenants with Jacob Cline’s heirs. This argument will not stand. When Perry Cline conveyed to Hatfield, it is true that he could and did convey only half, but, when Hatfield conveyed to Sergeant, Hatfield owned the whole half acquired from Perry Cline by both the old title bond and deed, and the other half from Jacob Cline by the same title bond, and Hatfield’s deed to Sergeant conveys the land by several parcels or tracts as entireties, not moieties, and this after recital is, at most, only false description, and, apart from the granting parts, granting-the tracts as wholes, and would fall under the old rule, “Falsa demonstratio non nocct cum dc corpore conslat,” stated in 1 Greenl. Ev. § 301. We plainly see that the intent was to convey the tracts as wholes, not merely half interests in them, and after-misdescription cannot defeat the plain intent. The intent in the recital was merely to refer to the former deed to tell what land was referred to, not what interest or estate was conveyed, which had been *444done by the preceding- granting- part. And in fact they were but parts of the five thousands acres, as we know Hatfield sold off parts to others, leaving these tracts as parts. And just here is the place to say that Ellison himself says he investigated the records, and saw the will and those two deeds, before purchasing of the two Cline heirs the Jacob Cline moiety. That deed from Hatfield to Sergeant certainly conveyed specific tracts as entireties, not moieties therein, according to its legal construction, as Ellison was bound to know. This I think is plainly its construction, and surely it was not plainly the other way. Was not the deed itself a warning? And he himself says he saw other deeds from Hatfield for parts of this survey, —one, at least, — and they conveyed the land in toto, not half, and thought Hatfield had conveyed too much land. He does not claim that those deeds spoke any other language, buthe says he could not see where Jacob Cline’s interest had gone. Whjr not seek information, and that where it would be most likely found? and that was to inquire of these trustees or Sergeant or those others holding deeds for parcels. If he had gone to the trustees, he would have learned that they claimed the entirety. Why not inquire of those tenants on the land, when these deeds told him of claim, not to part, but of whole, interests? Ellison in his special replication to an answer admits that he knew the trustees were in possession when he purchased of the Cline heirs. Under the rule generally prevailing-, these considerations would charge a purchaser with constructive notice of the former transfer; for that rule is that facts and circumstances sufficient in character to put a careful, prudent man on inquiry into the existence of some adverse title or claim will raise the presumption of notice. But in Virginia and this State that rule seems'not to prevail, as Judge Baldwin said that “the doctrine that whatever puts one on inquiry amounts to notice is inapplicable to the statute in regard to both registered and unregistered conveyances,” and that notice is insufficient if it merely puts a party upon inquiry. Siter v. McClanachan, 2 Grat. 312. The proof must be so strong as to affect conscience and fix mala Jides. Such knowledge is never presumed, but must be proved, and proved clearly. Mere *445suspicion of notice though strong, will not suffice. It must he enough to prove the party guilty of fraud. Mundy v. Vawter, 3 Grat. 518, syl. pt. 3; Vest v. Michic, 31 Grat. 151; Minor, Inst. 977; Bart. Ch. Prac. 1005. But still all facts and circumstances may be considered. There is probably no difference in the Virginia law and that elsewhere, except in degree of proof. Do not all the foregoing circumstances come up to the standard required, particularly wh en we add to them the facts stated below, that the price paid by Ellison was a mere pittance for the land, and he took a deed without warranty, and the legal import of those two facts, as stated below?
Another forcible circumstance is that at the very instant of buying from the Cline heirs, as Ellison himself states in evidence, he agreed to pay them for hunting up evidence to prove their heirship. This imports that he expected litigation to sustain this claim to half the land; He says he then intended to sue for partition. Litigation with whom? Clearly, with the trustees, for he says he then knew they were in possession. If he did not know they claimed the entire land, acknowledging no one else’s right to half, why expect trouble with them? And if he expected trouble with others to whom Hatfield had sold en-tireties, the same fact would lead a reasonable man to assume the same claim of ownership under his conveyance to Sergeant. He says he knew, and told the Cline family, that Hatfield had sold more land to parties than he owned. This he did in an inquiring way, as if to learn from them the facts about it. The Widow Cline and the two sons denied his right to do so. Why did he not inquire of those persons on the kind? Why not look at the papers on record under which those in possession claimed, which would have told him they .claimed the whole, when he had so much to warn him and put him on inquiry? Why not take steps wdthin his reach, — ascertain in quarters readily accessible? It was only fair to ask the trustees in possession if they claimed the whole. There is in brief of counsel an argument that, where one is in possession under a recorded title, his possession is no notice of other claim, and that this is especially the case where the one in possession is a co-tenant with another, since his possession is in har*446mony with the title of his associate, the possession of one co-tenant being- that of the other, and that, as possession is not J>er sc notice, bnt, at most, only a circumstance calling for inquiry, the trustee’s possession in this casecannot even go that far, as they were co-tenants with Jacob Cline’s two heirs. How were they co-tenants? If we look only to Perry Cline’s deed to Hatfield, operating to convey only Perry’s half, Hatfield would be a co-tenant with the Cline heirs; but remember that both Perry and Jacob Cline made that title bond to Hatfield which, though not conveying legal title, yet in equity worked a destruction of the joint estate vested in them under their father’s will by de-vesting their right and vesting a sole and several right in Hatfield. The trustees were not co-tenants with the Clines. 2 Minor, Inst. 478. ■
Another matter is in the claim that the deeds to Ellison are only quitclaim, and therefore he cannot hold the place of a purchaser for value, without notice. I think the deeds not mere quitclaim, but conveying the land itself. They “grant, bargain, sell, and convey all their title and interest in and to” that tract, etc.; and another clause declares, “It is hereby intended to convey one undivided half interest,” etc., and has special warranty. Touchard v. Crow, 81 Am. Dec. 108; Devi. Deeds, § 27. But, if purely quitclaim deeds, their character would not prevent Ellison’s claiming the position of a purchaser for value without notice. They pass title. 3 Kerr, Real Prop. § 2297; Brown v. Jackson, 3 Wheat. 451. Upon what I have always thought a very refined and illog'ical theory, the supreme court of the United States and others have held that a mere quitclaim will not allow its holder to say he is such purchaser. May v. Le Claire, 11 Wall. 217, 232; Dickinson v. Colgrove, 100 U. S. 578, 579; Wood v. Manufacturing Co., (Ala). 13 South. 948; 2 Pom. Eq. Jur. § 753. This is on the idea that the grantor merely releases such right as he has, without warranty, thus indicating- there may be claims or interests affecting the title, and the grantee in accepting it is notified by the grantor that there may be some defect in his title; that such deed is used by speculators taking chances, for merely nominal consideration, and subject to any equity against the grantor. 2 Warv. Vend. 615. *447Where this rule prevails, it applies to quitclaim deeds, strictly so called, not to those passing- the very land itself. Webb,.Record Titles, § 27. But the supreme court overruled itself in Moelle v. Sherwood, 148 U. S. 21, (13 Sup. Ct. 426), holding that a “quitclaim deed does not of itself prevent a party from becoming a bonajide holder, and the doctrine in many cases, that the grantee in such a deed cannot be treated as a bona fide purchaser, does not rest on any sound principle.” And in U. S. v. California Land Co., 148 U. S. 31, (13 Sup. Ct. 458), the court repeats this holding, and recants seven former contrary decisions. Other authority accords with this. Chapman v. Sims, 53 Miss. 163: Devl. Deeds, § 672; Eoff v. Ervine (Mo. Sup.) 18 S. W. 907; 2 Warv. Vend. 616; Jones, Real Prop. §§ 1394-1396. The same author says that the fact that a purchaser takes such a deed, while it does not per se shut him out from the position of a bona fide purchaser, is a circumstance to be considered with others.
In this connection comes the fact that the second purchaser paid for the half of from two thousand to three thousand acres of coal land traversed by the Norfolk & Western Railroad, on which were vast operations in the mining of coal, only §200. A deed without warrant to make good title would indicate suspicion that there might be some trouble, and a consideration grossly inadequate. Strange that a vendor would sell an estate worth many thousands for a pittance. The very fact tells the purchaser that there may be trouble as to the right, and intimates to all that it was a mere chance that was being sold. Why a chance, unless it be from a suspicion of trouble? To give a purchaser the benefit of bona fides, it is necessary that he pay a valuable consideration, and this does not mean a full and adequate considei'ation, but a fair consideration; as, if the consideration be not in keeping with the character of the property, but grossly inadequate, the purchaser will not receive the benefit of bona fides. 2 Warv. Vend., p. 610,§ 10; 2 Pom. Eq. Jur. § 747. And this is more so when a deed is taken conveying without warranty. Dembitz, Land Tit. p. 976, § 132- The principle is well stated in Worthy v. Caddell, 76 N. C. 82: “One who claims against a prior donee or creditor, as a purchaser for value, must prove a *448fair consideration; not the full value, but a price which does not cause surprise, or warrant a suspicion of fraud or contrivance on the part of the purchaser.” Justice Field, while holding that one may be a bona fide purchaser under a deed without warranty considered a reasonable consideration an important matter in passing on the question of good faith. Opinion Moelle v. Sherwood, 148 U. S. 28, (13 Sup. Ct. 426).
It is strenuously urged that the answer of the defendants set up this title bond from Perry and Jacob Cline, calls for affirmative relief by specific performance of it by conveyance of the land to the defendants, and that the defendants must first show payment of the five hundred dollars purchase money, but have not shown it. First, we are able upon the facts to hold that payment was made. This is established by the rule that a bond is presumed paid after twenty years from its maturity. 18 Am. & Eng. Enc. Law, 207; Criss v. Criss, 28 W. Va., 388; Sadler v. Kennedy, 11 W. Va., 187. But it is said that, under an executory contract for the sale of land, this rule does not apply, at any rate not to base a claim on it for affirmative relief, if it would avail as a defense in a suit for purchase money. I see no reason why this presumption should not apply to a debt for land as well as anything else. It is only a debt, no matter what consideration. The true rule is g'iven in Gregory v. Com., 121 Pa. St. 611, (15 Atl. 452), as follows: “All debts excepted out of the statute of limitation (that is, where that statute does not apply), unclaimed and unrecognized for 20 years, are, in the absence of sufficient explanatory evidence, presumed to have been paid.” Full note Alston v. Hawkins, (N. C.) 18 Am. St. Rep. 874, 879 (s. c. 11 S. E. 164). This presumption of payment bars a debt secured by a deed of trust, or reserved as a lien for purchase money in a conveyance of legal title. Pitzer v. Burns, 7 W. Va., 63; Camden v. Alkire, 24 W. Va., 674; Coles v. Withers, 33 Grat. 186; Bart. Ch. Prac. 117. And the case of Hanna v. Wilson, 3 Grat. 243, admits, in the case of a sale of land under an executory contract, that the presumption applies. So Massie's Case, 80 Va. 790; McCormick v. Evans, 33 Ill. 327; Morrison v. Funk, 23 Pa. St. 421, Where notes are yet in the hands of the vendor, *449or it is anyway shown the debt exists, no time bars in such case. As it is a presnmption of a fact raised by law, I do not see why it could not be the basis for affirmative relief in enforcing- a conveyance as well as to defend a suit for purchase money. It was held otherwise in Morey v. Farmers' Co., 14 N. Y. 302. It was said to be a shield, not a sword for affirmative ag-gressive action, as stated in 13 Am. & Eng-. Enc. Law, 674. This is the only case of high, authority so holding. The case of Scarlett v. Hunter, 56 N. C. 84, cited by counsel to support this position, does not do so. There the vendee sued for a deed, tendering purchase money, the vendor relying on time as defense. This question did not arise. This presumption shifts the burden of proof, and requires the creditor to show nonpayment. Jones, Ev. § 63 ; Stover v. Duren, 51 Am. Dec. 634. It would seem ridiculous to hold, in a suit brought by the vendor for purchase money, that he was barred by the presumption, and then turn right around and hold that the purchaser suing fora deed could not rely on the presumption to prove payment. The one could not get his purchase money; the other could not get his deed. In this case the title bond fixed no time for payment of purchase money, and it was in law payable instantly, and nearly twenty-six years had elapsed from the date of the title bond. Besides, evidence shows that in 1868 Hatfield paid Perry Cline one hundred and sixty dollars in a mule on the title bond, and paid Jacob Cline one hundred and fifty dollars in money, and Perry Cline made a deed under the title bond in 1877. These payments, coupled with so great a stretch of time, and no claim ever afterwards shown for purchase money, justify us in holding it paid. But, suppose it were not paid; can"one man, having notice of anothei^s prior purchase, step in and make a second purchase, and, when sued to avoid the deed he wrongfully obtains, plead that the first purchaser had not paid the purchase money ? This suit is one to avoid this second purchase; and make the second purchaser give up his right to the first. There is no error of which he can complain, if others could. I wotild reverse the decree, and deny Ellison any right to the land.
Dent, Judge, concurs.Affirmed.