This is an action for damages caused by the construction of defendant’s railway over plaintiff’s land. The petition was in five counts and 'the judgment was for plaintiff on all but the fourth, in the aggregate sum of $1,600.
The first count was for an entry and appropriation of a strip of land one hundred feet wide through plaintiff’s farm without a deed or other permission. The second was damages to the remainder of the farm by dividing in parts, etc. The third w¿s for such careless and unskillful construction as to cause plaintiff’s land to overflow. The fourth was for damages occasioned in'1893 by destruction of eight acres of wheat growing on said lands and destroyed by overflow caused by the construction of defendant’s road. The fifth was fo'r ithe destruction in 1894 of forty-five acres of timothy and clover growing on plaintiff’s land by an overflow caused by the careless and unskillful construction of defendant’s roadbed.
It appears that defendant is the successor of the Central Missouri Railway Company. That the land in controversy was formerly owned by one McBaine and that he conveyed the right of way through said land one hundred feet wide to the latter company which conveyed to defendant. That after-wards, plaintiff purchased the lands of McBaine’s executors and had his deed recorded. That the deed to the Central Railway Company was not recorded until some time after plaintiff’s purchase and he had no actual notice thereof, though defendant claims he had such knowledge as was sufficient to put a man of ordinary prudence on inquiry and that he is in *100consequence to be charged with actual notice of the unrecorded deed. It further appears that plaintiff did not pay the full purchase price at the time of his purchase and that while yet owing $1,000 of such purchase money he became actually aware of the unrecorded deed.
The court gave instructions for plaintiff which declared that his title was better than that conveyed by the unrecorded deed and that such unrecorded deed was no defense unless plaintiff had actual notice thereof at the time of his purchase. It was error to so instruct; for if plaintiff had such knowledge and information as was sufficient to put a man of ordinary prudence on inquiry, he is to be regarded as having actual notice. This is the construction given to section 2420 of the statute. Maupin v. Emmons, 47 Mo. 304; Meier v. Blume, 80 Mo. 179; Jennings v. Todd, 118 Mo. 296; Bank v. Frame, 112 Mo. 502; Eck v. Hatcher, 58 Mo. 235.
It was also error to give such instruction since it appears that when plaintiff did become possessed of actual notice in fact of the existence of the unrecorded deed he had in his hands $1,000 of the purchase price of the land and this was more than he claims the strip in controversy was worth. He can not claim to be an innocent purchaser. Halsa v. Halsa, 8 Mo. 303; Wormley v. Wormley, 8 Wheat. 421; Frost v. Beckman, 1 Johns. Ch. 288; Paul v. Fulton, 25 Mo. 156; Arnholt v. Hartwig, 73 Mo. 485; Digby v. Jones, 67 Mo. 104. Having the means, it was his duty to protect himself.
It is suggested that there was no evidence that plaintiff had information or knowledge sufficient to put him on inquiry. Defendant however offered evidence, some of which was excluded, the tendency of which, connected with other facts (among them possession of the strip) was to show such knowledge. Musick v. Barney, 49 Mo. 460.
But plaintiff contends that the Central Missouri Railway Company had ceased to be a corporation at the date of its deed *101to tlie defendant company. The ground of this contention is that such company did not begin the construction of its road 'within two years after its organization, and did not within one year thereafter expend ten per cent of its capital as required by section 2664, Revised Statutes 1889. There was no evidence as to this, and in our opinion in order to destroy the effect of defendant’s title to the right of way plaintiff should have made proof of those facts. In the absence of evidence we can not assume the charter was forfeited and the corporate existence ceased by failure to comply with the statute. The burden was on plaintiff to show this.
If under the views we have expressed it develops on a retrial that defendant has acquired title to the right of way, plaintiff can not recover for the appropriation of the land, or for dividing it as prayed in the first and second counts; yet he would be entitled to recover damages which may have resulted to him from the careless, negligent or unskillful construction of the road whereby the lands were overflowed. 3 Elliott on Railroads, sec. 937; Clark v. Railway, 36 Mo. 202, 224; Abbott v. Railway, 83 Mo. 272; Moss v. Railway, 85 Mo. 86.
A question is made here as to where the burden of proof was on the question of plaintiff’s being an innocent purchaser without notice of the prior unrecorded deed. Ordinarily the burden would be on the party whose case depends on his innocence and lack of notice. Here the plaintiff’s claim of title being by a subsequent deed is invalid unless he can establish that he was an innocent purchaser (Halsa v. Halsa, 8 Mo. 304), unless he had been relieved of the burden by defendant assuming it by answer. And whether he has or not becomes unimportant in view of the practical concession that he was aware of the prior deed before paying the balance of purchase price.
It results from the foregoing that the judgment must be reversed and the cause remanded.
All concur.