I concur in the result reached in this case, though, I must confess, after much hesitation. It seems to me that, inasmuch as the grantor cannot convey any greater estate or interest than that which is vested in him, the several conveyances, purporting to be deeds in fee simple, operated only as assignments of the original lease to Walker; and hence the several holders under those deeds, including the defendant, held under that lease, and their possession was, therefore, permissive and not adverse. At least, this was so until some act was done amounting to a forfeiture of the lease, of which the plaintiff had notice more than twenty years before the commencement of this action. I was unable to see how the plaintiff could maintain an action against any one of the several holders of the land, before the termination of the lease, for all that the defendant would have to do in such a case would be to throw' himself upon his rights as assignee of the lease, and thus defeat the action. But the case of the Trustees of Wadsworth*186ville Poor School v. Meetze, 4 Rich., 50, decides, as I understand it, that the lease to Rail “did not prevent the plaintiffs from suing the defendant, whose possession under the conveyance in fee simple from Rail was clearly adverse. The conveyance in fee simple was a disclaimer of Rail’s tenancy, and the plaintiffs might sue without notice to quit, and before the termination of the lease,” provided the plaintiffs had notice of such adverse holding. For it will be observed that the third instruction to the jury (affirmed by the Court of Appeals) was that “if Rail’s possession was permissive, his declaration to Taylor (even if made after the supposed lease), that he would claim under the statute of limitations, could not convert his permissive possession into an adverse possession, without notice to the plaintiffs of such adverse holding.” This case, therefore, is decisive of the point, and my doubts must yield to its authority.
Another point of doubt is the question of notice to the plaintiff that the several parties were claiming to hold the land adversely under the fee simple deeds. I do not think that the record of these deeds operated as constructive notice to the plaintiff, for, as I understand the rule, a party is bound to look up, but not down the line. As is said in 20 Am. & Eng. Enc. Law, 596: “The operation of the record as notice is prospective and not retrospective.” Hence, as is.there said: “A prior mortgagee cannot be charged with notice of, and cannot be affected by, a subsequent mortgage or deed by the mere record thereof.” See, also, Lake v. Shumate, 20 S. C., 32, to the same effect. The jury having been-instructed in accordance with this view, it then became a pure question of fact, as to whether the plaintiff had actual notice, and if they erred in their finding as to'such fact, such error is beyond our reach. The remedy was by a motion before the Circuit Judge for a new trial, which seems to have been unsuccessfully resorted to. If, in fact, there was no’evidence of such notice (which, I must say, seems to me was the case), then the Circuit Judge should have granted a new trial; but even if there was error in this respect, this court has often held that it was without jurisdiction to correct such error.
Judgment affirmed.
*187In this case a petition was filed praying for a rehearing. This petition was refused by an order filed January 20, 1894,
Per Curiam.4 After a careful examination of this petition, we are unable to discover that any material question of fact or principle of law has either been overlooked or disregarded, and, therefore, there is no ground for a rehearing. For the purpose, however, of preventing any misconception as to the real ground upon which the decision rests, we deem it best to say that it is a mistake to suppose that the remarks made in the leading opinion, implying, possibly, that the recording of the fee-simple deeds might operate as constructive notice, constituted a ground for the result reached. These remarks were thrown out by the justice who prepared the opinion as an additional reason for the view taken, which, however, as shown by the remarks of the other two justices in concurring in the result, should not be regarded as one of the points decided in the ease. Petition dismissed.