¿¡assenting. — We have a case where the defendant Daniel O. Connelly borrowed of the plaintiff $4,500 and to secure it executed a mortgage upon a half section of land of which he had the legal title. But the mortgage was held invalid upon the ground that the mortgagor was merely the legal and not the equitable owner. The mortgagor it appears before the execution of the mortgage built a small house somewhere upon the half section and allowed his son, the defendant James O. Connelly, to occupy it. It appears also that this son James remained in his father’s family for a few years after he became of age, and worked upon his father’s farm, having his support from the income of the farm in the meantime. James’ pretense is that when his father built a house on the half section in question and allowed him to occupy it he gave him the half section for his work, and there was some evidence introduced tending to show that such was the fact. The claim of James, if well grounded, convicts his father of a great fraud. He did not execute the mortgage by mistake. He was not a great land owner.' He owned one section in a body, embracing the half section in question and must have known perfectly well what James’ claims were when he executed the mortgage if those claims had any foundation.
There is much to show that they had no foundation. In the first place the evidence shows that at the time of the alleged settlement between James and his father for James’ labor, his father gave him a considerable amount of personal property, and there is good reason to believe that that, together with the use of the house and so much of the half section as James saw fit to cultivate, was a full equivalent for James labor, and that what was said about the giving of the farm was said in view of a mere prospective advancement. Not a word appears to have been said about a deed at any time, though nine years elapsed between the time of the alleged settlement and the execution of the mortgage. Daniel O. Connelly paid the taxes on the land for the most part if *224not entirely, cultivated a part of it, and raised money by mortgaging tbe whole of it two or three times before he executed the mortgage in question. He was engaged in dealing in cattle, was considerably in debt, was not the owner of a large property, and does not appear to have been in circumstances to justify him in making so large an advancement to James. I must be permitted to express great doubt whether the mortgage was n-ot executed in good faith, and without any supposition that James would make any claim to the land as against the mortgagee, and whether the mortgagor’s fraud does not consist in now colluding with James to set up this claim.
I prefer, however, to place my dissent mainly upon other ground. If it should be conceded that James had the equitable title he would not be allowed to set it up as against the mortgagees unless the latter had actual notice of it. If they had known that James was living on the half section, knowledge of such fact, it may be conceded, would have been sufficient to put them upon inquiry, and in such case they would be deemed to have had actual knowledge of whatever there was reasonable ground for believing that the inquiry if properly prosecuted would have led to. But they had actual knowledge of nothing. They were not therefore put upon inquiry. The sole question then is as to whether they had constructive notice of anything, and if so what. They had constructive notice of whatever possession James is shown to have had when the mortgage was executed. We reach then the final and decisive question: What possession is James shown to have had when the mortgage was executed? He actually occupied the house, and so much of the ground as he was actually cultivating. But it is not shown precisely where the house was, nor what ground he was cultivating. Unless, then, his possession extended beyond his occupancy he must fail. My associates claim that it did. • For the purposes of this opinion it may be conceded that where a person acquires the equitable title to a half section of land and occupies any *225part of it, he will be deemed to be in possession of the whole unless some other person is to be deemed in possession of the unoccupied part.
But in the case at bar I think it is to be deemed that Daniel O. Connelly was in possession of the unoccupied part. At the time of the alleged settlement with James his father was in possession of the whole section of which he had the title. The legal title to the section alone would have given him constructive possession, but he lived upon and had his farm upon the section. He had then what is to be deemed the actual possession of the whole. Now that actual possession must I think be deemed to have continued except so far as it was excluded by James5 actual occupancy. In Bradley v. West, 60 Mo., 40, the court said: “Where the legal owner is in possession of part of the land of which he has the fee, the law invests him with the possession of the whole, and he can only be dispossessed by actual ouster, and a person entering upon the land not having the legal title will be restricted in his possession to the part actually occupied.” It may be thought that the case is not applicable to this, because in this case the controversy is not between James and his father, and that his father must be deemed to have put James in possession of the whole. But the fact still remains that so far as anything was actually done, James was not put in possession of more than he actually occupied, and nothing was done to exclude the actual prior possession of the father of the part that was unoccupied.
In my opinion the decree should be reversed.