This was an action instituted on the twentieth day of August, 1879, by the plaintiffs as the sole heirs at law of William B. Mason, Sr., deceased, to divest the defendant of the title to the lands in controversy, and vest such title in plaintiffs. The substantial allegations of the bill are:
“That on the sixteenth day of July, 1856, plaintiffs’ ancestor appointed one Gleo. W. Cauthorn, as his ;agent to enter and purchase Missouri lands for ,him, and entrusted to his said agent large sums of money for that purpose; that on the day last mentioned, said Cauthorn, ‘ with, some of the money so furnished, as aforesaid, and .in pursuance of the agency aforesaid, purchased in be•half of, and for their said ancestor, of one Daniel M. Turney,’ the lands in controversy, among other lands, ;and out of the money aforesaid paid to said Turney the purchase price thereof; and that said Turney thereupon made to deceased a deed for said land, and delivered the same to Cauthorn and his agent; that said deed was never recorded or delivered to their ancestor, or them■selves. That on January 27, 1876, said Cauthorn, by false and fraudulent representation, procured from Turney a deed, whereby he remised, released, and quit-■claimed to one Thomas B. Crowder, £ all the right, title, interest, and estate, that he had in and to said land,’ with the following clause therein written : ‘ It is intended to convey, by these presents, all title of which I am vested this day, and not to invalidate any sale heretofore made, if any exists; ’ that said quit-claim deed was ■duly recorded 'February 9, 1876, and that thereafter, •on June 26, 1877, said Crowder conveyed ' said lands by a deed (with the usual and general covenants of warranty to the defendantThat Crow'■der, at the time of the execution of both these deeds, ‘OT>d the 8 pf end ant, at the time and before the execution of the deed last aforesaid, had notice of plain*335tiffs’ancestor’s title; ’ that neither Canthorn, Crowder, nor Black, ever made any claim to the land until within ten years prior to the institution of the suit, and that the land was never occupied until after defendant’s. purchase ; that the two deeds last aforesaid are a cloud upon plaintiffs’ title, and concludes with a prayer for a •divestiture of title apparently, in defendant, and a decree for title in plaintiffs.”
The answer was a general denial, except that defendant admitted possession under a claim of title ; and then alleges that defendant “purchased said land and took possession thereof in good faith, believing that Crowder was the true owner thereof, free of all adverse •claims and equities, and at the time of making said purchase he agreed to pay therefor the sum of nine hundred •dollars, which is the full value of said land, and that said purchase price he paid to said Crowder on or about the twenty-sixth day of June, 1877, the sum of eight hundred and fifty dollars, all of which was paid before he had any notice of plaintiffs’ claim, or that of said ancestor, W. B. Mason, to said land, and without any notice of said quit-claim deed, or the recitals therein, except such notice as is given constructively by the record of said deed.”
The evidence at the trial was voluminous, and we do not think it necessary to camber the record with it in ■detail. The plaintiffs offered a patent from the United States to Daniel M. Turney for the land described in the petition. Also a quit-claim deed from Turney to Thomas B. Crowder, filed for record the ninth of February, 1876. Various records of deeds and entries of public lands, and witnesses, and depositions were introduced, tending to prove, substantially, that Geo. W. Cauthorn acted as the agent of William B. Mason,' deceased, the ancestor of plaintiffs ; that Mason resided in Kentucky, and furnished Cauthorn large sums of money to enter and. buy and sell lands for Mason, in Missouri, and that Cau*336thorn was Mason’s on]y agent for that purpose in 1856, 1857, 1858 and 1859 ; that Cauthorn attempted to enter, as Mason's agent, a part of the land in controversy, which was cancelled for some reason, and in July, 1856, it was entered by Daniel ‘M. Turney. That, including the land entered by Turney, and by Cauthorn, for Mason, in Daviess county, there were six hundred and eighty acres; that four hundred and sixty acres had been sold by Mason in 1868, leaving two hundred and twenty acres, the record showing one hundred acres, in his name after the sale of the four hundred and sixty acres. That up to and including 1868, Cauthorn, as Mason’s agent, had six hundred and eighty acres assessed as the land of William B. Mason, that assessment including the land in controversy, and that he, as such agent, paid the taxes thereon, and afterwards admitted to the witness, C. T. Mason, that his (Mason’s) father owned two hundred acres of prairie and twenty acres of timbered land in Daviess county.
The evidence also tends to prove that plaintiffs had another suit for other lands in Daviess county against Thomas B. Crowder, included in the six hundred and eighty acres, and recovered one hundred acres, making five hundred and sixty of the six hundred and eighty claimed. That on December 7, 1872, Cauthorn wrote to Mason, the ancestor, for money to pay taxes on two hundred and twenty acres of land in Daviess county; that on December 1, 1873, Crowder wrote to Mason that “at the sale of delinquent lands in Daviess county, in October last, I bid off two hundred and twenty acres of land belonging to you for the taxes of 1872.” That afterwards Crowder and Cauthorn refused to give the numbers of land to Milt. Ewing, Mason’s attorney, on his application therefor. The quit-claim deed from Turney to Crowder contained the following clause: “It is intended to convey, by these presents, all title of *337which I am vested at this day, and not to invalidate any sale heretofore made, if any exists.”
Amongst other things, Daniel M. Turney testified as follows: “In the fall of 1857 I moved to Ray county, Missouri, from Plattsburg, and knowing that I would be applied to, from time to time, for deeds, by parties for whom we had entered land in my name, I copied from this original entry book, a list of all entries of land in my name, which I had not conveyed. The original entry book was burned when Thomas E. Turney’s office was burned several years ago. I have examined the list so made and do not find the land in controversy on the list. I met Cauthorn occasionally ; he never mentioned this land to me, since the entry, up to the making of the quit-claim deed to Crowder. Cauthorn and ’ Squire Provolt, a notary, came to my house with the quitclaim deed to Crowder. Cauthorn said I had never made a deed to any one for the land in controversy, and requested me to make a deed to Crowder, as he had sold to him ; told him then I was under the impression that I had conveyed it; he insisted that I had not. I told him that I thought I had; don’t know that I told him .to whom I thought I had deeded it, but if I mentioned any one, it is that I had deeded it to Mason; that was where my thoughts were. The clause in the quit-claim deed was in my hand-writing, and 1 inserted it simply because I thought I had deeded it to Mason, and wanted to protect him, and not be maleing two deeds to the same land. I refused to sign until I had inserted the clause.”
The evidence then shows that the deed from Crowder to Black, the defendant, was made June 26, 1877, and the evidence then tends to prove that a few months before, Cauthorn offered to sell the land to Black; That before the defendant bought, he and his uncle, J. W. Black, spoke of Cauthorn as Mason’s agent for *338'entering land ; that defendant asked his nnole if Crow•der was solvent. That prior to his purchase Black got .an abstract to the title showing that Turney’s deed to 'Crowder was a quit-claim deed. The evidence tends to •prove that Cauthorn, in speaking of the land, said: I never bought any other land from Turney except “the one hundred and twenty acres in section nine, township fifty-eight, range twenty-nine, for any one,” and that Turney never did any other business with Cauthoni. The evidence tends to prove that the ancestor, Mason, furnished a large sum of money to C. W. Lambeth, and by him to Cauthorn.
Daniel M. Turney testified: “ My recollection is "that I made the deed to Mason that day. I know the .-money was paid that day. We always cleaned up the -business every day. There was no reason why deeds •should not have been made; it could have been done in five minutes, the clerk’s office being just across the way. I have no recollection of Cauthorn’s mentioning rfche matter from that clay, until the day he came for the ■quit-claim deed to Crowder. I had no mind or thought .that I was carrying that land for Cauthorn. Just as quick as possible, after entry, deeds were made, or cerr tificate signed. If money was paid, deeds were made, .even if we retained thém. I never knew Cauthorn to be acting for any one but Mason. I know from what- he told me and his doing business with Charles Birch, whose ■office was next door to me. Cauthorn had spoken to me about his insolvency. I would not have withheld from any one, making inquiry, information as to whom I believed I had deeded the land.”
At the close of the evidence the plaintiffs asked leave to amend their petition by striking therefrom the following words : “ That the two deeds last aforesaid are :a cloud upon plaintiffs’ title,” which motion was refused? and plaintiffs excepted. Thereupon, the court, as it ap*339pears by its judgment of record, found for the defend-ant for costs, and dismissed the plaintiffs’ bill.
The bill of exceptions states: “And, thereupon, the ■court found from the evidence that the land in controversy was purchased with the money of William B. Mason, and that Daniel M. Turney had conveyed the •same to said Mason, but dismissed the bill upon the ground that the defendant, Black, had not sufficient notice of the equities of plaintiffs’ said ancestor, William B. Mason, and that the bill was, in effect, a petition to remove a cloud from plaintiffs’ title, and could not be maintained, as the defendant was in possession.” The plaintiffs then filed their motion for a re-hearing, because the court erred in dismissing the bill upon the ground “that defendant Black had no notice of the rights of the plaintiffs’ ancestor, and that the bill was an action to remove a cloud upon the title of plaintiffs, and could not be maintained unless the plaintiffs had possession.”
I. The evidence presented in the bill of exceptions thoroughly convinces me that Mason, the ancestor of plaintiffs, furnished Cauthorn money to enter and buy lands as his agent; that as such agent he did buy lands for him, and that he bought the land in controversy from Daniel M. Turney, for Mason, and with his money. Wliat does the evidence mean if not this? Turney, in •substance, shows that he entered the land for Mason at the request of his agent, Cauthorn ; that the money was paid at the time, and he was so strongly of the belief that he had already conveyed the land to Mason, that he refused to make even a quit-claim deed to Crowder, at the request of Cauthorn, until he inserted in it a •clause that would notify all persons that he claimed no title ; but, on the contrary, rather disclaimed the right to sell. Years after, when he believed he had conveyed to Mason, Cauthorn comes with a quit-claim deed, and undertakes to convince Turney that the title was still in him and that he had not conveyed the land. Turney swears *340that Cauthorn. had said nothing to him about this land from the time he entered it, until he came with the quitclaim deed. The whole of the evidence, taken together, convinces me that Turney was right in his belief that he had deeded the land to Mason, and that it was Mason’s-money paid to him by Mason’s agent, Cauthorn, the evidence leaves no reasonable doubt in my mind. Turney says, in substance, that the money was paid on the day of the sale, and the deed made. What could he mean by saying the deed was made ? Surely not that he made deed and put it in his pocket. No other conclusion cars be reached than that the sale being made, and the money paid by the agent, Cauthorn, and the deed made, it would be, and was delivered to the agent who was then present, and had just paid the money. When A says : “ I sold land to B, and he paid me for it, and I made- a. deed on the day of sale,” he means, in common parlance, that he executed and delivered the deed. In the absence of anything to the contrary, it could mean nothing else. Delivery is as necessary as the making, but the proof of delivery, or what amounts to'a delivery, is a different thing. I think the almost irresistible conclusion, from the evidence, is that the deed was made by Turney and delivered to Cauthorn on the day of sale.
II. The question then arises as to the sufficiency of the notice to defendant. Was there actual or constructive notice to him of the claim of plaintiffs, and the condition of the title to the land he was about to purchase t Or did he have such information, as in contemplation of law, would put a reasonable man upon inquiry % But, first, let us inquire whether, when title to real estate has-been vested in a grantee by deed, which is lost or destroyed before being recorded, a court of equity will divest such grantor, or his heirs, of the title, and vest it in the grantee or his heirs. That question has been settled in the affirmative by this court, in Schaumburg v. Hepburn, 39 Mo. 125, where it was held that “ where a *341•conveyance of land, executed and delivered, but not recorded, has been lost, a court of equity will protect the rights of the grantee by enjoining any sale by the heirs or representatives of the grantor, and by divesting them of any claim, and establishing the title of the grantee and his heirs.”
Then as to the question of notice: Washburn, in his treatise on Real Property, states the rule to be that the law imputes to “ such purchaser a knowledge of all facts relating to the same land, appearing at the time of .his purchase upon the muniments of title which it was necessary for him to inspect in order to ascertain the sufficiency of such title.” Again: “What would be constructive notice in such cases, may be said to be a knowledge by the purchaser of some fact which would put him upon inquiry, and require him to examine other matters that would generally unfold the true title.” See, also, 1 Story’s Eq., sec. 400 ; Hamilton v. Nutt, 34 Conn. 501; Orrick v. Durham, 79 Mo. 174, and authorities cited. In Brush v. Ware, 15 Pet. 93, the court says: “The question is not whether the defendant, in fact, saw any of the muniments of title, but whether he was not bound to see them. It will not do for a purchaser to close his eyes to facts ; facts which were open to his investigation, by the exercise of the diligence which the law imposes. .Such purchasers are not protected. When a purchaser cannot make out his title except through a deed that leads to a fact, he is affected with notice of that fact.” See, also, 5 DeG., M. & G. 1; Bacon v. O'Connor, 25 Tex. 213. In Mertins v. Jolliffe, 1 Amb. 311, the same doctrine is held, when Lord Hardwicke, Chancellor, said “that where the purchaser cannot make out a title, but by a deed which leads him to another fact, the purchaser shall not be a purchaser without notice of that fact, but shall be presumed cognizant of it; for it is crassa negligentia, that he sought not after it.” The same doctrine is main*342tained in Van Doren v. Robinson, 1 C. E. Green, 256 ; Cox v. Milner, 23 Ill. 476.
Again, in Rhodes v. Outcalt, 48 Mo. 370, this court says: “ A notice is regarded in law as actual when the party sought to be affected by it knows of the particular fact in question, or is conscious of having the means of knowing it, although he may not employ the means-in his possession for the purpose of gaining further information.” * * In Speck v. Riggin, 40 Mo. 405, this court says: ci Notice may be either actual or-constructive. It is actual when the purchaser either knows of the existence of the adverse claim' or title, or is conscious of having the means of knowledge. * ■ Constructive notice is a legal presumption and will be conclusive unless rebutted, and in many cases it cannot be gainsayed or denied, even by evidence-of the absence of actual knowledge or notice.” See, also, Fellows v. Wise, 55 Mo. 413 ; Scott v. McCulloch, 13 Mo. 13 ; Muldrow v. Robinson, 58 Mo. 331. In Kearney v. Vaughan, 50 Mo. 284, this court held: “ A purchaser of land who buys of one who, as he supposes, has the legal title, but who informs him that, even if it be so, he does not own the property, azzd makes no claim to it,- and for a nominal consideratiozz obtains from him a quitclaim deed, cannot be called an innocent purchaser, and. cannot be protected either in equity or uzzder the registration act.”
In the case of Foster v. Holbert, 55 Mo. 22, the evidence showed that when ‘£ Holbert applied to Dunn for a quit-claim deed, he told him that he had no claim to the land; Holbert replied that the record showed no-deed from him, and he then executed the quit-claim deed.” In commenting ozz this evidence, Judge Adams-said: £iWhat took place between Dunn and Holbert, when he took the quit-claim deed, amozznted to actual notice of the prior unrecorded conveyance by Duzzzz to-Poster. Dunn told him he had no title, and under the cir*343cumstances that deed could convey only such title as he had'.” Now what are the facts in this case, as far as the defendant is concerned ? In conversation with his uncle,, before the purchase, and in contemplation thereof, the subject of Mason’s entering land, and that Cauthorn was-his agent, and the solvency of Crowder was also discussed. That before the purchase Black got an abstract of the title, which showed that Turney’s deed to Crowder was a quit-claim deed. That some months before he-bought, Cauthorn had offered to sell him this land, and said he would give him any kind of a title he wanted and the record of the deed from Turney to Crowder with this clause in it: liIt is intended to convey by these-presents, all title of which I am vested at this day, and not to invalidate any sale heretofore made, if any exists.” This deed, being on record, is at least constructive notice of its contents to defendant, whether he ever-saw it or not. It was his duty to see it. Take this evidence, and it appears clear that, before the purchase, the defendant had in his mind the question of the validity of the title he was to get from CroAvder, and hence wished to know if Crowder AAras solvent, and could respond in case the title failed. He Avas told that CroAvder was solvent. He had the fact called to his mind in the conversation with his uncle, that Cauthorn had been Mason’s agent and had entered land for him. Why Avas this question discussed unless it had some connection with the trade then under «consideration ? Then the peculiar clause in the quit-claim deed to CroAvder from Turney. What would be the natural inquiry suggested by an examination of this deed ? “All title of Avhich I am vested this day,” might not, of itself, point to anything Avrong, but take it in connection with the balance of the sentence, “and not to invalidate any sale heretofore made, if any exists.” A prudent man, Avith this-clause staring him in the face, Avould hesitate to invest his money without further inquiry; especially Avhen *344that inquiry could have been so easily made of the very man who thus raised a question as to the validity of his own title.
Indeed, it would seem sufficient to notify any purchaser that Turney believed he was selling nothing by his quit-claim deed. This clause placed before the purchaser the fact that Turney’s title and conveyance were, of very little value, and amounted to a suggestion that the truth could be ascertained-by a simple inquiry of the grantor. This inquiry was not made, and we are of opinion that it amounted to gross negligence, for which defendant must suffer the consequences. By his quitclaim deed, Turney constructively notified all persons (it being of record), that he was only conveying such title as he had, on the day he made the deed, and that, in his opinion, he had conveyed all his title thereto previously.
III. If it be true that at the time of the sale from Turney to Mason he executed and delivered a deed to Cauthorn, Mason’s agent, then the plaintiffs had no cause of action against Turney, and none against Crowder, of course, until his purchase in 1876, and none against the defendant, Black, until he purchased from ■Crowder, and took possession in 1877, and there is, therefore, nothing in the position that plaintiffs are barred by the statute of limitations.
IV. The respondent insists that the circuit court did not err in dismissing plaintiffs’ bill, because plaintiffs, not being in possession, cannot go into a court .of equity to have a cloud removed from their title, as against one in possession holding under a deed. And the case of Clark et al. v. The Covenant Mutual Life Insurance Company, 52 Mo. 272, is cited as authority for that position. It is stated in that case that “the settled rule is, that when a defect appears upon the face of the record, through which the opposite party can alone claim title, there is not such a cloud upon the title as to *345©all for the exercise of the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, it presents a case for invoking the aid of a court of equity to remove it as a cloud upon the title.”
The case at bar would seem to fall precisely under the rule stated, in that no defect appears upon the face of the record. The conveyances, themselves, to the defendant, on their face, are perfect: Crowder to defendant ; Turney to Crowder, and from the United States to Turney. The plaintiffs’ equitable title must appear, if at all, by extrinsic evidence, and that evidence £< particularly depends upon oral testimony to establish it.” Here there is no remedy at law. Plaintiff has an equitable title, if any. He could not maintain ejectment without resorting to extrinsic oral evidence of that equity. There being no defect apparent on the face of the conveyances to the defendant, the courts of equity clearly have jurisdiction. In the case of Piersoll v. Elliott, 6 Peters, 95, Chief Justice Marshall dismissed the bill “ because the deed therein mentioned being void at law, for matter apparent on its face, the plaintiff had not shown any circumstances which disclosed a case proper for the interference of a couft of equity to relieve against such void deed.” The case of Eck v. Hatcher et at., 58 Mo. 235, was a bill by one not in possession against the defendants, who were in possession, to set aside conveyances alleged to have been fraudulently obtained by the defendants, in which, Napton, J., said : “We shall, therefore, reverse the judgment of the circuit court, and this court will proceed to decree that all the deeds shall be cancelled, and that the plaintiff is entitled to the possession of the premises in controversy, and that an appropriate Avrit issue for that purpose from the circuit court.” The case of Bunce v. Galla*346gher, 5 Blatchford, 481, was where one out of possession.. filed a bill in equity against one in possession to have a forged deed cancelled. The general statement that one not in possession cannot bring a bill in equity to quiet title, or to remove a cloud therefrom, is, we think, -too-broad. That is, doubtless, the rule in cases where the complainant has the legal title, because, in such case, he may maintain ejectment for possession. But where the-complainant has only an equitable title, and the legal title is in the defendant, the rule does not apply. In that case the complainant cannot sue at law, because he-has no legal title, and hence can only assert his right in a court of chancery.
In the case at bar the defendant is in possession under a claim of legal title, with his deeds regular on their face, showing no irregularity whatever. How, then, can complainant assert his right unless through a court of equity. Almony v. Hicks, 3 Head (Tenn.) 39. Hence it is difficult to understand upon what ground his right to the aid of a court of equity can be denied. Having only an equitable title, and being in possession, he may be ousted by an ejectment, if not in possession he cannot obtain it, because he will, be opposed by the legal title. If in possession he cannot bring ejectment, because he has no legal title, and because he already has possession. But, having the superior equity, and the defendant being in possession, courts of equity can alone aid him. Brandi v. Mitchell, 24 Ark. 431; Eck v. Hatcher, 58 Mo. 235; Herrington v. Williams, 3 Tex. 448 ; 31 Md. 119.
In Mead v. Knox, 12 Mo. 247, it is said by Napton,. Judge: “It is not denied that a court may grant, under the prayer for general relief, a relief different from the specific relief sought.” In Newham v. Kenton, 79 Mo. 382, Philips, Commissioner, said: “A decree in. equity must be founded upon facts consistent with, and .embraced within the pleadings.” In Henderson v. Dickey, 50 Mo. 161, Wagner, Judge, said : “Under our *347statute, the court, in an equity case, may give any relief consistent with the allegations in the pleading.” In Ames v. Gilmore, 59 Mo. 537, the same rule is laid down. Section 3692, Revised Statutes, 18.79, provides that: £ £ In all cases where judgment is given for the conveyance of real estate, or the delivery of personal property, the court may, by suplí judgment, pass the title of such property, without any act to be done on the part of the defendant.” Section 3693, provides : ££ The court may issue a writ of possession, if necessary, to put the party entitled into possession,” etc.
In the case at bar, the bill alleges facts which, being proved, entitles complainants to a cancellation of the deeds from Crowder to defendant, and from Turney to Crowder ; and to divest Crowder and the defendant, Black, and Daniel M. Turney, of the title to the land sued for, and that the title thereto be vested in the complainants. The conveyances from Daniel M. Turney to Thos. B. Crowder, and from said Crowder to the defendant, Black, are cancelled. The title to said real estate in said Turney and Crowder, and defendant, Black, is hereby divested, and is vested in the complainants, and the judgment is reversed and the case remanded, to be further proceeded with in accordance with this opinion.
All concur.