Hard v. Alexander

1 Ky. Op. 525, 1867 Ky. LEXIS 325

• Court: Court of Appeals of Kentucky
• Decided: April 24, 1867
• Status: Published

Opinion

Opinion of the Court by

Judge Hardin:

Whatever may be the effect of Crutcher’s declaration at the sale of the property by the marshal, with regard to the claim of the appellants as against him, as to which it is not necessary now to intimate an opinion, and however the title of the appellee might have been thereby affected, if he had acquired it, with notice thereof, to himself or agent, the evidence does not in our opinion authorize the conclusion either that the purchase was made, or the title accepted by the appellee, with such notice to himself or any agent or attorney through whose knowledge he was liable to be affected with notice, actual or constructive.

Although it appears that Charles P. Eudd, who was an attorney-at-law, made inquiry in relation to the title, and consulted the late Chancellor Logan as to its validity, at the instance of E. H. Eudd, who was the agent of Alexander in his absence, and the evidence conduces to show that Charles P. Eudd upon his instigation acquired and communicated to Logan such information concerning the object and character of Crutcher’s purchase as would if communicated to Alexander, his agent, or authorized attorney, have constituted notice of the facts, and affected his -title with such prior equitable rights as the appellants may have had in the property while in the hands of Crutcher, it does not appear that either Charles P. Eudd or Logan was the agent or authorized attorney of Alexander, or that what they did at the instance of E. H. Eudd, or as the friends of Alexander, placed them or either of them in such fiducial relations with him, as that notice to them constituted constructive notice to him.

The evidence does not authorize the inference of actual notice of said facts to either Alexander or his agent till after the sale and conveyance from Crutcher and the payment of a considerable part of the purchase money.

As to the effect of notice acquired after the sale and conveyance but before the entire payment of the purchase money, we concur in the opinion expressed by the chancellor, that the rule that to be a purchaser without notice' the party must have both received the conveyance and paid the entire consideration “ is only or absolutely true as to the purchase money paid after notice,-not as to what is paid before.” In our opinion it does not extend further than to give the party asserting the prior equitable right the right to enforce his claim as against the purchaser to the extent of purchase money owing or paid after notice of the claimants’ equity, with a lien on the property to secure its payment* But the relief sought by the appellants as against Alexander is not of this description, but it is to vacate the sale and conveyance from Crutcher to him and recover .the property on restoring the purchase money, or such balance as might remain upon an equitable adjustment of interest, improvements, and rents.

Wherefore, concurring in the conclusion of the chancellor, as to so much of the judgment as is revisable on this appeal, the judgment dismissing the action as to Alexander is affirmed.