
    Eli McKinzie v. Jeptha Perrill and others.
    X. A purchaser of land in the actual possession of a third party, is chargeable with notice of any equitable title of the party in possession, whatever the same may prove to be.
    
      2. The holder of a naked legal title to land, will not, as against a plaintiff in possession of the land, and asserting by action an equitable title thereto, be permitted to set up a countervailing equity in a third person with whom he is not in privity, and who, being also a party defendant to the action, by his default confesses the equitable title of the plaintiff.
    Civil action. — Reserved in the district court of Ross county.
    The plaintiff filed his petition, May 22,1858, in the court ■of common pleas, to enjoin the execution of a judgment in -ejectment recovered by the defendant, Perrill, against the ■plaintiff, in the district court of Ross county, for the lands in «■controversy, and to obtain other equitable relief.
    The case made by the petition is, in substance, as follows:
    That Samuel'Turner, the common source of title, in March, 1816, sold a tract of land, including the parcel in dispute, to ‘George Denny, who paid him for it. Before Denny purchased, ihe and Turner went upon the land, and the latter pointed out .the boundaries of the entire tract, and the sale and purchase ■were made in reference thereto. The deed was made and the ■ description therein was supposed and intended, by both vendor ;and vendee, to cover the entire quantity of land included ■within the boundaries thus pointed out. The deed was delivered, with full possession of the whole tract, under this Impression.
    
      In September, 1818, Denny sold and conveyed to Isaac Evans.
    In April, 1825, the United States marshal, having sold the premises at judicial sale under an execution on a judgment against Isaac Evans in the United States district court in the district of Ohio, executed a deed to Hugh W. Evans, the purchaser, in pursuance of an order of court confirming the sale and ordering a deed. Under this deed Hugh W. Evans received peaceable possession of Isaac Evans.
    On June 10, 1830, Isaac Evans and wife executed a deed of release to Hugh W. Evans, supposing themselves to be thereby conveying their interest, if any, in the entire premises.
    In 1835, Hugh W. Evans sold and on August 27,1836, conveyed to the plaintiff.
    In these successive sales and conveyances the premises intended to be sold and conveyed were the same purchased by Denny of Samuel Turner, and the several deeds described the lands the same as they were described in the deed from Turner to Denny, and, with the several deeds, the possession of the entire tract of land intended to be conveyed, was delivered.
    The several purchasers not suspecting any defect in the description, but supposing their ownership to embrace the whole tract, went on and made lasting and valuable improvements, and particularly the plaintiff.
    Samuel Turner from the time he sold to Denny up to the time of his death in 1845, lived in the neighborhood of the premises and was fully aware that the several purchasers, and particularly the plaintiff, were making these improvements on the premises in controversy, under the belief that they owned them.
    After the plaintiff purchased and received his deed, however, it was discovered by Samuel Turner, and afterward by others, that the description perpetuated in the several deeds was, by mistake, defective, and although intended to, did not in fact, embrace the disputed parcel of land. After Samuel Turner discovered this mistake, and before the plaintiff became aware of it, the plaintiff continued to improve and expend money on the parcel, and Samuel Turner knew it, but con • cealed the mistake and its discovery, and told the plaintiff that his title was good' to -the whole tract — that Denny had pur* chased the whole.
    In October, 1845, Samuel B. Turner, a son of Samuel Turner, well knowing the facts of the case, procured a release of the premises in dispute from his father for .the nominal, consideration of one dollar, but in reality for nothing.
    On May 7, 1846, the defendant, Perrill, well knowing all these facts, procured a quit claim of Samuel B. Turner, and although he lived near the premises ever since the plaintiff purchased and went into possession and made improvements under the supposition that his title was perfect, the defendant, Perrill, brought ejectment in Ross common pleas, became non-suit and appealed to the district court and there at May term 1858 recovered a judgment, and is proceeding to eject the plaintiff.
    By amendment to the petition, the heirs of Isaac Evans, who is deceased, were made parties, and the plaintiff therein alleges against them the acts of their ancestor and against him and them peaceable, notorious, adverse and uninterrupted possession for more than twenty-one years.
    Perrill answered the petition, denying, in substance, the material facts stated by the plaintiff as the grounds for rejief:
    The heirs of Isaac Evans failed to answer or demur to the petition.
    At the June term, 1860, of the court of common pleas, the cause was tried, and the court entered judgment against the heirs of Isaac Evans by default, and ordered them to execute and deliver to the plaintiff deeds .of release for the premises in controversy and that on failure so to do, that the judgment operate as a release, etc.
    The court further found against the defendant, Perrill— ordered him to execute a release to the plaintiff, and, on failure, that the judgment operate as such, and further forever enjoined him from executing his judgment in ejectment.
    
      Perrill appealed to the district court. The heirs of Isaac Evans did not.
    At the October term, 1861, of the district court, the cause came to trial,, and the court found the following facts, and reserved the case thereon to this court for decision, to-wit-:
    “ 1st. That by the contract of sale made by the said Samuel Turner, to George Denny, in 1816, mentioned in the plaintiffs petition, it was the intention of said Samuel Turnei to sell, and said Denny to buy the whole of the premises then owned by said Turner in Nathaniel Massie’s survey, No. 2461, and including the premises now in controversy, but that said premises now in- controversy were not embraced in the deed executed and delivered by said Turner to Denny, dated.20th March, 1816, by mistake and contrary to the intention of both parties.
    “ 2d. That said Denny intended to sell, and the said Isaac Evans intended to buy the whole of said premises including the land in controversy, but that said land in controversy was not embraced in the deed from Denny to said Isaac Evans bearing date 10th September, 1818, but were omitted therefrom by mistake.
    “3d. That said Samuel Turner, in making sale of said premises to said Denny, surrendered the same to said Denny, and the said Denny, in making sale thereof to said Isaac Evans, surrendered said premises to said Evans, but the possession of said Denny and of said Evans was not such an actual and continual possession as would give them or either of them a title by disseizin or adverse possession.
    “4th. That the title of the said Hugh W. Evans, under whom the plaintiff claims, was acquired solely under and by virtue of the judicial sale referred to in the plaintiff’s petition and the deed made in pursuance of such sale by William Doherty, marshal of the district of Ohio, to said Hugh W. Evans, bearing date April 23, 1825, referred to in said petition, and offered in evidence by the plaintiff, and on file in this cause marked Exhibit No. 3, and by virtue of the deed executed by the said Isaac Evans and wife to said Hugh W. Evans bearing date June 10, 1830, referred to in said petition, and offered in evidence by tbe plaintiff, and on file in this cause marked Exhibit No. 4; neither of which said deeds embraced the lands in controversy, but do embrace the lands described by metes and bounds in said deeds from Samuel Turner to Greorge Denny, and from said Denny to said Isaac Evans.
    “’5th. That the said Hugh W. Evans, after the execution and delivery of said marshal’s deed to -him, took possession of the lands described in said deed, and also of a part of the land now in controversy, and claimed the ownership of all of said land from the time of the execution of said marshal’s deed to him until the said sale to the plaintiff. The greater part of said premises in controversy remained uninclosed and unoccupied until the plaintiff inclosed and occupied the same after his purchase from said Evans in the year 1836.
    “ 6th. That it is established by parol proof offered herein and admitted subject to exceptions, that the object and purpose of said deed from said Isaac Evans and wife to said Hugh W. Evans was merely to procure a release to said Hugh W. Evans of the inchoate right of dower remaining in said wife of Isaac Evans, and that the said Evans and wife supposed that the lands described in said deed embraced the premises in controversy, but that such supposition was based on the belief or supposition'that the description in said marshal’s deed embraced said lands.
    “ 7th. That at the time of the conveyance by said Hugh W. Evans to the plaintiff as evidenced by the deed of said Evans to the plaintiff bearing date August 7, 1836, and on file in this cause, marked Exhibit No. 5, the plaintiff supposed he was buying, and the said Hugh W. Evans supposed he was selling, not only the lands described by metes and bounds in said deed, but also the premises in controversy; and accordingly the said McKinzie took possession not only of the lands embraced in his said deed, but also of the lands in contro* versy, and soon after, as early as the years 1837 or 1838, inclosed the same and continued to occupy, improve, and cultivate the same, with the knowledge and tacit acquiescence of said Samuel Turner uninterruptedly down until after the conveyance of the premises in controversy by said Samuel Turner to said Samuel B. Turner on October 2, 1845, and by the latter to the said Jeptha Perrill on May 7, 1846.
    “ 8th. That said Perrill purchased said premises in controversy from said Samuel B. Turner, as evidenced by the deed of the latter to said Perrill, bearing date May 7th, a. d., 1846, and on file in this cause, marked Exhibit No. 6, for a valuable consideration, and without any actual or other notice of the plaintiff’s alleged claims, rights, and equities in said premises than the said possession of the plaintiff furnished or charged him with, in law, and that he had no notice, at the time of his said purchase, of any claim, right, or equity of the said Isaac Evans, or of his widow and heirs, parties herein, in said premises, or of any other person whomsoever.
    
      Alfred Yaple and 8. L. Wallace, for plaintiff.
    
      Hunter ‡ Daugherty and McOlintieJc &¡ Smith, for defendant Perrill.
   Brinkerhoee, G.J.

From the facts found by the district court it appears that when Samuel Turner, the common source of title, conveyed to Denny, and Denny to Isaac Evans, the grantors in those deeds of conveyance, respectively, believed they were conveying, and intended to convey — and the grantees believed they were receiving, and intended to receive, a perfect title to the entire tract of land described in the petition, including that part of the tract now in controversy between the parties; but, by mutual mistake, the terms of description employed in the deeds of conveyance did not embrace that part of the entire tract now in dispute. And, throwing out of view, for the present, the sale by the United States marshal to Hugh W. Evans, and the subsequent release to him by Isaac Evans and wife — the same remarks are true in respect to the conveyance from Hugh W. Evans to the plaintiff.

Thus far, then, we trace to Isaac Evans, and find in him a perfect equitable title to the entire premises; leaving nothing but a naked legal title in Samuel Turner, or in the parties claiming under him with notice of the outstanding equitable title. And, in respect to the matter of notice, it may here be remarked, once for all, that at the time Samuel Turner undertook to convey to his son, and he to the defendant Perrill, the plaintiff was in the actual possession of the entire tract, and both Perrill and the Turners, therefore, were conclusively chargeable with notice of the plaintiff’s equitable title, whatever that might prove to be. House v. Beatty, 7 Ohio Rep. pt. 2, 90; Kelley v. Stanberry, 13 Ohio Rep. 426; Williams v. Sprigg, 6 Ohio St. Rep. 594. And whoever else may have, it is clear that the defendant Perrill has not the equitable title to the land in question.

It does not appear, nor is it claimed, that Isaac Evans, in whom the equitable title clearly vested, ever attempted any conveyance of the premises to any one, except by the deed of release by himself and wife to Hugh W. Evans, after the purchase by Hugh W. at the marshal’s sale; and, therefore, if the equitable title did not pass by that deed of release to Hugh W., and so to the plaintiff, it vested by descent in the heirs of Isaac Evans, where, for aught that appears, it still remains.

The sale by the United States marshal was, as to Isaac Evans, in invitum, and to it the doctrine of caveat emptor applies in all its strictness; and the plaintiff neither can, nor does, claim anything through the medium of that sale and conveyance.

The final question in the case then arises : Did the equitatable title to the land in dispute pass from Isaac Evans to Hugh W., by the deed of release from the former to the latter ? The plaintiff has made the heirs of Isaac Evans parties defendant to his petition, in which he claims the equitable title to these premises through the medium of this deed of release from their ancestor, and as against them. They have the equitable title if the plaintiff has not, but they fail to answer; •and, by their default, they conclusively confess the allegations and claims of the plaintiff against them. Code of civil procedure, sec. 127. This, it seems to us, completes the plaintiff’s chain of title in equity, and is conclusive of the case in his favor. The defendant, Perrill, holds the naked legal title, and he is to be regarded as a trustee for the owner of the equity.

It is true, the district court find, as a matter of fact, established by parol testimony, admitted subject to exceptions, that while Isaac Evans and wife supposed that the terms of description employed by them in their deed of release to Hugh W., embraced the entire tract of land, yet the object and purpose of said deed was merely to release the wife’s inchoate right of dower therein. But, waiving all other questions as to the competency of this proof, it seems to us that the defendant, Perrill, can not be allowed thus to set up a countervailing equity in third persons, with whom he is not in privity, and who, being parties to the suit, by their silence disclaim for themselves, and in the plaintiff’s favor, the title, which he, a stranger, seeks to thrust upon them.

Decree for plaintiff.

Scott, Ranney, White and Wilder, JJ., concurred.  