
    *Joseph R. Williams v. Daniel Sprigg.
    A conveyance by deed can take effect, as such, only upon the legal execution and delivery of it to the grantee; but an imperfectly executed deed may operate as a contract of sale from the grantor, so as to create an equitable estate in the purchaser, if it be plainly shown that the instrument was intended as a conveyance of the land, and was accepted and treated as such by the vendee.
    ■Constructive notice of a prior equity, arising from the use and occupation of land, must, to charge a subsequent purchaser, be communicated by such acts as can be readily seen and understood — by something so tangible in form as to induce inquiry about the ownership and extent of the right thus to occupy. The use of a vacant, unimproved town lot, by the owner and his tenants of adjoining premises, as a yard in which to hang out and dry clothes, will not prevail as constructive notice against an interest acquired, while so used, by a bona fide mortgagee.
    
      'When a lot of land is held by tenants in common, and for the purpose of quieting the title by bill, the complainant who purchases from one of the tenants, and relies upon his possession taken under his purchase, as constructive notice to one claiming by later title from the same grantor, if the last purchaser have no actual notice of complainant’s equity, he is chargeable only •with knowledge of the interest of the co-tenant, who holds the legal title to the undivided interest. The occupation of the lot will, in the absence of proof to the contrary, be presumed to be the act of such part owner, and need not be regarded for any other purpose.
    In chancery. Bill to quiet title. Reserved in Lucas county.
    Edward Bissell made his deed, purporting to convey the whole of lot No. 311, in the Vistula division of the city of Toledo, to the complainant, for a consideration (Darned) of $3,000. The deed was acknowledged and filed for record on the 1st of June, 1838, but dated May 26, 1837. On the 10th of April, 1839, Benjamin F. Stickney conveyed, by a quitclaim deed, the same premises to the complainant, which *was recorded on the 18th of Juno, 1839. The [586 complainant claims under these two deeds.
    On the 12th of October, 1837, said Edward Bissell and his wife made to the defendant, then and ever since a resident of the city of Baltimore, in the State of Maryland, a mortgage upon said premises, and other lots in Toledo, to secure the payment of $6,996, in two equal annual installments, from the date thereof, and the same was deposited for record October 20, 1837. This mortgage was dated June 28, 1837, and contained a clause authorizing the defendant, in ease of default in the payment of the money secured, to sell the premises in manner provided by law. Subsequently, the defendant filed a petition to foreclose this mortgage, without making any party to his proceedings but the mortgagor. In March, 1843, a decree for $9,170 was, by the court of* common pleas, rendered for the defendant. All of the property described in the mortgage was appraised by freeholders, under the direction of the sheriff, at $4,400, which sum being insufficient to satisfy the decree, the equity of redemption of Bissell was declared to be barred, and a deed ordered to be made to the defendants for the several lots embraced in the mortgage, which, on the 2d of August, 1843, was by the sheriff accordingly done. The defendant now claims to hold the lot in controversy by virtue of said decree of foreclosure, but has never taken any steps against the complainant or his title, except by his defense in this suit. JBEe denies any knowledge of complainant’s equity in the premises at any time before March, 1841, and claims the entire lot, under his mortgage from Bissell and the proceedings to foreclose it, and also sets up a claim for taxes, by him paid for several years, on the lot.
    Benjamin F. Stickney was the original patentee of the land, and 587] *conveyed three-fourths of lot 311 to Bissell before the deed of the latter was made to complainant. The title to the other fourth part of the lot remained in Stickney till his conveyance to complainant, in 1839.
    The bill prays that the title of the complainant to lot 311 may be quieted as against the defendant’s claim thereto.
    Bissell has been examined as a witness, and states that complainant was the owner of the “American Hotel,” in Toledo, and that, lot 311 adjoined the hotel premises, and was unimproved by buildings; and whether it that year laid open as a common he can not positively say, but has an impression that the front fence was built, that summer. The lot was used principally as a yard in which to hang out and dry clothes, and for such other purposes as would be-convenient in the establishment, by the tenants of the hotel; and that Daniel Segur was, during 1837, such tenant; that the deed by him to complainant “ was signed and acknowledged at the respective times which the deed imports;” that he keeps a record of conveyances, and in his record the lot is set down as conveyed May 26, 1837.
    Other witnesses state, in substance, the same as Bissell does in regard to the possession and use of the lot by complainant. It is-shown to have had a fence on the west side of it; and beside the use of it by Segur as a clothes-yard, it had contained lumber and other trash that accumulated there when the hotel was being built, which Mason, one of them, says' he thinks were removed by complainant; that he thinks he saw the latter at work there some time in the summer of 1837; and that in May, June, or July, of 1837, he thinks Segur was in possession of the lot, using it in manner aforesaid, in connection with the hotel.
    Segur was examined as a witness by complainant, and stated that he went into possession of the hotel under Williams, in September, 588] 1836; but the question was not tasked him, nor did he state, whether, in any form or for any purpose, he occupied lot 311 during any portion of the time that he was tenant of the hotel.
    
      The “ American Hotel” is situate on lots 309 and 310, and covers the front of them. Lot 311 adjoins the hotel lots.
    
      Sill & Pratt, for complainant,
    made the following points:
    1. A deed, though imperfectly executed or not acknowledged, and insufficient to pass the legal title, is still good to pass an equitable title; it would be good as a contract for conveyance, and could be enforced in equity. Pritchard v. Brown, 4 N. H. 397; Burr v. Hatch, 3 Hammond, Ohio, 663; Carr v. Williams, 10 Ohio, 309.
    2. A purchaser of the land with either actual or constructive notice of such title, would bo.bound by and purchase subject to it. See same Ohio cases above cited.
    3. Possession of property by the holder of an equitable unrecorded title at the time of the conveyance to a subsequent purchaser, is good constructive notice to the subsequent purchaser of the prior claim. Tuttle v. Jackson, 6 Wend. 226; Brice v. Brice, 5 Barbour, 548; Welch v. Welch, 5 Ohio, 267; Kelly v. Stanbery, 13 Ohio, 408; Norcross v. Widgeny, 2 Mass. 508; Daniels v. Davison, 16 Vesey, 248-255; Spafford v. Manning, 6 Paige, 383; Webster v. Maddox, 6 Greenl. 256; Kent v. Plumer, 7 Greenl. 464.
    
      William Balter and J. J. French, for respondent:
    I. If the instrument of conveyance from Bissell to Williams be technically a deed, what áre the respective rights of the parties?
    1. It is well settled that a mortgagee is a purchaser. 1 Greenl. Cruise, 450; 4 Greenl. Cruise, 433, and note; Minor *v. Wal- [589 lace, 10 Ohio, 405. Sprigg, the respondent, then, is a subsequent bona fide purchaser.
    2. Swan’s Stat. 267, sec. 8, governs this case, and is the same as Swan’s Revised Stat. 310, sec. 8.
    Under this statute Sprigg must have had actual notice — notice in fact — knowledge—of Williams’ prior unrecorded deed, in order to-be divested of his subsequent title.
    II. If the instrument of conveyance, from Bissell to Williams, be technically not a deed, what are the respective rights of the parties ?
    1. At the time of his purchase, Sprigg had no constructive notice whatever of Williams’ equitable title.
    As to tho definition of “ constructive notice,” see McMahon v. Griffin, 3 Pick. 154; Story Eq. Jurisp., secs. 398-400, and note; 400 a.; 4 Greenl. Cruise, 452, and note; Jackson v. Giver, 8 Johns. 140, Norcross v. Widgery, 2 Mass. 509; Kendall v. Lawrence, 22 Pick. 545; Webster v. Maddox, 6 Green, 256; 4 Kent Com. (7 ed.) 179; Hive v. Dodd, 2 Atk. 275.
    
      2: “ Constructive notice arising from tenancy does-not extend beyond the tenant’s title, or apply to the title of the lessor under whom the tenant holds.” 4 Kent Com. (7 ed.) 190, and note; 2 Sugd. on Vend. (Am. from 9th London ed.) ch. 17, p. 399 (original p. 293); 2 Greenl. Cruise, 215 (original p. 196); 1 Story Eq. Jurisp., sec. 400; Daniels v. Davidson, 16 Ves. 249; Attorney-General v. Blackhouse, 17 Ves. 293.
    3. And we also claim that possession is constructive notice of no other interests than his, the possessor’s. And this position, we submit is fully established by the authorities above cited.
    
      Sill & Pratt in reply:
    I. Sprigg is not to be regarded as a Iona fide purchaser. Holliday 590] *v. Franklin Bank Of Columbus, 16 Ohio, 533-537; White v. Denman, 1 Ohio St. 110-114; Carter v. Goodin, 3 Ohio St. 75; Bloom v. Nogle, 4 Ohio St. 45.
    II. Complainant’s possession was sufficient to make a ease of constructive notice. It was actual, visible, notorious, open, continuous, and adverse. Hanrick v. Powell, 9 Ala. 409; Matthews v. Demeritt, 22 Maine, 312.
    Where a grantee planted willows upon land which he cut and used every year in his business as a basket-maker, his possession -was held sufficiently actual and notorious, to supply a failure to register his deed. Krider v. Lafferty, 1 Whart. (Penn.) 303.
    III. Possession by Segur, the tenant, was sufficient to protect the title of complainant. Ware v. Egmont, 31 Eng. L. & Eq., 89, 97; Sailor v. Hertzog, 4 Whart. (Penn.) 259.
    To record complainant’s defective deed would have been of no ravail. Swan Stat. 308, secs. 1, 7, 8; Bank of Muskingum v. Carpenter’s Adm’r, 7 Ohio (pt. 1), 21; Lake v. Doud, 10 Ohio, 415; White v. Denman, 1 Ohio St. 110.
    In conclusion, upon this point, we maintain that whatever may be the correct rule, as to constructive notice by possession of a tenant in other cases, where the landlord’s title is within the terms ■or policy of the recording acts, in this case where the landlord’s title was not within the terms or policy of the recording acts, possession by the tenant was sufficient; and so we understand the rule to have been expressly laid down in Hood v. Fahnestock, 1 Barr. (Penn.) 470. Conceding that the defendant’s equity is in other respects equal to the complainant's, still the complainant has a precedency in time, and must prevail
   Bowen, J.

Is the complainant entitled-to have a decree quieting ■*his title to the whole of the lot in dispute, upon the facts [591 .above disclosed?

In answering this inquiry, it seems proper, in the first place, to ascertain when he acquired an interest in the property, and whether the defendant’s lien had not, previous thereto, been perfected by virtue of the mortgage under which he claims. This latter instrument took effect and became operative on the 26th of October, 1837, as a valid incumbrance upon the lot. Any interest in the ■same premises, afterward obtained, must be held and deferred as posterior to it.

The deed under which complainant asks to be quieted in his title took effect, as a conveyance, on the 1st of June, 1838, more than seven months after the registry of the defendant’s mortgage. This is the date of its acknowledgment. Whether it had, before that time, been signed and attested by witnesses; does not appear. The •complainant insists that the sale to him of the premises was complete, and the deed made out and signed on the 26th of May, 1837, by means of which he gained an equitable estate, and that the acknowledgment made and attached to the same deed, more than a year afterward, secured in him the legal title, which is now paramount, and should be preferred to that of the defendant. If the -evidence which has been introduced sustained this assumption, an important stop would be thereby gained by the complainant in his •effort to obtain relief. But we are not able to. give to it that effect. Wo can find no passage, in any deposition submitted to rs, which tends, with any certainty, to show that the deed was even written before the date of the certificate of acknowledgment. It is true Bissell says that “ in his record the lot is set down as convoyed May 26*1837.” When the memorandum in the record was made, or by whom it was written, or whether it be, according to *the [592 belief of the witness, true, he does not make known. But, in reply to an interrogatory propounded to him by defendant, he states that he is “ governed in his recollection as to the time of the signing and acknowledgment by the deed itself, without a distinct, recollection of the precise time of either.”

This testimony, in our opinion, fails to establish the complainant’s claim that the deed passed to him as a valid contract of purchase, in 'May, 1837. It impresses upon the mind but slight, if indeed any conviction, that such was the case. The recollection of the witness does not convince his own mind, very satisfactorily, that the claim is true. But if the writing and signing of the instrument be proved to have taken place when the date purports, as we think they clearly are not by the evidence, there is no attempt to prove its delivery to complainant. It is not shown to have been offered to or held by him at any time before June, 1838. No proof whatever shows it in his possession before then, and as it could take effect Only upon delivery, the omission of that necessary act defeats wholly the character claimed for it by the complainant.

We are still further impressed with the correctness of our'conclusion in this particular by the fact that it is the only one which can, consistently with the interest 'of the grantor, be maintained. If, as it is now contended was the case, Bissell, on the 26th of May, 1837, sold for a proper consideration the premises to complainant,, and conveyed, as he supposed, the title to him, it was a fraud on defendant to induce him to accept, one month from that time, as. security for a just debt, a mortgage upon the same property. An intentional act of that kind, as this must have been if it was perpetrated, would require more ingenious powers of apology than we possess to render it any other than grossly iniquitous. There is no 593] pretense that the lot *was included in the mortgage by mistake. No explanation is offered, nor is any reason given why the complainant’s deed was not acknowledged at its date. Was its omission accidental? Then why not relieve the case by some proof on the subject? Bissell could state, without doubt, whether he forgot, or neglected, or declined, in May, 1837, to acknowledge the deed, and what circumstances led to his failure to do so. Tet he preserves total silence relative to the affair. We feel inclined, therefore, as a duty,- to adopt the most favorable view of the c'ase which is warranted by the facts before us.

The deed to complainant was executed, acknowledged, and delivered, on the 1st of June, 1838. The date, stated in the body of it, was either inserted there by mistake, or it may be that Bissell had caused the deed to be written at the date mentioned, and had beld it as a blank to be used whenever he and complainant should fully concur in their views about it. To us, this most reasonable view of the case tends to relieve Bissell from the imputation of ■dishonesty respecting it, and renders the transaction at least plausible. It was consistent with fairness, and sustained by correct daily practice to convey the fee of the lot after the mortgage and ■subject to it, but not to execute a mortgage upon it after the mortgagor had parted with his fee, and held no interest or right of redemption in it.

If we are correct in our conclusions on this branch of the case,' it seems to follow, as inevitable, that the complainant has failed to show any ground for relief. But granting that the deed was written, signed, and delivered to complainant on the 26th of May, 1837, but not acknowledged till June, 1838, does he stand in any better condition ? As between him and Bissell, he could enforce a specific performance of the contract and a conveyance of the lot. Here, however, is a third party, having, as he insists, *no knowledge [594 of complainant’s equity — no intimation that he holds an imperfectly executed deed for the lot — who, in good faith, receives from Bissell a mortgage lien upon the property which he relies upon as valid, and does not learn that anything is urged by 'any one to the contrary until after his debt secured by it, has matured, and he lias foreclosed the equity of redemption. It is admitted that he had no actual notice of the existence of such equitable title in the estate conveyed to him, but it is claimed that the complainant, when “ obtaining the unacknowledged deed from Bissell, was immediately let into the open, exclusive, and notorious possession of the property, .and that he was in such possession at the time of the execution and recording of defendant’s mortgage, and that such possession is good ■constructive notice to the defendant, and to all the world, of all his rights.”

Wo recognize the doctrine as true, that if the complainant, at the date of the mortgage to defendant, had been in the actual, exclusive, and notorious possession of the property, that the defendant would have been bound, by such possession, to take notice of any and all rights of the complainant in the premises. Before we can determine against him, however, on that point, we must be assured that such constructive notice did, in fact, exist; if it did, he is chargeable with it, but not without.

The complainant owned the hotel, which occupied the front of two lots. Lot No. 311 adjoined them. It was vacant, and hadr during the construction of the hotel, become a sort of lumberyard, on which building and other materials had accumulated. In the spring of 1837, the complainant buys the lot in order to en-f hance the comfort and convenience of his hotel. He removes some of the lumber and rubbish therefrom, but does nothing more. 595] He docs not build upon it; he does not fence it; but his *tenant of the other lots and hotel, hangs out clothes there to dry after being washed. This is the extent of the possession held and exercised by the complainant during the season of 1837. No lease was made to Segur, the tenant of the hotel, for it, no rent paid for it, no acts of ownership by him exercised over it. Complainant was-seen once, as witness thinks, removing some of the materials from it. Should such acts of possession and control be held to give notice to purchasers, of equities and equitable titles not otherwise communicated or made known to them ?

We think the rule has never been, and should never be carried so far. There must be something in the acts which accompany possession of property, in order to give constructive notice, which can be seen and. understood — something that'will induce inquiry — that will naturally raise the question as to who may have rights there. Living on the premises, raising crops on them, the employment of' persons there in the making of improvements, accompanied by frequent acts and expressions of ownership, Would produce such notoriety, undoubtedly, as should put purchasers upon their guard, and induce investigation to acquire knowledge sufficient to enable-them to deal safely. This may not be the only means of conveying notice to strangers, and without intending to define exactly what, in all cases, will constitute constructive notice, we feel no hesitation in saying that the stretching of a clothes-line over a vacant adjoining town-lot, by the tenant of other premises, on which to hang clothes to dry,'or a casual act of removing stone, brick, or lumber therefrom, belonging to an owner who had placed them there while constructing a house on the next lot, would not charge-a bona fide purchaser or mortgagee with notice of equities in the-landlord of such tenant, or the owner who removed such materials. Something more is required. In our opinion, the evidence given 596] *in this case is inadequate to create constructive notice,, and the defendant is not divested of his priority of lien by anything which can be construed into constructive notice to him of an equity to the premises in the complainant.

There is still another objection to granting the prayer of the bill. When the defendant deposited his mortgage for record, the complainant had no pretense of claim to any more than three-fourths of the lot. The other one-fourth part of it belonged to Stickney, and was not transferred to complainant till 1839. Stickney was a tenant in common of an undivided one-fourth part of it, and might, lawfully, by himself, his tenant, or his servants, occupy and improve it. Of this title there existed actual notice on record, and-the defendant was chargeable with it. The use of the lot, or of some part of it, as a clothes-yard, by the occupants of an adjoining lot, was perfectly consistent with the interest which the defSndant was about to acquire. It was notice of the occupation of the tenant in common, and would not legally disclose or lead to any other presumption. Even if complainant did, in person, assist in clearing away the rubbish from it, or if the lot had been plowed, or fenced, during the summer of 1837, such acts were authorized by the title of Stickney, and might well be done by him. The defendant, in such case, was not bound to look beyond the authority of Stickney over the-lot. Any possession, occupancy, or use of it, which is shown to have occurred, might be 2>roporly traced to his right, as tenant in common under a valid legal title, to possess, occupy, or use it, and the defendant was excused from making further examination or inquiry into the title which ap2>eared to be in no otherwise affected.

We express no oj)inion whether the possession of the lot by the tenant was notice of anything more than the title *of the [597 tenant himself. Counsel have, in their briefs, invited our attention to the point, but the other grounds are so clearly decisive of the case, that we deem it unnecessary to pass U2>on it.

The equity of the case as' to one undivided fourth of the lot is with the complainant, and as to the other undivided three-fourths, the equity is with defendant. The case is remanded to the district court to settle any lien which defendant may have for taxes paid on the complainant’s portion of the lot, and for final decree between the parties, upon the principles here stated.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.  