Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-12

in fee simple to defendant Farrell, which was
duly recorded on the Oath day of the same
month. The deed was executed in pursuance
OF an agreement between the plaintiffs and
Farrell to the effect that the land should be
conveyed to the latter to secure him for iabili-
ties incurred by him by becoming surety on a
bail bond for son of the plaintiffs who was
in custody upon criminal charge.
On January 9th, 1874, Farrell applied to de-
PENDANT Wheaton for loan Offering the land
aforesaid as security and representing that he
was the owner of it.
Thereupon Wheaton lent him (FarrelD 81, 900
upon his note and a mortgage
upon the land executed by him as
security. Wheaton relied upon Farrell's title
as it appeared upon his deed and upon Farrell,s
said representation.
At the time of loaning the money and tax
ing the mortgage, Wheaton had actual notice
that said real estate was in the possession of
said plaintiffs, and was occupied by them"
It does not appear that defendant Farrell's
liability on the bail bond has terminated.
As conclusions of law it is found:
LIST. That the conveyance from plaintiffs to
Farrell, is, in fact, a mortgage.
I'd. That the possession of the real estate
by plaintiffs at the time the mortgage from
Wheaton Of plaintiffs rights, as respected the
| same, and
Sd. That tnot appearing that the liability Of
Farrell upon the bond is terminated, plaintiffs
are not entitled to Judgment in this action.
| Judgment was rendered for defendants for
costs and disbursements.
The defendant Wheaton appeals to this court
as to the correctness of the first conclusion of
law upon the facts found there is no contro-
versy.
The principal attack of the appellant in this
court is made upon the second conclusion of
law: This conclusion is. however, supported
| by March vs. Morrison, Mimi. 1922 and Croft
VS.. Ramsey, 10 Mimi. "A.
| In both of these cases it was in effect held
that actual possession of land by a person other
than the vendor thereof, is notice sufficient t.
put purchaser whether in fee simple or in
mortgage on inquiry, as to the particulars OF
| the title of the occupant.
| In the case at bar there was not only an &C.
tual possession and occupancy by the plaintiffs
| at the time when the mortgage to Wheaton was
executed, but Wheaton had at that time actual
notice of such possession and occupancy. Moth.
ing appears in the case to do away with the effect
| of this possession, occupancy, and actualnotice
as notice of plaintiff title. This effect is not
done away with by the fact that the plaintiff
| had made the conveyance in fee simple to Farrell
because their possession and occupancy are
p,fnla facie evidence of title in them, and
therefore inconsistent with fee simple title
in Farrell, according to the terms of his deed
See Palmer VS.. Bates, % MINI. 532.
Neither are the plaintiffs, as appellant con
tends, estopped by their negligence in execut
ing deed, absolute in form, to Farrell, from
claiming that it is mortgage for their pos
session and occupancy, were notice to put thu
appellant on inquiry as to their rights at tn
time when he took his mortgage, so that h
cannot in law claim to have been mis-
led. The case of Pence VS.
Arbuckle, % Mimi. AIT, citeu b,
appellant is not at all in point. Upon thes
grounds the second-conclusion of law found b,
the court below is correct.
The plaintiffs point, that the third conclu
sion of law should be modified SO as to give tn
affirmative relief prayed for in the complaint
at least against defendant Wheaton, cannot b.
considered, as the plaintiffs have taken no APP
peal. Edgerton vs.. Jones, 10 Mimi 427.
Judgment affirmed.
BERRY j.