Dec. 461. But the cotenant continuing in sole possession after the ter mination of the lease from his companion is not liable for rents, unless he does some act to prevent the latter from joining in the occupation: Mumford v. Brown, i Wend. 52; 19 Am. Dec. 461. But where one cbtains possession under a lease from the other, he must, at the termina tion of the lease, surrender the possession which he acquired by it. If an action for an unlawful detainer is brought against him, he cannot successfully resist it by showing that the title was at the leasing, and still is, vested in himself and his lessor as tenants in common: Hershey v. Clark, 27 Ark. 528.

Trespass to Try Titles, like an action of ejectment, cannot be sustained by one tenant in common, or other cotenant, against one of his fellow tenants, in the absence of an actual ouster: Taylor v. Stockdale, 3 McCord, 302; Harvin v. Dodge, Dudl. 23; St. Louis etc. Co. v. Prather, 75 Tex. 53.

CHAPMAN V. CHAPMAN.

[91 VIRGINIA, 397.]

VENDOR AND VENDEE.—THE POSSESSION OF A VENDER who has paid the entire purchase price, and is entitled to a conveyance, cannot be regarded as adverse to his vendor. Before such possession can become adverse, the vendee must have dissevered the privity of title between him and his vendor by the assertion of an adverse right, and Openingly and continuously disclaiming the title of the vendor, and have brought such disclaimer home to the latter or his successor in interest.

PURCHASERS FOR VALUE, WHO ARE.-Trustees to whom property has been conveyed for the benefit of creditors are purchasers for value.

NOTICE. THE POSSESSION OF REAL PROPERTY by one who has purchased and paid for it, but has not received a conveyance of the legal title, is notice to the world of his right and claim. It is the duty of an intending purchaser to inquire into the fact of the possession of the property, and he will be affected with notice of whatever right or interest the party in possession may have which such inquiry would have disclosed.

ABANDONMENT OF LAND on the part of one who has pur chased and paid for it, but has not received a conveyance of the title, is not inferable from his absence therefrom for a number of years.

NOTICE TO ONE OF TWO TRUSTEES, of an equitable title held by a third person to lands conveyed to them for the benefit of creditors, is notice to both.

CHANCERY PRACTICE. THE ANSWER OF ONE OF TWO TRUSTEES who are charged with having notice of an outstanding equitable title when they received a conveyance of the property, when he does not claim to have any personal knowledge respecting the notice to his cotrustee, merely presents an issue throwing the burden of proof upon the complainant, but does not require him to overcome the denial of the answer by the testimony of two witnesses, or by one witness accompanied by strong, corroborating circumstances.

J. Catlett Gibson, for the appellant.

James Hay and T. C. Gordon, for the appellees.

398 RIELY, J. This is a controversy between the owner of the equitable title and the holders of the legal title to certain lands. Both claim under the same vendor.

The appellant, Bernard T. Chapman, claims the lands by 399 right of purchase, the payment of all the purchase money, and the delivery to him of the possession in pursuance of his purchase, although the title to the lands has never been conveyed to him.

Long after he had acquired the said lands, his father, Thomas W. Chapman, from whom he claims and in whom was the legal title, conveyed them, along with other lands belonging to him, to James Hay and Thomas A. Chapman, in trust to secure his creditors; and the trustees claim the lands in possession of the appellant as bona fide purchasers for value, without notice of any right in him to them.

The appellant bases his right to hold the lands on several grounds.

The first ground on which he relies is that of adverse possession under claim of title for more than fifteen years, the period of the statutory bar. This pretension, under the circumstances of this case, cannot be sustained. He purchased one part of the lands of his father in the year 1870, and acquired the other part in the year 1874, and took possession of each parcel at the time of the purchase, or very soon thereafter. He entered into possession of both parcels under his contracts of purchase. By such purchase, and the payment of the entire purchase money, he acquired the full equitable title, but such equitable title was derived from his vendor, who retained the legal title for future conveyance. In such case, the vendee cannot be said to hold adversely to his vendor: Clarke v. McClure, 10 Gratt. 305; Creigh v. Henson, 10 Gratt. 231; Nowlin v. Reynolds, 25 Gratt. 137. He holds in subordination to, and under the protection of, the title of his vendor, and no length of time is sufficient for such possession to ripen silently into a title by adverse possession. Such possession is in privity with, and in subserviency to, the legal title of his vendor, and he is not allowed to impeach or assail it. As was Baid by President Tucker in Williams v. 400 Snidow, 4 Leigh, 14, 20: "Adverse possession is not the mere holding over against the will of the party from whom you obtain the possession. It is the holding by claim of title, adverse to another's title, that constitutes adverse possession."

Before adverse possession can arise between a vendor and his

vendee, or between the grantee of the vendor and such vendee, where the vendor has retained the title, and the statute of limitations commences to run, the vendee must have dissevered the privity of title between them by the assertion of an adverse right, and openly and continuously disclaimed the title of his vendor, and such disclaimer be clearly brought home to the knowledge of the vendor or his grantee: Creekmur v. Creekmur, 75 Va. 430, 436; Whitlock v. Johnson, 87 Va. 323, 327. There has been no disavowal by the appellant of the title of his vendor, and the claim of adverse possession cannot avail him.

The next and main ground upon which the appellant relies is, that the trustees are not bona fide purchasers for value without notice. They are unquestionably, under many decisions of this court, purchasers for value: Evans v. Greenhow, 15 Gratt. 153; Wickham v. Martin, 13 Gratt. 427; Exchange Bank v. Knox, 19 Gratt. 739; Shurtz v. Johnson, 28 Gratt. 657, 667; Cammack v. Soran, 30 Gratt. 292; Williams v. Lord, 75 Va. 404; Witz v. Osborn, 83 Va. 230.

Are they bona fide purchasers without notice? The open and peaceable possession of land under a claim of right is notice to all the world of the right or claim of the person in possession; and, where one buys land in the possession of another than his vendor or grantor, he is bound to take notice of such possession and all that it imports. This is, we think, the rule to be deduced from the authorities. It is the duty of a purchaser to inquire into the fact of the possession, and 401 he will be affected with knowledge of whatever right or interest the party in possession may have in the land which such inquiry would have disclosed. The rule has its foundation in the good faith of the purchaser. If he makes the inquiry, he would acquire knowledge of whatever right or claim, if any, the person in possession may have; and if, upon inquiry, he receives information of any right or interest of such person in the land, it would be mala fides to attempt to deprive him of it. So, if he fail to make inquiry, he has not discharged the duty which good faith imposed on him; and whatever knowledge he might have acquired by means of an inquiry duly and reasonably prosecuted the law imputes to him. The purchaser is, therefore, charged with notice of the possession, and of whatever right, interest, or claim the person in possession may have, when the party from whom he buys is not the person in possession of the land.

Such notice is the same in effect as the notice which is im

puted by the recording or registry acts. One may purchase land to which another than his vendor has a deed of conveyance, or upon which he has a mortgage duly recorded, according to the statute for the recordation of deeds, but of which the purchaser knows nothing, yet he will be as conclusively charged with notice of such conveyance or mortgage as if he had examined the record and inspected the deed. He is required, for his own protection, to examine the records, and the law imputes to him all that such examination would have disclosed. Actual, notorious, and exclusive possession of land takes the place of the recordation of the instrument of title; and a subsequent purchaser of land in possession of one who is not his vendor is affected with notice of whatever claim or interest the person in possession has, and which an inquiry into the possession would have revealed. He is not permitted to dispute such right or interest, unless he has made the inquiry which equity and good conscience impose on him, and such 402 inquiry, duly prosecuted, has failed to reveal any right or interest in the tenant in possession. This is the established doctrine both in England and in this country.

In the case of Holmes v. Powell, 8 De Gex, M. & G. 579, that eminent jurist, Lord Justice Knight Bruce, said: "I apprehend that by the law of England, when a man is of right and de facto in the possession of a corporeal hereditament, he is entitled to impute knowledge of that possession to all who deal for any interest in the property, conflicting or inconsistent with the title or alleged title under which he is in possession, or which he has a right to connect with his possession of the property. It is equally a part of the law of the country, as I understand it, that a man who knows, or cannot be heard to deny that he knows, another to be in possession of a certain property, cannot, for any civil purpose, as against him at least, be heard to deny having thereby notice of the title or alleged title under which, or in respect of which, the former is or claims to be in that possession": Holmes v. Powell, 8 De Gex, M. & G. 579.

The same general rule, based upon the same motives and reasons, is said by Pomeroy, in his work on Equity Jurisprudence, to be established in the United States by a very great number of decisions: See 2 Pomeroy's Equity Jurisprudence, sec. 614, and the cases cited in the note thereto in support of the text. The rule was recognized by this court in Rorer Iron Co. v. Trout, 83 Va. 397, 419; 5 Am. St. Rep. 285.

The doctrine has also recently been upheld by the court of

AM. ST. REP., VOL. L.-54

appeals of New York, in its fullest extent, in the case of Phelan v. Brady, 119 N. Y. 587. Phelan lent to one John Murphy the sum of two thousand dollars, and took from him a mortgage on a tenement or block, containing forty-three rooms or apartments, then occupied by twenty different occupants or families, as tenants from month to month, except that three of the apartments were occupied by Margaret Brady and her husband, who kept a liquor store in a part of the building, 403 and occupied two living rooms in the rear of the storc. The wife claimed to be owner of the premises, and collected rents from the other tenants. Murphy had a perfect record title to the premises at the time Phelan lent to him the money and Murphy executed the mortgage to secure it; but he had never, in fact, any interest in the property, had never paid anything for it, was not in possession, and, before the execution of the mortgage, had conveyed it by deed to Mrs. Brady, who was the real owner. Her deed, however, was not recorded until several weeks after the recordation of the mortgage.

Phelan had no notice, at the time he made the loan to Murphy and took the mortgage, of any title to the premises in Mrs. Brady, or of any claim on her part to be the owner; but she was in the actual possession of the premises under a perfectly valid but unrecorded deed. In a contest between her and the mortgagee, Phelan, the court said: "Her title must, therefore, prevail as against the plaintiff. It matters not, so far as Mrs. Brady is concerned, that the plaintiff in good faith advanced his money upon an apparently perfect record title of the defendant, John E. Murphy. Nor is it of any consequence, so far as this question is concerned, whether the plaintiff was, in fact, ignorant of any right or claim of Mrs. Brady to the premises. It is enough that she was in possession under her deed and the contract of purchase, as that fact operated in law as notice to the plaintiff of all her rights. It may be true, as has been argued by the plaintiff's counsel, that when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish."