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he was president of defendant. As, in our opinion, there was sufficient notice of complainant's rights by reason of the actual occupation of the premises by himself and his predecessons in possession, it is useless to determine the effect upon the corporation of the knowledge and notice by J. C. Petterson, its president, of such rights and equities. Whether the corporation was or was not bound by such notice to Petterson the result in this case would be the same.
451 It is claimed by the complainant that the actual possession and occupancy of the premises by his predecessors is, of itself, sufficient to charge the defendant with notice of his equitable title. The Pensacola, Gulf, Land and Development Company admits in its answer a knowledge that the occupation and use of the hospital, and grounds inclosed about the same, was held by the Hargises, but was informed and understood that such holding was by consent of Emma I. Petterson and subject to her title. It denies all knowledge or notice of the possession or occupation of the remaining portion of the tract involved in the litigation. The case of McRae v. McMinn, 17 Fla. 876, was in some of its features like the present. There the vendee knew that another was in possession of the land, but believed she was in possession as a tenant, holding under another. This knowledge, coupled with the fact that the instrument which purported to pass title to his grantor, but which was ineffectual to pass such title, was of record, and contained a description of the topography of the land, was held to be sufficient to lead the vendee to inquiry by which he might have learned the nature of the title and claim of the party in possession, and that a court of equity would deem him connusant of it.
In this case, the rule was laid down that a subsequent purchaser, although without actual notice, will be considered a purchaser of the seller's title subject to the equities of the tenant. It may be conceded that the facts of the case hardly required so broad an enunciation of the rule, as there was some actual notice of the possession. Therefore the court said: “The authorities go beyond the case at bar. We think the general rule is, that where a person, other than the grantor, is 462 in possession, it is the purchaser's duty to inquire into the title; and the presumption of law is, that upon such inquiry he ascertains the true state of the title.” The broad general rule has often been proclaimed by the courts that, “the actual possession of land is notice to all the world of whatever rights the occupant really has in the premises, and a vendor cannot convey to any other person without
AXST. RBP., VOL LIII- 17
such person being affected with such notice": Finch v. Beal, 68 Ga. 594; Sewell v. Holland, 61 Ga. 608. In such cases open, visible, actual possession is of itself notice of the rights of those in possession. Actual knowledge of such possession on the part of those sought to be charged with such notice is not necessary. Notice in such cases is a legal deduction from the fact of possession: Allen v. Cadwell, 55 Mich. 8; Woodward v. Clark, 15 Mich. 104; Hamilton v. Fowlkes, 16 Ark. 340, and many authorities cited in text; Buck v. Holloway, 2 J. J. Marsh, 163; School District v. Taylor, 19 Kan. 287; Lipp v. Hunt, 25 Neb. 91; Moss v. Atkinson, 44 Cal. 3; McConnel v. Reed, 4 Scam. 117; 38 Am. Dec. 124; Killey v. Wilson, 33 Cal. 690; Lipp v. South Omaha Land Syndicate, 24 Neb. 692; Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Dixon v. Doe ex dem. Lacoste, 1 Smedes & M. 70; Strickland v. Kirk, 51 Miss. 795; Perkins v. Swank, 43 Miss. 349; Doolittle v. Cook, 75 Ill. 354; Metropolitan Bank v. Godfrey, 23 Ill. 579; Noyes v. Hall, 97 U. S. 34.
Under our recording acts, possession has been held to be such constructive notice of ownership as to dispense with the necessity of recording the deed: Massey v. Hubbard, 18 Fla. 688.
453 Some objection of appellee is made that the possession of those through whom complainant derived his equitable title was not such open, visible possession, such as is necessary to give constructive notice of the title of the tenant. There can be no question of this kind as to that portion of the property covered by the hospital, garden, and appurtenances. As to these, it is admitted that the possession was notoriously open and visible, and came within the actual knowledge of the defendant. As to other portions of the tract, it seems that the larger trees suitable for timber had been removed. Those remaining were small, and appear to have been useful only for firewood. Such use was made of them, and the property was protected from trespassers. The limit of the possession claimed was plainly marked, and all the use seems to have been made of the land of which it was capable. Possession, in order to be constructive notice of a claim of title, must be open, visible, and exclusive, and is shown by any use of the land that indicates an intention to appropriate it for the benefit of the possessor. Such use may be any to which the land is adapted, and is calculated to apprise the world that the property is occupied: Truesdale v. Ford, 37 Ill. 210; Wickes v. Lake, 25 Wis. 71. The character of possession proven in this case, if adverse and continued for the statutory period, would give a prescriptive title to the premises under our statute of limi
tations, as it was based upon a written instrument as being a conveyance of the premises in question: Rev. Stat., sec. 1290, par. 2. We think the actual knowledge of the defendant, the Pensacola, Gulf, Land and Development Company, as to a possession of a portion of the premises was sufficient notice to it of that portion, and that the actual, 454 open, visible possession of the remaining portion was sufficient notice as to the remainder, and that the said defendant was not a purchaser without notice of any portion of said land.
The defendant corporation claims that the relief prayed for by the complainant should have been denied because the property had advanced in value. No defense of this kind was made by the answer. The only reference to increase of value that appears in the record is in the testimony of the defendant J. C. Petterson, which was taken after all the complainant's witnesses had testified. The witness was asked to state "the value of the land in this suit when he first became acquainted with it, and its present value (at the time of asking the question), and if the same had increased in value. In reply, the witness stated that when he first became acquainted with the property it was worth one dollar and fifty cents per acre, but at the time of testifying that it was worth about five thousand dollars. This question was objectionable for many reasons, and, if objection had been made in the court below, it and the answer to it should have been excluded from consideration. In the first place, the time inquired about was too remote. The witness had stated that he had been acquainted with the property fourteen or fifteen years. The original contract of purchase was made about six years and a half before the time of giving the testimony. Therefore, he was asked to state the value of the property at a period seven or eight years anterior to the purchase by Bonifay from Dowd, and its value at the time of testifying, which was about eight months after the suit was brought. If the testimony as to increase of value was admissible at all, it should have been limited to some time at or near the time of the 455 Bonifay contract and the bringing of suit. For aught that appears in the record, this remarkable increase of value may have all occurred between the time of the witness' first acquaintance with the property and the contract of purchase by Bonifay, or it might have occurred between the bringing of the suit and the time of taking the testimony. But the greatest-the vital-objection to this testimony is, that it is not relevant to any issue in the case, no defense being made upon an increase in value of the property. It is an established rule of chancery practice, and of pleading and practice generally, that the allegata and probata must correspond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone is insufficient: Perdue v. Brooks, 95 Ala. 611. All evidence offered in a case should correspond with the allegations and be confined to the issues: 1 Greenleaf on Evidence, sec. 51. “The requirement
... that the cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading": 2 Rice on Evidence, sec. 292, citing Pomeroy's Remedies and Remedial Rights, sec. 554. A litigant has a right to rely upon his adversary's pleading as indicating the case he is to meet. Otherwise, pleadings would serve no useful purpose except to entrap and mislead the adversary: Southwick v. First Nat. Bank, 61 How. Pr. 164; Romeyn v. Sickles, 108 N. Y. 650. Without committing ourselves upon the point, under the circumstances of this tase, whether the question of appreciation in value of the property could be urged as a defense to the relief sought, we are of the opinion that we cannot consider any such 456 defense in the state of the pleadings as shown by the record.
It is also contended by appellee, the Pensacola, Gulf, Land and Development Company, that the decree for specific performance should not pass against it, because it holds its title by a grant from a married woman, and the equity sought to be enforced had its origin and partly accrued before the legal title vested in such married woman. The cases of Lewis v. Yale, 4 Fla. 418, and Goss v. Furman, 21 Fla. 406, are cited to support the contention. It was decided in those cases, especially the last named, that a decree for specific performance could not be rendered against a married woman upon her executory contract for the sale of lands. This decision was but an application of the general principle that a married woman is disabled, by reason of her coverture, to enter into any contract that will bind her, either in law or in equity, so as to authorize a personal judgment against her. In this case, the contract sought to be enforced was not made by a married woman. The only married woman defendant had parted with her title before suit was brought. She was a nominal party to the proceedings, and no relief is prayed against her. Her only connection with the case is, that the title to the property about which the suit was brought was once vested in her, and is held by her grantee. We do not think a vendee of real estate, who purchases with notice of the equities of an oc
cupying tenant, can defeat specific performance of the contract of a former grantor because of the intervention of the title of & married woman between him and such grantor. Such a rule does not seem reasonable to us upon principle, and no 457 precedent in point has been shown us or discovered by us.
The decree of the circuit court is reversed, with directions that a decree be entered granting the relief prayed for in the bill of complaint, upon the payment by the complainant to the defendant, the Pensacola, Gulf, Land and Development Company, of the amount of purchase money due upon the contract of purchase of E. C. Bonifay from C. Dowd and George Stallsworth, with interest from October 18, 1884, until January 24, 1889, and all the costs which accrued in this cause in the circuit court up to said last-named date. It is ordered that all other costs in the cause not directed to be paid by the complainant be paid by the defendant; and that appellees pay the cost of this appeal. Wherever the word "complainant” is used in this opinion it means the appellant, and the word “defendant,” without naming him, is used it means the appellee, the Pensacola. Gulf, Land and Development Company.
CONTRACTS-TIME AS ESSENCE OF.-In equity, time is not regarded as of the essence of a contract unless expressly stated to be so: Chabot v. Winter Park Co., 34 Fla. 258; 43 Am. St. Rep. 192, and note.
SPECIFIC PERFORMANCÉ-LACHES.-While equity does not regard time as of the essence of a contract for the sale of lands unless expressly made so by the contract, yet it requires that one who seeks specific performance of such contract shall not be guilty of unreasonable delay and shall scek his redress with reasonable proinptness: Chabot v. Winter Park Co., 34 Fla. 258; 43 Am. St. Rep. 192 and note.
SPECIFIC PERFORMANCE - DEFENSES — INCREASE IN VALUE.-The fact that land contracted to be sold for a fair price has since become more valuable, is not such a circumstance as would prevent a decree for specific performance of the contract: Young v. Wright, 4 Wis. 144; 65 Am. Dec. 303, and note.
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 potice to the world of his right and claim: Chapman y. Chapman, 91 Va. 397; 50 Am. St. Rep. 846, and pote. Possession of realty gives constructive notice of the title under which the occupant claims: Note to Wilson v. Phenix Powder etc. Co., 52 dm. Ste Rep. 895. The general rule is, that a purchaser of real estate is chargeable with notice of the equities of one in possession thereof: May v. Sturdivant, 75 Iowa, 116; 9 Am. St. Rep. 463, and note.
VENDOR AND PURCHASER – DUTY OF PURCHASER TO MAKE INQUIRY WHEN LAND IN POSSESSION OF ANOTHER. 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 sach Inquiry would have disclosed: Chapman v. Chapman, 91 Va