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distributive share in the estates of her sister and brother, and to have, "notwithstanding my coverture, full testamentary power to dispose of the same," and she then proceeds to "will, devise, and bequeath the entire property and estate to which I am now in anywise entitled, and which I may hereafter acquire, of whatever the same may consist, to my beloved husband, Thomas G. Clemson, absolutely and in fee-simple." If, however, she survives him, or he, surviving, dies intestate, then the entire property and estate is devised and bequeathed to her granddaughter, the complainant. The will is dated September 29, 1871, and upon the 13th of December following Mrs. Clemson exercised the power of appointing a new trustee; the instrument reciting that by the will and codicil of her mother, Mrs. Floride Calhoun, she "is entitled to considerable legacies, the legal title of which is, by the will, vested in Edward Noble, Esq., of Abbeville county, in said state, as trustee," and proceeding to appoint Thomas G. Clemson "as trustee under the will for the property therein bequeathed to me, and also for the property bequeathed me in the codicil," in the place of said Noble. Clearly, the "legacies" to which Mrs. Clemson, by the instrument of appointment, stated she was "entitled," and of which she appointed her husband trustee, were the same legacies to which, by the will, she declared herself entitled, and which she thereby devised and bequeathed to him. Having the right to the enjoyment, during life, of the property so held in trust, and the absolute power of disposing of it at her death, she treated it as being as much hers as the alleged distributive share; and, even if she possessed only a power over, and not an interest in, the property, it would be altogether too narrow and technical a construction, under the circumstances, to so limit the language, "I will, devise, and bequeath the entire property and estate to which I am now in anywise entitled, and which I may hereafter acquire, of whatever the same may consist," as to exclude the exercise of the power. It is true that the mention of the distributive share allows it to be said that the instrument might have some effect by means of that interest, but this would not be all the effect the words import; and, if the intention to pass all can be discovered, it would seem that such intention ought to prevail. 2 Chance, Pow. p. 72, § 1597. The intent to dispose of all the estate here is apparent upon the face of the will, and, as the will plainly refers to the property covered by the power, its words cannot be satisfied unless the instrument operates as an execution of the power. Mrs. Clemson also asserted "full testamentary power to dispose of the same," "notwithstanding my [her] coverture," and it is ably argued by counsel that this assertion was made by way of emphasizing the fact that, shortly before, married women in South Carolina had been enabled to dispose of their property by will, and that therefore the assertion tends to sustain the contention that she regarded herself as dealing solely with property absolutely owned by her in her own right. But as such statement would, in that view, have been wholly uncalled for, and this particular property could only be disposed of by Mrs. Clemson by will, while she could alienate her own property in any way she chose, the more reasonable inference seems to

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us to be that she referred to the power of disposition given by her mother's testament, rather than to her legal capacity. In short, we think that, in addition to the reference to the property which was the subject of the power, there is reference to the power itself, and upon the whole case we can entertain no doubt that it was the intention of Mrs. Clemson to dispose of the property in question by her last will and testament, and that this intention was carried out in due execution of the power. The result, therefore, is that the bill must be dismissed, and it is so ordered.

BOND and SIMONTON, JJ., concurred.

BRIGHT v. BUCKMAN et al.

(Oircuit Court, N. D. Florida. April 15, 1889.)

1. MORTGAGES-LIEN-NOTICE OF PRIOR GRANTEES.

At the time of the execution of a mortgage persons were in possession of several of the parcels of the land mortgaged, claiming under contracts of purchase from the mortgagor, and had paid part of the purchase money. Some bad built fences around their lots, and were cultivating them. Others had built houses on theirs, and were living in them. Held, that their possession was sufficiently open and patent to put the mortgagee on inquiry, and to charge him with notice of all that he might have learned by such inquiry. 2. SAME.

Nor is the mortgagee entitled to a lien for the portion of the purchase money unpaid at the time the mortgage was recorded, in the absence of actual notice of the mortgage to the purchasers, as under McClel. Dig. Fla. p. 215, § 6, the recording of a mortgage is only notice to subsequent purchasers and creditors.

8. SAME-MORTGAGEABLE INTEREST.

The mortgagor had purchased the land conveyed by the mortgage, but the vendor retained the deed subject to the payment of the purchase price. At the time of the execution of the mortgage he had neither title nor possession. Afterwards he offered to sell the land to D., as the property of his vendor, giving no notice of the mortgage, but furnishing an abstract showing the title in the vendor. D. purchased the land, and received upon payment of the purchase money the unrecorded deed to the mortgagor and a deed from the latter, both of which were recorded. Held, that the mortgagor had no mortgageable interest in the land, and that D. was not bound by the record of the mortgage.

4 SAME

DESCRIPTION-REFORMATION.

A mortgage described two lots as "lots 13 and 14 of Burbridge's addition. The bill for foreclosure alleged that it was the intention to convey "lots 13 and 14 of block 1, in Burbridge's addition to Jacksonville." It appeared that there were 10 blocks in Burbridge's addition to Jacksonville, each containing lots numbered 13 and 14. While the record showed that the mortgagor had title at the time of the mortgage to lots 13 and 14 of block 1, it also showed that he had in some manner dealt with lots 13 and 14 in block 2, and had at Held, that the description was too inone time given a mortgage on them. definite to afford any notice to a subsequent bona fide purchaser of lots 18 and 14 in block 1, and that the mortgage would not be reformed as against him.

In Equity. Bill for foreclosure of mortgage.

In September, 1883, Elwood H. Buckman executed a mortgage to one Haynie to secure a loan of $1,500, which, in November, 1886, Haynie assigned to complainant. This mortgage covered 400 acres of land in Sumter county, Fla. In March, 1884, said Buckman executed another mortgage to one Hayes, to secure a loan of $6,000, which was assigned by Hayes to complainant in September, 1884. This mortgage covered the same 400 acres of land; certain lots therein described as in Jacksonville, eight acres of land on St. John river near Jacksonville, and two lots in a suburb of Jacksonville, described in the mortgage as "lots 13 and 14, Burbridge's addition," all in Duval county, Fla., save said 400 acres. Said mortgages were duly recorded. After the execution and recording of these mortgages Buckman conveyed to the other defendants different portions of said mortgaged premises. As to the 400 acres there is practically no controversy. A portion of the 400 acres is subject to the lien of both mortgages. Certain of the defendants, who purchased lots in Jacksonville from Buckman, resist the foreclosure of the Hayes mortgage on their lots upon the ground that they were in possession of the several lots claimed by them under contracts to purchase them from Buckman before and at the time of the execution of the mortgage by Buckman to Hayes. The defenses set up by the other defendants are fully noticed in the opinion of the court. Buckman died after this bill was filed, and the suit revived against his personal representative.

Cooper & Cooper, for complainant.

J. W. Archibald, Geo. I. Kain, Jos. E. Lee, and Walker & L'Engle, for defendants.

TOULMIN, J. "The possession of land by a third person is said to put a purchaser upon an inquiry; and he is charged with notice of all that he might have learned by a due and reasonable inquiry. A purchaser who is thus put upon inquiry is bound to inquire of the occupant with respect to every ground, source, and right of his possession. Anything short of this would clearly fail to be "due and reasonable inquiry." 2 Pom. Eq. Jur. § 616, and note at bottom of page 55; 1 Jones, Mortg. § 601; Kerr v. Day, 14 Pa. St. 112; 2 Pom. Eq. Jur. § 607, and note at bottom of page 45; Witter v. Dudley, 42 Ala. 616. Actual possession of land is constructive notice of ownership, or of an interest, and such notice is sufficient to put creditors and purchasers on inquiry. McRae v. McMinn, 17 Fla. 886; Hyer's Ex'rs v. Caro's Ex'x, 18 Fla. 694. "The possession must be actual. It must be marked by acts of dominion, such as the erection of houses, making valuable improvements, claiming ownership, or by some other act evidencing that the possession is under claim of right. Actual possession is an open, patent fact, and it is notice to all men contracting in reference to the property thus possessed, and is equivalent to actual notice of title, legal or equitable, or of the claim under which such possession is held." Bernstein v. Humes, 71 Ala. 260; Doolittle v. Cook, 75 Ill. 354. The testimony shows that defendants, William Young, James Calhoun, Lawrence Ely, James W.

Caswell, Anthony Grayson, and Gus Jackson, had actual possession of their respective lots, claiming title to the same prior to, and at the time of the execution of, the mortgage on said lots, which it is here sought to foreclose. Ely had received a deed for his lot, and had built a fence around it. Caswell had had his lot staked off for him by his vendor, E. H. Buckman, (who is the mortgagor,) and had inclosed it with a fence. All the other said defendants had built houses on their lots, and were living in them, except one, and he had his lot inclosed with a fence, and was cultivating it in growing vegetables thereon. Hayes, the mortgagee, says in his deposition that "he did not speak to the men in possession of the lots in regard to them." He further says that he "really considered other property included in his mortgage good enough for his loan, without anything else, and paid no particular attention to the lots in question. Nothing more than just riding around with Buckman, but made inquiries as to the other property, viz., 4 houses and lots near the new Episcopal church. Went more on these four houses than anything. These were sure and tangible." And J. G. Long, the attorney and representative of the complainant, Bright, in taking the assignment of the Hayes mortgage, says he "visited and looked at the property, and found each piece of it occupied," and he "did not ask the tenants anything about the property, but took Buckman's statement altogether." The evidence satisfies me that the possession of these defendants was an open, patent fact, and that Hayes and his assignee, the complainant, had notice thereof, and that they did not make "due and reasonable inquiry." They are charged with notice of all that they might have learned by "due and reasonable inquiry." Subsequent to the execution of the mortgage these defendants, except Lawrence Ely, received from Buckman deeds to their respective lots. Irrespective of the testimony of the defendants as to their transactions with said Buckman, the evidence is sufficient to show that they were in possession of the lots under agreements to purchase, and had paid a part of the purchase money at the time the mortgage was executed. They continued to make payments to Buckman until the purchase money was all paid up and deeds were executed by Buckman to them. But it is contended by complainant that he is, at all events, entitled to a lien on said lots to the extent of the purchase money unpaid at the time of the recording of the mortgage; that the payments made to Buckman subsequent to the mortgage should have been made to him or to his assignor, Hayes. This would be true if the defendants had notice of the execution of the mortgage at the time of making such payments. But the proof shows they had no such notice. They had no actual notice, and without this they might lawfully complete their payments to Buckman without becoming liable to the mortgagee. It is true, the mortgage was recorded before many of the payments were made. But "the recording of a mortgage affords no notice whatever to a prior purchaser of the land, who is in possession under a bond for a deed, so that the mortgagee had constructive notice of his rights." 1 Jones, Mortg. § 562; Doolittle v. Cook, 75 Ill. 354; Trustees, etc., v. Wheeler, 61 N. Y. 88. Under the statutes of Florida

the recording of the mortgage is notice to subsequent purchasers and creditors only. McClel. Dig. p. 215, § 6.

As to the lot claimed by the defendant Andrew Gibson, it appears from the evidence that he was not in possession of the lot at or before the execution of the mortgage, and that he received his deed long subsequent thereto. The mortgage described two lots of land as "lots 13 and 14 of Burbridge's addition." The bill alleges that the intention was to mortgage "lots 13 and 14 of Block 1, in Burbridge's addition to Jacksonville." The answer of defendant Cook, who is now the owner of said last-described lots, denies this allegation, and that the mortgage covered these lots. The proof shows that there are 10 blocks in Burbridge's addition to Jacksonville, each containing lots numbered 13 and 14, and that there are 6 blocks in Burbridge's addition to La Villa, each containing lots numbered 13 and 14. The evidence tends to show that, so far as is disclosed by the public records, E. H. Buckman had, at the time he executed the mortgage, title to no other lots numbered 13 and 14 except lots 13 and 14, in block 1, of Burbridge's addition to Jacksonville, but it further tends to show that he had in some manner dealt with lots 13 and 14, in block 2, of Burbridge's addition to Jacksonville, and had at one time given a mortgage to other parties on the last-named lots. A bill for the foreclosure of a mortgage should so describe the mortgaged property that if a sale is ordered the officer of the court may with certainty and safety execute the decree, and that the purchasers may be informed of the particular premises which are exposed to sale, and which they can acquire. Hurt v. Freeman, 63 Ala. 335. The mortgage is not certain in its description of the lots in question, and, construing it in the light of the testimony in the record on the subject, I do not think it sufficiently identifies the property. The bill seeks a foreclosure as to lots 13 and 14 of block 1 in Burbridge's addition to Jacksonville, treating these lots as the lots intended to be mortgaged by Buckman by his mortgage. of "lots 13 and 14 of Burbridge's addition," and the bill alleges that these were the only lots owned by Buckman when he executed the mortgage answering the description contained in the mortgage, and that this must have been known to Cook when be bought the property. And the contention of complainant is that there was enough in the record to put Cook upon notice and inquiry, and to charge him with notice of what lots were intended by the description in the mortgage. The bill prays for a decree of foreclosure against these lots as they are described in the bill, and complainant suggests that if a reformation of the mortgage is necessary, the court will grant such reformation in the decree of foreclosure, the prayer for general relief being sufficient for that purpose. As my opinion is that the mortgage is not sufficiently certain to identify this property, a reformation is needed to carry out the specific relief prayed, which is foreclosure and sale. The mortgagee may ask for a reformation of the mortgage in a bill to foreclose it. 1 Jones, Mortg. §§ 98, 99; 2 Jones, Mortg. § 1464; Alexander v. Rea, 50 Ala. 450. A mistake in the description of the land may be corrected as between the parties to the mortgage, and courts of equity can grant relief as against

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