Wilson v. Gruthrie , 2 Grant 111 ( 1853 )

The opinion’of the court was delivered December, 11,1854, by

Knox, J.

— Had the trustees of the estate of William Ring-ham, declared the contract with Guthrie at an end, by selling the land to another, after the expiration of six months from the date of the contract, and before the improvement commenced, their right to do so would have been unquestionable. Their delay for so long a time, after cultivation and residence, was equivalent to an abandonment of the right of forfeiture.

The possession of Reighley, under Guthrie, was notice to Wilson of Guthrie’s title, besides which, it appears that he had actual notice before his purchase, that Guthrie claimed the land. This was sufficient to put him upon inquiry, as to the nature and extent of Guthrie’s claim.

There is nothing in the third assignment of error. Where one claims title to land, in the possession of two or more, he may bring a joint action against all. If their possession is several, they may sever in defence, and disclaim as to the residue.

The fourth error assigned is not sustained. Guthrie did not lose his equitable interest in the delay of making payment. He was in possession, and payment might have been enforced against him, by action of ejectment or covenant. When he did offer to pay, and tendered the money, in A. D. 1850, he was told by the agent that he could have deeds for the land, but not then, as it was inconvenient to prepare them.

There was no error committed by the court, in their answers to defendants.

Judgment affirmed.