had been entered in the books for the money claimed to have been paid, but that Shaw had told him that the note had been settled and paid. The plaintiff on his own behalf testified that he found the coupon in the bank safe in January, 1880, and that in May of that year he asked the defendant to make payment thereof, when, he says, the defendant admitted it had not been paid and asked for further time in which to make payment, but that at a subsequent time, when he again called his attention to it, the defendant stated that it had been paid to Shaw while he was a member of the firm of F. M. Shaw & Co. He was then asked whether, in the settlement of the partnership business with Shaw, he had relied upon the statements of the defendant that the note had not been paid. This was objected to by the defendant and excluded by the court. Of this ruling the plaintiff complains.

This testimony might, without impropriety, have been admitted, but we do not regard it to have been very material to the issue in the case. The sole question to be tried was whether the defendant had paid the note to F. M. Shaw & Co. at or about the time it came due, which was October 1, 1879. It was conceded that the partnership between Bigelow and Shaw existed then, and for some time thereafter, and that Shaw had authority to receive payment at the time it was claimed to have been made to him. The testimony respecting the admissions and representations claimed to have been made by the defendant in May, 1880, and at later times, went to the jury without objection. The only purpose of the testimony excluded was to create an estoppel against the defendant by reason of these admissions. If the note was paid to Shaw by the defendant as claimed, neither Shaw nor the plaintiff would have any right in law to rely on a subsequent statement by the defendant that it was still due and owing. Shaw certainly could not have been misled by such a statement, because he would have known that it was untrue, and the knowledge which he possessed in respect to such payment was alike chargeable to his partner, the plaintiff. Notice or knowledge given to one partner, in respect to a matter within the scope of their partnership business, is notice to all the members of the firm; and therefore, if the defendant actually paid the note, as testified to by Shaw and himself, and if it were granted that he had made admissions of non-payment, as plaintiff states, still it would not give rise to an estoppel, nor preclude the defendant from thereafter denying the truth of such admissions. On the other hand, if the note was not paid, as plaintiff claims, the plaintiff would then be entitled to recover, regardless of whether or not he may have relied upon the admissions of the defendant. On that theory of the case the reliance which he may have placed upon defendant's statements, or the notions he may have formed by reason of them, were immaterial and incompetent.

At the close of the testimony the plaintiff asked the court to instruct the jury as follows:

"If the jury believe from the evidence that Mr. Henniger, the defendant, represented and stated to the plaintiff that the coupon note sued on was not paid, and that Mr. Bigelow, the plaintiff, settled with F. M. Shaw, his former partner, relying upon said statement and representations as being true, then the said defendant, Samuel Henniger, is estopped from denying that said statements are true."

This was refused, and an exception taken. Instructions should be based upon the evidence. As there was no testimony before the jury that the plaintiff had relied upon the truth of the representations made by the defendant respecting the non-payment of the note, there was no error in refusing to give the instruction. It may be remarked that it was also objectionable because of indefiniteness, in that it failed to state the time when the representations were made. A statement by the defendant, such as is referred to in the instruction, made prior to the maturity of the note and before the defendant claimed to have paid it, could not operate as an estoppel, and yet it comes within the terms of the instruction as framed and asked; so that in any view that might be taken of the case, the instruction was properly refused.

Complaint is also made that the court refused to require the jury to give positive answers to two questions that had been submitted, and which the jury stated they were unable to answer. But, in the view we have taken of the case, the questions related to facts that were immaterial, and, even though there was testimony upon which the jury could have given positive answers, still, the refusal of the court to compel answers to such questions cannot be held erroneous. We find no error in the record, and therefore the judgment of the court below must be affirmed.

(All the justices concurring.)

(33 Kan. 410)

DEETJEN v. RICHTER.

Filed April 10, 1885.

VENDOR AND VENDEE-POSSESSION BY TENANT-NOTICE.

Where the owner of real estate, holding title under an unrecorded deed, is in the possession thereof, by his tenant, at the time of the execution of a deed to a subsequent purchaser, under legal proceedings, divesting his vendor of his supposed title, and such subsequent purchaser has actual notice at the date of the sale, from the tenant cultivating the land, that he leases the same, giving the name of his landlord, held, that this is sufficient notice to such subsequent purchaser to put him upon inquiry as to the title, and therefore he is not entitled to protection as a bona fide purchaser without notice.

Error from Clay county.

Action by Richter against Deetjen, in the nature of ejectment, commenced December 5, 1882, to recover possession of lots 2, 6, and 9 of section 5, in township 7 S., of range 2, in Clay county. Trial had at the May term, 1883, before the court, a jury being waived. The court found the following conclusions of fact:

"(1) That a patent was issued for lots 2, 6, and 9, in section 5, township 7, in range 2 east of the sixth principal meridian, in Clay county, Kansas, to the plaintiff, Rudolph Richter, on the fifteenth day of August, A. D. 1876.

"(2) That on the third day of May, A. D. 1879, the plaintiff made a warranty deed to said premises to his daughter, Lydia Richter, which was a mere voluntary conveyance, for which there was no consideration. This deed was recorded on the same day, viz., May 3, 1879.

"(3) That on the first day of April, A. D. 1881, a mortgage on said premises, for the sum of $45, and due April 1, A. D. 1886, was executed by Lydia Richter to Underwood, Clark & Co.; and on the same date another mortgage for the sum of $300 was executed by said Lydia Richter to the Scottish American Mortgage Co., due April 1, A. D. 1886, both of which mortgages were recorded on the first day of April, 1881.

"(4) That on the eighteenth day of June, A. D. 1881, said Lydia Richter reconveyed said premises to plaintiff by warranty deed, which deed was recorded October 10, A. D. 1882, the plaintiff assuming the payment of said mortgages, which was the only consideration for said deed and reconveyance, except that said plaintiff told said Lydia Richter that unless she reconveyed he would sell his personal property and leave her. Plaintiff had no way to provide for said Lydia except said land.

"(5) That on the thirty-first day of May, A. D. 1882, such proceedings were had as that the said Lydia Richter was found to be insane, and ordered by the probate judge of Clay county, Kansas, to be committed to the insane asylum of the state of Kansas, and she was accordingly sent to said asylum, and has remained there ever since said time.

"(6) That afterwards such proceedings were had as that George W. Martin was appointed guardian of said Lydia Richter, and by appropriate proceedings thereafter the premises in question were sold to the defendant Deetjen, to pay the costs of the proceedings wherein said Lydia Richter had been adjudged insane, and the said probate judge having approved the proceedings a deed was made by said guardian to said defendant for said premises on the third day of August, A. D. 1882, and filed for record on the third day of August, 1882; the terms of said sale being the payment of $300 cash and the assumption of the payment of the said mortgages, which said $300 cash was paid by the defendant, and said mortgages also were paid off by him on the fourth day of October, A. D. 1882, the said mortgages at the time amounting to the sum of $350; and $- -, interest and principal, had previously been paid upon said mortgages, making in all the sum of $ paid by him thereon; also, one-half the taxes for the year 188- were paid by defendant, amounting to $

"(7) That until the time said Lydia Richter was found to be insane, by said proceedings in said probate court, she and her father, the plaintiff, resided upon said premises, plaintiff having no other family, but the cultivated ground upon said premises had been leased for that season, by plaintif, to one Stober. The lease to Stober was made in the spring of that year, viz., in the year 1882, and the fact that said Stober was farming said land as the tenant of Rudolph Richter was known to said defendant at the time, but he did not have actual notice of the deed from Lydia Richter to plaintiff, nor did he inquire into the title, although he knew, as stated, that Stober was farming said premises as the tenant of said Rudolph Richter, and that said Rudolph Richter and Lydia had resided upon said land continuously from the date of said patent from the U. S until said Lydia was found to be insane.

"(8) That at the time defendant showed plaintiff his deed, after he had obtained the same from the said guardian of Lydia Richter, plaintiff gave defendant one of the keys to the house upon said premises, and said Stober gave him the other of said keys. Plaintiff at the same time also gave defendant & notice he had received of an installment of interest being due upon said mortgage, and told him to pay it. At the time of doing this plaintiff was not in good health, and was considerably excited and quite nervous.

"(9) That the amount paid on said mortgages has never been tendered back

to defendant by plaintiff, or any one ir. his behalf. nor has plaintiff ever demanded possession of said premises from the defendant."

And thereon made the following conclusions of law:

"(1) That the defendant, if he desires to do so, should be allowed to file an amended answer herein, to correspond with the facts as found by the court, so as to ask to be subrogated to all the rights of the mortgagees in said mortgages paid off and discharged by said defendant, and setting aside the release of said mortgages.

"(2) That if such amended answer is filed, that then the defendant will, as matter of law, be entitled to relief of the character mentioned in the preceding conclusions of law.

"(3) That the plaintiff is entitled to a judgment for the possession of the premises in question, notwithstanding his deed was unrecorded at the time of the purchase at guardian's sale by defendant, for the reason that he knew said Stober was tenant of said premises under said plaintiff, and was therefore bound to inquire as to plaintiff's title, and was bound to take notice of plaintiff's title by reason of plaintiff's living upon said land, and the land being farmed by said tenant.

"(4) That plaintiff is entitled to a judgment against said defendant for costs of suit."

To all and each of said conclusions of fact and of law the defendant at the time duly excepted.

Afterwards the court rendered judgment that the plaintiff recover of the defendant the land described in the petition, together with his costs in the action. The court, however, under the amended answer filed by the defendant, adjudged that the amount of the mortgages given by Lydia Richter upon the premises, together with all taxes. paid by the defendant, were a lien in favor of the defendant upon the land. The defendant excepted, and brings the case here.

Harkness & Godard, for plaintiff in error.

Anthony & Kellogg, for defendant in error.

HORTON, C. J. The deed from which Rudolph Richter deduced. his title was prior in point of time to that of Deetjen; but as it had not been recorded at the time of the guardian's sale, the question is, did Deetjen, at his purchase, have actual or constructive notice of the title of Rudolph Richter in the premises? In other words, did he obtain his deed under such circumstances that he is bound to know the title that Rudolph Richter has to the premises? It appears that Rudolph Richter and his daughter, Lydia, had lived together as father and daughter upon the premises from the time the land was patented until the daughter was declared insane, and there were no other members of the family. Counsel claim that the evidence before the trial court was not sufficient to charge Deetjen with notice, or even to make him suspect that Rudolph Richter has any claim upon the land. The evidence shows that the plow land had been leased for the season of 1882 to Charles Stober, the lease being made in the spring of that year. Deetjen testified that "he knew that Stober was working a part of the Richter place during the summer of 1882; that some time during the summer, before his purchase, Stober told him he rented the

land from Rudolph Richter; that at the time he knew Rudolph Richter and his daughter were living together on the premises." Charles Stober testified that "he rented the plow land for the season of 1882 from Rudolph Richter; that during the summer of 1882 he had a conversation with Deetjen, in which he told him that he rented the plow land on the place from Rudolph Richter." He further testified that "during that season he worked the plow land on the premises." We think, therefore, that the evidence was sufficient to sustain the finding of the trial court that "the fact that said Stober was farming the land as the tenant of Rudolph Richter was known to Deetjen at the time of his purchase." And we also think that the trial court did not err in deciding that, "as Deetjen knew that Stober was in the possession of the premises as the tenant of Rudolph Richter, he was bound to inquire as to Rudolph Richter's title. Johnson v. Clark, 18 Kan. 157; School-district v. Taylor, 19 Kan. 287; Greer v. Higgins, 20 Kan. 420.

We have already held that the open, notorious, and exclusive possession of real estate under an unrecorded deed requires a subsequent purchaser to take notice of the occupant's title. We do not understand the rule to be that a person must actually reside upon the land to make his possession notice; he may actually improve and cultivate it, and perform open, notorious, and decided acts of ownership over it without residing upon it; he may cultivate and improve it by a tenant, for the possession of the tenant is his possession. There is some conflict in the authorities whether the possession of a tenant under a lease is notice simply of his tenancy, or of his tenancy and also of his landlord's title. But "there seems no good reason why, if it be admitted that possession is notice, or evidence of notice, there should be any modification of the rule that the possession by the tenant is the possession of his landlord. If the purchaser has followed up the suggestion which the possession of the premises by a third party implies, he will inquire of the actual occupant with the probability of learning that he holds as lessee of another. Inquiry cannot safely stop here, for the next step suggested by the circumstances would be to inquire of the landlord." Wade, Notice, § 286; 1 Hil. Vend. p. 4, subds. 3-8; Wickes v. Lake, 25 Wis. 75; 1 Jones, Mortg. § 600; Bank v. Flagg, 3 Barb. Ch. 316; Wright v. Wood, 23 Pa. St. 120.

Deetjen had notice that Stober leased from Rudolph Richter, and this was notice that Rudolph Richter was in possession by his tenant. If Deetjen had made proper inquiries, he would have been led to the knowledge of the fact that Rudolph Richter had the title to the premises. Information which makes it the duty of a party to inquire, and shows where such an inquiry may be effectual, is notice of all the facts which might be thereby ascertained. No purchaser of real estate is at liberty to remain intentionally ignorant of facts relating to his purchase within his reach, where the property is in the actual, open, visible, notorious, and exclusive possession of another, and then claim