Morrow v. Cole.

Douglas, J.,

concurring in result only: I concur in the granting generally of a new trial with some reluctance. I do not think that Rickman is responsible for the damages awarded in this action, because the plaintiff has not lost title to her land. If she has lost her land as a result of Rick-man’s misconduct, then I think Rickman would be liable.

On the other hand I do> not see how the jury could have been misled by the form of the fourth issue, which was as follows : “Did P. H. Guice, one of the defendants in this action, take title to’ the land in controversy from G. LI. P. Cole with notice of the rights of the plaintiff, Mary E. Morrow, in said land ?” The court seems to think that the jury might not know what rights were referred to. It means of course the rights which the plaintiff is asserting in this action. There is nothing else to' which it could refer. If the plaintiff had any rights in the land at the time Guice bought, and if he then had any notice, either actual or constructive of such rights, he bought subject thereto. The opinion of the court says that Guice was entitled to' the issue he tendered, as follows: “If the sale was fraudulent on the part of Long, Cole and Rickman, did Guice take his deed with knowledge *685 of the same ?” To my mind this is clearly error. It was not necessary that Guice should know of Ms own knowledge that the proceedings were fraudulent. It would be enough if he had sufficient information to put him upon notice, which would hold him liable, not only for such knowledge as he already possessed, but also for such further knowledge as he might have acquired by proper investigation. It is true the court says that “the- word ‘notice’ would have been a more appropriate word than ‘knowlege’,” but these words have different meanings, and “notice” was the only word that could properly have been used. As the issue tendered by the defendant was erroneous per se, there can be no error in its refusal.

The opinion says that Guice “might have come to the conclusion, as he had a right to do that the claims and rights of the plaintiff had been disposed of by the sale of the defendant Rickman, administrator.” This cannot be so. The illegality of that proceeding is the basis of this action, and if Guice had the legal right to come to any such conclusion without further investigation, it would seem unnecessary to submit any issue to the jury as to Mm.

There is some important evidence that seems to have been overlooked by the court in its opinion. There is not only testimony tending to prove that Guice knew that the land descended to the plaintiff as sole heir at law of her mother, but he himself testifies that he was told by Dr. Cole, from whom he bought, that “there had been some trouble about the title,” but that he made no investigation whatever, as Dr. Cole told him that it was all right and he (Cole) would stand between him and all danger. Knowing that the plaintiff had inherited the land, it would seem that he might have asked her if she still made any claim to it.

Walker, J., concurs in the opinion of Douglas, J.