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April Term, 1920.

Rep. 830. Mesne profits recoverable only after re-entry: 28 A. & E. Enc. Law 596, 608; 19 Wend. (N. Y.) 507; 4 Harr. (Del.) 209; 3 Suth. Damages, sec. 991; 9 R. C. L. "Ejectment," subd. 108-11. Defendant making entry in good faith liable only for rents and profits received: 14 S. C. 292; 38 S. C. 440; 39 S. C. 239; 42 S. C. 528. Possession of Cathcart was not constructive notice to Matthews: Pom. Eq. Jur., vol. II, secs. 615, 620, 621, 622. Requisites of possession: 23 A. & E. Enc. L. 504, 505, 508; 22 S. C. 32; 31 S. C. 322; 91 S. C. 9. Plaintiff should be estopped in equity from maintaining this action: 45 S. C. 518; 79 S. C. 269. Not set up in answer but unnecessary to plead it: 27 S. C. 235; 81 S. C. 332. Although it has been held that it is a legal defense: 81 S. C. 332; 89 S. C. 393. Estoppel will apply in such cases: 4 Rich. Eq. 105; 9 S. C. 20; 22 S. C. 548; 57 S. C. 451; 67 S. C. 385; 67 S. C. 452; 81 S. C. 329; 93 S. C. 404; 95 S. C. 338; 97 S. C. 129. Where legal title is vested in trustee, and such trustee conveys, the grantee having no knowledge of breach of trust or of declaration of trust, the grantee took good title: Perry Trust (1st Ed.), secs. 334, 335; 1 Strob. 45. If grantee knew of breach of trust she became a constructive trustee and upon entry of cestui que trust into possession such possession would be deemed to be permissive and in subordination to legal title, unless he gave notice of disavowal of trust relationship: 1 Cyc. 1039; 35 S. C. 609; 36 S. C. 56; 36 S. C. 322; 42 S. C. 50; 42 S. C. 63; 77 S. C. 129; 78 S. C. 513. Adverse possession must be with intention to hold adversely: 1 A. & E. Enc. Law 789-91; 2 Bail. 603; Harp. 419; 2 McC. 289; 3 McC. 322; 90 S. E. 152 (N. C.); 90 S. E. 661 (Va.); 13 S. C. 599-600; 35 S. C. 431; 103 S. C. 460. Purchaser with notice from a grantor who had no notice will be protected: 2 Perry Trusts, sec. 830; 17 Am. St. Rep. 281; 23 S. C. 494; 60 S. C. 172; 6 Rich. Eq. 176-77. Law will presume that Matthews' grantor was a bona fide purchaser for value: 1

Greenleaf Evid., sec. 23; 17 Am. St. Rep. 281; 34 S. C. 533; 60 Miss. 636.

Messrs. Jas. W. Hanahan and Glenn W. Ragsdale, for respondent, cite: Measure of damages against a trespasser is rental value: 6 Rich. Eq. 302; 2 Strob. Eq. 157; 42 S. C. 528; 16 S. C. 481; 14 S. C. 307. Against one lawfully in possession the measure is rents and profits received, with duty to account, and if he fails to account then he is liable for rental value: 53 S. C. 350; 82 S. C. 256; 90 S. C. 21; 70 S. C. 220; 13 Rich. L. 59; 1 Greenleaf Evid. (9th Ed.), vol. II, sec. 635; Hale Damages, sec. 149, p. 357; A. & E. Enc. Law, vol. X, p. 356. In old action of ejectment nominal damages could be recovered; a subsequent action of trespass for mesne profits being allowed: 10 A. & E. Enc. Law, pp. 535-6-7; 13 Rich. L. 59; 28 A. & E. Enc. L. 595; 39 Cyc. 1134. Plea of bona fide purchaser for value without notice is affirmative, and burden of proof is on him who desires benefit of it: 93 S. C. 167; 16 S. C. 579; 57 S. C. 35; 59 S. C. 137; 93 S. C. 404.

October 11, 1920.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

This is the third appeal. The facts are stated in the opinion on the last appeal (105 S. C. 329, 89 S. E. 1021), On the last trial, the jury found

and need not be repeated.

a verdict for plaintiff for $1,000, and from judgment thereon defendants appealed.

The exceptions cover 12 pages of the record. They are so prolix and multifarious as to make it difficult to analyze or classify them. To consider them in detail would require an opinion of great length, which would serve no useful purpose.

There was no error in admitting testimony as to the rental value of the property in dispute. We held on the last appeal

that the action could not be sustained as one for rents and profits, but it does not follow from that that the

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rental value of the property could not be proved as a measure of the damages for withholding the possession thereof, from plaintiff's intestate. The verdict is conclusive of the fact that defendants' testator was a trespasser, against whom rental value may be proved as an element of actual damages. Rabb v. Patterson, 42 S. C. 528, 20 S. E. 540, 46 Am. St. Rep. 743, and cases cited; Shired v. Nesbit, 90 S. C. 20, 72 S. E. 545.

Matthews claims title as a bona fide purchaser for value without notice of the claims of John H. Cathcart. He based that defense both upon the allegation that his grantor, Eliza

beth Cathcart, was such a purchaser, and that he 2 himself was such. The Court correctly instructed

the jury as to both grounds of defense, in language too plain to be misunderstood. They were told that, if Elizabeth Cathcart was such a purchaser, Matthews having acquired her title, the verdict must be for defendants, unless John H. Cathcart afterwards acquired title by adverse possession before Matthews bought it. When the Court came to instruct the jury as to the defense that Matthews himself was such a purchaser, he told them, in response to one of plaintiff's requests, that if they should find that, at the time that Matthews acquired Elizabeth Cathcart's title, he had notice of such circumstances relating to John H. Cathcart's claim as would be sufficient to put a reasonable prudent. man on inquiry, he would be chargeable with such notice as reasonably diligent inquiry would have disclosed. The contention that this instruction eliminated the first ground of defense that Matthews had the right to stand upon the validity of his grantor's title is untenable. The jury had been instructed, time and again, that if Elizabeth's title was good, the verdict must be for defendants. They were so instructed afterwards, in response to some of defendants' requests, so plainly that they could not have misunderstood

Opinion of the Court.

[115 S. C. the instruction here complained of, or been misled by it. Besides, after giving the requests of both sides, the Court admonished the jury that they must be considered in connection with each other and the charge as a whole, as all the law applicable to the case could not be stated in a single proposition.

There was no error in submitting to the jury the defense of bona fide purchaser for value without notice. We held on the former appeal that it was a legal defense, because it

arose under the recording act. Besides, defendants 3,4 preferred requests with respect to that defense, which

were given; hence, even if that were an equitable defense to be heard by the Court, defendants would not be heard to complain, because it was submitted to the jury at their request. There is no force in the contention that that defense was reserved, as an equitable defense, by the order of Judge Moore at the first trial. That order was reversed on the first appeal (91 S. C. 464, 74 S. E. 985, Ann. Cas. 1914a, 36), and on the second appeal we held that it was a legal defense, because it arose under the recording act.

Nor was there error in the charge as to the law existing at the time of these transactions with respect to possession as affording notice of the rights of the party in possession.

Appellants contend that, when Matthews entered, the 5 possession was vacant, that is, that no one was in actual possession. That was an issue of fact which was submitted to the jury, on proper instructions as to when a possession might be said to be vacant. There was testimony that John H. Cathcart had been in actual possession of the storehouse for a long time before Matthews bought; that his possession was open and notorious, and in fact known to Matthews; that he left the store closed and locked, and left some books in it, which were thrown out, when Matthews entered. This testimony warranted the inference

that his possession had not been surrendered or abandoned, and it was sufficient to put Matthews on inquiry as to his rights, and warranted the inference that Matthews invaded his possession; otherwise we could not have held, as we did, on both the former appeals that the action could be sustained as one for trespass upon his possession.

As to the defense that Elizabeth Cathcart was a bona fide purchaser, whose title Matthews acquired and had the right to stand on, the Court correctly charged the jury, in accord with the decision of this Court on the former appeal, 6 that the law would indulge the presumption, after the

lapse of so great a time, that there was no breach of trust in the conveyance to her, and that she was a bona fide purchaser without notice of John H. Cathcart's rights under the declaration of trust; also that there was a presumption. that his possession thereafter was in subordination to the legal title. But he also told them, and correctly, that these presumptions were rebuttable, and that the burden was on plaintiff to prove that the subsequent possession of John H. Cathcart was adverse to the holder of the legal title. Appeliants contend that there was no testimony tending to prove that Elizabeth Cathcart had notice of the rights of John H. under the declaration of trust, when she purchased the title, or that his possession subsequent to the conveyance to her was adverse to her. While there was no testimony that she had notice of the existence of the declaration of trust, there was testimony sufficient to put her on inquiry as to John H. Cathcart's right in the property-very much the same that we have held to be sufficient to put Matthews on inquiry, when he purchased, and the testimony was sufficient to sustain the verdict.

We have considered the charge carefully, and find no error in it, or in any ruling complained of.

Judgment affirmed.