Henderson v. Wanamaker

• Decision Date: 01 March 1897
• Citation: 79 F. 736
• Parties: HENDERSON V. WANAMAKER.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F. 736

HENDERSON V. WANAMAKER.

United States Court of Appeals, Eighth Circuit.

March 1, 1897

A. S Blake, for plaintiff in error.

M. F Taylor (E. T. Wells and John G. Taylor with him on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District

SANBORN Circuit Judge.

This writ of error was sued out to reverse a judgment in favor of a defendant in possession in an action at law to recover specific real property. On February 11, 1890, John Baker brought this action against Jonas E. Wanamaker, the defendant in error. In his complaint he alleged that he was the owner and in possession of the land in dispute, on December 18 1888; that about December 21, 1888, the defendant wrongfully ousted him from the possession, and thereafter withheld it from him. The defendant answered. In his answer he denied that Baker was ever the owner or in possession of the property, denied that he was ever entitled to the possession denied the ouster, and averred that he, the defendant, and his grantors, had for more than five years preceding the commencement of the action held the peaceable possession of the property, under color of title, in good faith, and had paid all the taxes against the property during that time. In November, 1890, Baker sold and conveyed the land to the plaintiff in error, J. A. Henderson, and he was substituted for Baker as plaintiff in the action on November 5, 1890. The statutes of Colorado provide that the adverse possession of real estate under color of title in good faith, and the payment of taxes for five consecutive years, shall constitute and unassailable title to land. 2 Mills' Ann.St.Sec. 2923. On November 3, 1894, the defendant, by leave of the court, filed a further answer to the effect that, before the commencement of the action, Baker had conveyed to and vested in Michael D. Clifford all the title and interest he ever had in the property. Replications were filed to both of these answers, and upon the trial there was evidence of these facts: The title, according to the records, in 1890, was in the name of Baker. He had, however, conveyed the land to Clifford in 1873 by a deed that had never been recorded, and from that time until 1887 it was vacant and unoccupied, and neither Baker nor Clifford paid any taxes upon it or exercised any acts of ownership over it. In 1887 the grantor of the defendant, who claimed the land under a void tax deed, entered upon and fenced it, and from that time he and the defendant had possession of it and paid the taxes upon it. When this action was commenced the title of the defendant by five years' continuous possession had not matured, so that the action of Baker was not barred by the statute. When, however, in 1894, the defendant first specifically pleaded the defense that Baker had conveyed to Clifford, he and his grantor had been in possession and paid taxes for more than five years, so that any claim of Clifford to the land was then barred by the statute as against the defendant in possession.

1. It is assigned as error that the court charged the jury that the present plaintiff stood in the shoes of the original plaintiff, Baker, and could not successfully claim the rights of a bona fide purchaser without notice of the unrecorded deed to Clifford. The court below was right, (1) because the defendant was in possession of the land when the plaintiff bought of Baker, and that possession was in itself notice of every defect in and defense against Baker's title which the defendant could make (Leighton v. Young, 10 U.S.App. 298, 314, 3 C.C.A. 176, 197, 52 F. 439, 445); and (2) because the plaintiff bought the title of Baker pendente lite. The answer in the case which was on file when he bought denied that Baker had any title to the property. As Baker contented himself with a general allegation of title, and did not attempt to deraign it, the general denial of that title in the answer was a sufficient pleading to entitle the defendant to prove a conveyance by Baker, or any other fact which would show that he had no title when the action was commenced. The defendant in ejectment is never required to plead specific defenses to a title which the plaintiff does not disclose in his complaint, and of which the defendant may be ignorant, but, when the title is presented by proof, he may introduce under his general denial any evidence that will defeat it. Kipp v. Bullard, 30 Minn. 84, 14 N.W. 364; Lain v. Shepardson, 23 Wis. 224; Mather v. Hutchinson, 25 Wis. 27; Marshall v. Shafter, 32 Cal. 177. The action and the original answer of the defendant were therefore notice to the purchaser, Henderson, of every act and conveyance of the original plaintiff, Baker, by which the defendant might show that Baker had no title at the date of the alleged ouster and at the date of the commencement of the action. When he bought the title openly challenged by the possession and answer of the defendant, he bought with it his grantor's lawsuit and notice of every defense which Wanamaker might lawfully make to it. He could not purchase in the face of this action, answer, and possession, and then interpose against defeat the shield of a bona fide purchaser without notice. Kinney v. Mining Co., 4 Sawy. 382, 451, Fed.Cas.No. 7,827; Skews v. Dunn, 3 Utah, 186, 191, 2 P. 64.

2. Complaint is made that the court below admitted evidence of declarations made by Baker before he conveyed to the plaintiff to the effect that he had previously conveyed his title to Clifford, and had no interest in the property in dispute. But the admissions of a grantor against his interest, made while he held all the title that his grantee has acquired or relies upon, are always admissible against the latter, unless he is protected by his character of an innocent bona fide purchaser, as the plaintiff here is not. Baker v. Humphrey, 101 U.S. 494, 499.

3. The assignment of error upon which counsel for plaintiff seems to rely most confidently is, however, that the court below refused to instruct the jury that Baker's conveyance to Clifford constituted no defense to this action, if Clifford's claim to the land was barred in 1894, when the defendant first specifically pleaded it, by virtue of the statute of limitations and the defendants five years' possession thereunder, and did charge them that if Baker had conveyed all his title to Clifford before he commenced the action, and before he conveyed to the plaintiff, that fact constituted a perfect defense to the action. He bases this...