Hopkins v. O'brien

• Decision Date: 25 May 1909
• Court: Florida Supreme Court
• Parties: HOPKINS et al. v. O'BRIEN et al.

49 So. 936

57 Fla. 444

HOPKINS et al. v. O'BRIEN et al.

Florida Supreme Court, Division B.

May 25, 1909

Headnotes Filed June 29, 1909.

Appeal from Circuit Court Taylor County; Bascom H. Palmer, Judge.

Bill by George W. Hopkins and others against William O'Brien and others. Decree for defendants, and complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

Under our recording laws, subsequent purchasers, acquiring subsequent title without notice of a prior unrecorded deed will be protected against such unrecorded conveyance, unless the party claiming thereunder can show that such subsequent purchaser acquired his title with notice of such unrecorded conveyance, and that the burden of showing such notice is upon the party claiming under such unrecorded conveyance, and that all of the presumptions in such a case are in favor of the bona fides of such subsequent purchaser, and that he acquired his subsequent title in good faith and without notice of the prior unrecorded conveyance, and that the burden is on the party who has neglected to record his prior title to show that the subsequent purchaser has acted in fraud of his rights by purchasing with notice of his unrecorded prior conveyance.

The evidence in this case does not clearly establish the right of the complainants, claiming under a prior unrecorded deed, to relief against a subsequent purchaser for value under an application of the rule stated in the first headnote.

Reputed ownership in the neighborhood of land by parties claiming under a prior unrecorded deed cannot be regarded as notice to subsequent grantees not living in the neighborhood.

COUNSEL

Hendry & McKinnon, for appellants.

Wm. H Baker, T. M. Puleston, and S.D. Clarke, for appellees.

George W. Hopkins of Michigan, Charles Marthinson of the District of Columbia, and Mattie C. Collins of South Carolina, on the 8th of November, 1906, filed a bill in the circuit court of Taylor county against William O'Brien of Minnesota and William and Mary Girardeau of Jefferson county, Fla., alleging: That they were the owners, by purchase of William Girardeau and Mary his wife and a warranty deed of conveyance from them dated October 25, 1902, of the S.E. 1/4 of the N.W. 1/4 and the N.E. 1/4 of the S.W. 1/4, and the N.W. 1/4 of the S.E. 1/4 of section 24, township 2 S., of range 5 E., containing 120 acres of land more or less; that soon after said purchase they went into actual possession of said property through their agent and tenant B. P. Kemp, who has continued every year to cultivate a portion thereof in crops of corn, cotton, etc.; that soon after obtaining title to said lands orators posted same by printed notices warning all persons against cutting timber on said land, nailing said notices to trees standing on said land; that said notices were given over the name of Charles Marthinson, one of the orators, and continued on said trees during the years 1903, 1904, 1905, and 1906; that they have paid the taxes on said land continuously since going into possession thereof; that in the month of July or August, 1904, one T. H. Irwin, agent for William O'Brien, went on said land and applied to orators' agent to advise him who owned said land; that said agent Kemp advised Irwin that said property was the property of orators, or of orator Marthinson; that Irwin then requested orators' agent to give him the post office address of said Charles Marthinson; that Kemp advised Irwin he (Kemp) was the agent and tenant of Marthinson, gave him the post office address of the latter; that said notices were posted on said land at that time; and that Irwin was then agent of O'Brien.

The bill alleges: That during the month of August or September, 1904, said Irwin applied to William Girardeau for a deed to said land, and the latter informed Irwin he had parted with the title to said land and could not sell the same; that on September 28, 1904, Girardeau and wife executed and delivered a warranty deed conveying said land to William O'Brien, which orators allege on information was without adequate or sufficient consideration; that orators' deed of conveyance of said land was not recorded in Taylor county until the 26th of July, 1905; that the deed from Girardeau and wife to O'Brien was recorded in Taylor county on the 3d of October, 1904; that O'Brien was not a bona fide purchaser for valuable consideration and without notice of said lands, but was advised and informed of your orators' title to said land, and took his deed with notice of orators' title; that O'Brien's deed from Girardeau is a cloud on orators' title. The bill prays for the cancellation of the deed to O'Brien from Girardeau as a cloud on orators' title, etc., and waives answers under oath.

William O'Brien answered the bill, denying that complainants were the owners of the land in question, that he is not advised except as alleged that complainants purchased the land, and same was conveyed to them by Girardeau and wife October 25, 1902, and demands proof; denies that complainants went into possession of said land through their agent and tenant Kemp, or that Kemp went into actual possession of said lands as agent of complainants in the months of August and September, 1904; denies that the lands were posted as alleged; denies that said notices were ever seen or read by defendants' agent; denies that by such or any other means or in any other way defendant acquired any information of the alleged claim of ownership of the lands by complainants; denies that complainants returned or paid the taxes on said lands prior to the purchase thereof by the defendant; and alleges that immediately prior to the time defendant purchased said lands the taxes were unpaid, and outstanding certificates of sale for taxes were unredeemed and in possession of the clerk of Taylor county, and that said certificates were redeemed by Girardeau prior to the purchase by defendants. The answer admits that Irwin was agent of defendants in July and August, 1904, and went on portions of said lands to ascertain the amount of standing timber thereon which were in the vicinity of other lands owned by defendant; denies on information and belief that prior to the purchase of said lands by defendant Irwin advised with Kemp, or that Kemp advised or informed Irwin that Marthinson or any other person owned the lands in question; denies that Irwin asked Kemp for the post office address of Marthinson, or that Kemp gave him that information, or that Kemp was the agent and tenant of Marthinson, or (on information and belief) that Irwin saw or found any notices posted on said land at the time he examined it. The answer denies that Girardeau informed Irwin, when the latter applied for a deed to the said lands, he (Girardeau) had conveyed them to other parties, and alleges Girardeau and wife conveyed said lands to defendant on September 28, 1904, for ample consideration, viz., $1,200 paid Girardeau by defendant; that at that time tax certificates were outstanding against said lands, and Girardeau paid $75 to redeem the same before defendant paid any money to him, and defendant agreed to purchase said lands; that at that time defendant diligently examined the records of Taylor county, and there was not of record any deed of said lands from Girardeau and wife to complainants, or any other person; that the records showed the title in Girardeau subject only to outstanding taxes and tax certificates; that defendant was a bona fide purchaser of said lands for value and without notice, actual or constructive, or any knowledge of any rights of equities of complainant in or to said lands, and denies defendant's deed is a cloud on complainant's title. The answer then alleges that complainant has admitted a good title in defendant by electing to take another and different remedy and means of redress for these wrongs, and that on the --- day of -----, 1909, with full knowledge of defendant's deed and his rights, complainants did begin a suit in the circuit court of Jefferson county against William Girardeau for $1,200 and sought to recover a judgment for the same, and that said suit was pending when the bill of complainant was filed, and that service of process had issued and had been served on Girardeau. A copy of the declaration is attached to the answer as a part thereof.

In the declaration it is alleged, among other things, that Girardeau, with intent to defraud complainants, conveyed the lands in dispute to O'Brien and refused and neglected to advise O'Brien that he had previously sold said lands to complainants, and that no one else so advised O'Brien and that O'Brien was a bona fide purchaser without notice actual or constructive of the complainants' rights.

William Girardeau and wife answered the bill alleging, in substance among other things, that they knew nothing of the alleged deed from them to complainants, as the same is not attached as exhibit to the bill or made a part of it. They deny that complainants returned the lands in dispute for taxation prior to September, 1904, or paid them, but allege that immediately prior to said date the taxes were unpaid, and unpaid tax certificates were outstanding and were redeemed by William Girardeau. They deny that T. H. Irwin, agent for William O'Brien, applied to them or either of them for a deed to said lands, or that they or either of them ever informed Irwin that they or either of them had parted with title to said lands and could not sell same. They admit they executed and delivered a warranty deed of these lands to William O'Brien on 28th of September, 1904, for the consideration of $1,200, and that the deed was recorded in the public records of Taylor county on the 3d of October, 1904, and that so far as they are informed O'Brien was on ...