Larrance v. Lewis
| Decision Date | 18 June 1912 |
| Docket Number | 7,674 |
| Citation | 98 N.E. 892,51 Ind.App. 1 |
| Parties | LARRANCE v. LEWIS |
| Court | Indiana Appellate Court |
From Vermillion Circuit Court; Gould C. Rheuby, Special Judge.
Action by Paris H. Larrance against Mark Lewis. From a judgment for defendant, the plaintiff appeals.
Affirmed.
E. E Neel and A. T. Livengood, for appellant.
Hugh H Conley, Paul H. Conley and W. Bert Conley, for appellee.
The nature of this action and the questions raised by the appeal are best presented by a summary of the pleadings filed in the case.
Appellant's complaint is in two paragraphs, each of which is, in substance, as follows: That appellant is the owner in fee simple and entitled to the possession of certain described real estate, situated in Vermillion county, Indiana; that appellee is unlawfully holding possession of the same and claiming an interest in said real estate, which claim is wholly without right; that said claim is adverse to appellant and a cloud on his title; that appellant, before bringing this action, made a demand on appellee for possession of said real estate, which demand was refused; that while in possession of the premises, appellee has, without right, removed valuable timber from the same; that he is still removing valuable timber therefrom, and will continue so to do unless enjoined. Wherefore appellant asks for damages, for possession of said premises, that his title thereto be quieted, and that appellee be enjoined from further removing said timber.
The complaint was verified, and on application a temporary restraining order was issued and a bond duly executed. Afterwards on motion the restraining order was dissolved.
Appellee filed a general denial and a special paragraph of answer, in which he admitted that appellant was the owner of the real estate described in the complaint, but averred that prior to the time appellant purchased said real estate, appellee purchased of the owners, C. F. Haworth and William Bennett, all the timber in the section in which the real estate in controversy is situated, except four trees, which were reserved by the contract; that at the time appellant's grantor, Hall, purchased of said Bennett and wife the land described in the complaint, the timber on said land was reserved by the terms of the deed and did not pass to said Hall; that, by mutual mistake of all the parties thereto, the clause in said deed so reserving said timber did not describe the tract of land on which the timber was located, but described a different tract also conveyed in said deed, and on which there was no timber; that at the time of said conveyance said Haworth also owned some interest in said timber; that after said conveyance said Hall made no claims to the timber in question, but recognized that the same had been reserved; that before the conveyance of the real estate from said Hall to appellant, appellee, with Hall's knowledge and consent, entered on said premises, took possession of the timber thereon, and began the removal of the same; that such possession of said timber and work in cutting and removing the same was open, obvious and notorious, and was continuous and in full operation at the time appellant purchased said real estate from said Hall, and for some time thereafter, without objection on the part of appellant; that at the time appellant purchased said real estate he was fully informed of the fact that appellee had purchased said timber, and that he had the right to enter on said real estate and remove the timber therefrom; that appellant accepted such conveyance with full knowledge of the fact that said timber had previously been sold to appellee and belonged to him, and that he had the right to remove the same; that appellee claims no interest in said real estate, except the license given him by said contract to enter on said land, and to cut and remove said timber. A copy of the contract for the sale of the timber was filed with the complaint as an exhibit.
Appellant's demurrer to this answer was overruled, and issues were joined by a reply in general denial. The cause was tried before a special judge, who found for appellee.
The first question presented by the appeal is the alleged error of the court in overruling appellant's demurrer to the second paragraph of appellee's answer.
In attacking this answer appellant has presented several propositions of law about which there is no controversy.
The fourth proposition, which presents the only controverted question, is that "conveyances of any interest in lands shall be, by deed in writing, subscribed, sealed and duly acknowledged by the grantor or his attorney."
It is conceded by appellee that a contract for the sale of growing timber is a contract for the sale of an interest in real estate, and must be in writing to bind either party. The contract here involved is in writing, and is signed by the parties thereto. The question then arises: Should the contract have been acknowledged and recorded in order to bind appellant?
An unrecorded conveyance of an interest in real estate is valid as against every person except subsequent purchasers, lessees and mortgagees in good faith and for a valuable consideration. § 3962 Burns 1908, § 2931 R. S. 1881; State Bank, etc., v. Backus (1903), 160 Ind. 682, 694, 67 N.E. 512; Sills v. Lawson (1892), 133 Ind. 137, 141, 32 N.E. 875.
In Mueller v. Brigham (1881), 53 Wis. 173, 10 N.W. 366, the supreme court of Wisconsin had under consideration a statute similar to § 3962, supra, and there held, that "to purchase in good faith is to purchase without knowledge of the outstanding incumbrances, or any information sufficient to put the purchaser upon inquiry." Furthermore, the deed to appellant's grantor is shown to have contained a clause reserving the timber in question.
A purchaser is bound to take notice of the terms and recitals in the prior deeds which constitute his chain of title, and in law he is presumed to have examined such deeds. Gregory v. Arms (1911), 48 Ind.App. 562, 96 N.E. 196, 199; Oglebay v. Todd (1906), 166 Ind. 250, 255, 76 N.E. 238; Wagner v. Winter (1890), 122 Ind. 57, 62, 23 N.E. 754; Hazlett v. Sinclair (1881), 76 Ind. 488, 493, 40 Am. Rep. 254.
This provision of the deed was enough to put appellant on inquiry, and to suggest to him that such reservation was intended to apply to the land on which there was no timber rather than to a portion on which there was no timber. These facts, coupled with the averments that appellant purchased the land with notice and full knowledge of the rights of appellee to said timber, and that the same was at the time of such purchase being cut and removed in pursuance of such right, are sufficient to show that appellant was not a bona fide purchaser of such timber, as against the claim of appellee. Salmon v. Norris (1903), 81 N.Y.S. 892, 895, 82 A.D. 362; Gerow v. Castello (1888), 11 Colo. 560, 19 P. 505, 7 Am. St. 260; Manley v. Tow (1901), 110 F. 241, 254.
As between the parties, the contract was good, even without an acknowledgment. Wines v. Woods (1887), 109 Ind. 291, 10 N.E. 399; Bever v. North (1886), 107 Ind. 544, 8 N.E. 576; Blair v Whittaker (1903), 31 Ind.App. 664,...
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