Larrance v. Lewis
| Decision Date | 18 June 1912 |
| Docket Number | No. 7,674.,7,674. |
| Citation | 51 Ind.App. 1,98 N.E. 892 |
| Parties | LARRANCE v. LEWIS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vermillion County; W. A. Kerrns, Special Judge.
Action by Paris H. Larrance against Mark Lewis. From a judgment for defendant, 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, Ind.; 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 upon his title; that appellant, before bringing this action, made a demand upon 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, and will continue to remove, valuable timber therefrom, unless enjoined from so doing. 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 upon application a temporary restraining order was issued, and a bond duly executed. Afterwards, upon 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, one C. F. Haworth and one 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, one 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 upon which the timber was located, but described a different tract also conveyed in said deed and upon 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 upon 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 upon said real estate and remove the timber therefrom; that he accepted such conveyance with full knowledge of the fact that said timber had previously been sold and belonged to appellee, 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 upon said land and to cut and remove said timber. A copy of the contract for the sale of the timber was filed with 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.
[1] 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 sale of an interest in real estate and must be in writing to bind either party. The contract here involved is in writing, and 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 value consideration. Burns' 1908, § 3962; State Bank of Indiana v. Backus, 160 Ind. 682-694, 67 N. E. 512;Sills v. Lawson, 133 Ind. 137-141, 32 N. E. 875. In Mueller v. Brigham, 53 Wis. 173, 10 N. W. 366, the Supreme Court of Wisconsin had under consideration a statute similar to section 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.
[2] 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. Armes, 96 N. E. 196-199;Oglebay et al. v. Todd, 166 Ind. 250-255, 76 N. E. 238;Wagner v. Winter, 122 Ind. 57-62, 23 N. E. 754; Hazlett v. Sinclair, 76 Ind. 488-493, 40 Am. Rep. 254. This provision of the deed was enough to put...
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