KILLER .,. KERINL
961
authority. Therefore, in view of the agreed fact in the present case that the first redemption was sufficient in amount to satisfy the judgment, I hold that the judgment WitS functus officio, and the redemption void. There is no need to inquire about these innocent purchasers. A decree will be entered according to the prayer of the bill.
MILLER et
ale
'V. MERINE.
(Otrcutt Oourt, W. D. Missourt, W. D. September 1, 1890.) 1. DEED-RECORDIKG-PRIORITIES.
In 1870 G. conveyed certain land to B., and before the deed was recorded conveyed the same land to H., who paid the price in reliance on B.'s representations tllat G. had attempted to make him a deed which had been destroyed hecause it did not convey the land in question. Held, that under Rev. St. Mo. 1889, § 2420, declaring tbat an unrecorded deed of realty shall not be valid, except as between the parties and such as have actual notice thereof, the conveyance to H. was en1;itled to priority over that to B., though not first recorded. The premises in question having been purchased by one E. at a sale under a trustdeed executed by B.. H. applied to G. to protect his title, and tile latter thereupon procured E. to execute a quitclaim deed of the property to H. Subsequently H. mortgaged the property to his mother, who became the purchaser at a sale under the mortgage, and afterwards sold the premises to M. Held that, assuming that H. had notice that E. held the title for B.. that fact afforded no proof tllat his mother had notice, and that, in the absence of proof that M. had such knowledge, it was immaterial whether lL '8 mother had notice or not.
2.
VENDOR AND VENDEE-BONA FIDE PURCHASER.
At Law.
This is an action of ejectment for the recovery of a valuable tract of land now situated within the limits of Kansas Oity, Jackson county, Mo. The cause having been submitted on stipulation to the court without t\le intervention of a jury,the court makes the following special finding of material facts: First. George W. Bryant is as to these parties the common source of title. On the 21st day of April, 1870. Bryant was the owner in common with one H. F. Barr of the one undivided half of the land in contro\'ersy. H. F. Barr having since conveyed his interest to the wife of the defendant, that interest is nqtin dispute. On said 21st day of April. 1870, Bryant conveyed by deed of warranty to one W. H. Barr. which said deed his said was filed for record in the office of the recorder of said county on the 19th day of October, 1870. {Second. On the 23d day of July, 1870, and before the said deed from Bryant to William H. ::Barr was recorded, said Bryant conveyed said land by deed of warranty to John S. Homan. This deed was not. acknowledged until the 8th day of October. 1870, and was delivered immediately following its ThilS deed was recorded December 13, 1870. Thfrd. The sale of this land to Homan was made by said William H. Barr after thl' deed of Barr from Bryant, Barr representing to Homan at the time that Bryant had attempted to make him a deed for this land, but that the deed delivered to him by Bryant did not contain a description of tbisland, and on that account he had destroyed the same, leaving the title in Bryant, and tbat he would have Bryant make the deed directly to him, (Homan.)
t vol. 48.
,.Th/lreupon Barr:
Homan f;q see on. Batr'uepreslmtathat made to hlmllY Bryant did n?t cOl)vey the land questIon, and that Ae hall destroyed the ,same, Bryant,m l'eliancethereon,13arr befrlg nearly by blood or marriage to bim, made I/the deed mentioned' in paragraph 2 to Homan. Homan, In reliance upon the truth of this representation and· 3ssurance. of Barr, accepted the deed from Bryant, and paid the purchase price therefor. After the making and deliveryof this last deed from Bryant to Homan, Barr filed the first deed from Bryantto himself for record. Homan,' when he purchased, had no other notice than as above stated of the deed from Bryant to Barr. FOU1'th. On the 7th day of Qctobel', 1873, William H. Barr conveyed the said land to F. M. Blacki·trustee.to,secur6·the payment of an indebtedness of said Barr to M. D. 'frefren and David Ramsay, which deed of trust was duly recorded on' October 9, 1873. On breach of the conditions' of said deed of trust the trustee duly foreclosed and sold said land under the deed of trust, at which sale John Enders became the purchaser, and received a deed theredUly recorded. it on the same day. for from the trustee, February 7, 1874, ()n. the 8th day of May, 1874, said Enders conveyed said land by deed of quitqJWQ1 to said Homan, which deed was duly recorded May 9, 1874. On .July 8, 1874, said Homan and Wife conveyed said land by deed of trust to A. A. Tomlinson. trustee, to secure the payment of the sum of $1,600 to Mary E. Homan, which said deed of trust was duly recorded July 25, 1874. This deed of trust was foreclollell, andssidTomlinson, as trustee, by deed of December 8, 1877. recorded January 4, 1878, conveyed the land to said Mary E. Homan, and again, .by qilitclaim deed of date December 19,: 1877, recorded 1878, said S.. Homanand wife conveyed to Mary E. Homan saif11and. And by deed of warranty of date October 27, 1885, recorded November 13, 1885, for the consideration of $7,500, said Mary E.Homan conveyed said land to Mary A. Merine, the wife of the defendant, John C. Merine. Fifth. On January 14, 1876, this land was sold under sheriff's deed un· del' judgment against said, Barr to one Frederick Bruns, and by said Bruns cc;mveyed April 23, 1884, to one OharlesE. Kollman, who on November 11, by quitclaim to said Mary.A. Merine. As the judgment on 1885, which the last-named exec.ution sale was based was rendered in the court of a justice' of the peace fora sum In excess of his jul'isdiction, no further note is taken of this branch of the elise. \ .Sixth. The plaintiffs claim title through said William H. Barr under the ,following state of facts found trom the eyldence: On Jannary 5. 1874, one Shaeffer commenced suit by attachment against said William H. Barr in the circuit court of Jackson coilnty, Mo., on certain indebtedness of said Barr to bim then due, which suit passed to jUdgment April 20, 1874, ,under which jUdgment the interest of sait! WllliamH;Ba'rr in said land was sold under e:xecution by the sheriff of· said county on the 22d day of January, 1875, at which sale .one George W. Miller became the purchaser of the same at the of $245. This deed was dUly recbrdedMarch 10, 1875. Said Miller thereafter died, leaVing the.plaintiffs in this action as his testamentary heirs, · wboclalm under the lastwiIland testamAutof said George W: . Seventh. On Febrllary19j 1875, said' George W. Miller instituted suit in equity in the Jackson county circuit court against said Enders' and others, to lIetaside and vacate the deEidand title obtained by Enders .tinder the sale by tblt· trustee, F ·. M. Black"iontheground that he had bought the property with. the means of and for'thebenellt :of'sald W. H. Barr;' and in fact held thereto in trust forilaidBarr. i'.rhe said JohnS. Homan was made defendant :tothis :action, who appeared and made answer thereto, lIetting. up his title ..a8 heretofore stated, and claiming to be the bona ftde
· MILLER .". HEBINEo
and thereupon the action was dismissed as to said Homan, but was furthm' prosecuted to final judgment against said ;mnders and others, in which tl)e title of said Enders was found to be fraudulent, and the same was vested in the petitioner. . Eighth. rile conveyance from Enders to Homan was brought .about in .this way: After Enders bought under the trustee's sale, Homari, becoming advised thereof, applied to Bryant to protect his deed of warranty against said asserted title of Enders, and thereupon Bryant paid to Enders the. consideration for said quitclaim deed made by Enders to Homan, May 8, Barr was seen by Enders during the time of these negotiations, and assented to Enders' making the deed to Homan, and Enders seemed Willing todo respecting the matter a!l Barr desired. Ninth. The facts respecting the execution of the deed of trust by John S. Homan to Tomlinson, trustee, are as follows: Mary E. Homan, the ciary in said deed of trust, was the mother of John S.Homan. Begot from her the sum of $1,600, for .which he executed to herbis note of date ,Tune 7, 1874, the same date as the execution of the deed, which note was duenne year after date. Respecting the origin of this note the evidence is that .John Homan got the money and used it in his mercantile business. He got the money prior to the execution of the deed. Whether on the same day or prior thereto is not stated; and whether or not it was understood and agreed when -he did receive it that he was to give a mortgage on thjlliand. or other security, is not stated. Under the foreclosure sale Mary E. Homan became the purchaser,. and received the trustee's deed,andshortly thereafte.rJohn S. Homan and wife quitclaimed to said Mary E. Homan in satisfaction of said debt. Tenth. Before Mrs. Merine toolt'her deed from Mrs. Homan. Mrs. Homan undertook to quiet her title 8S to the claim of the Miller heirs. the plaintiffs. A.ccording to the best information then obtained by her, these heirs. consisted oUour Miller, A. M. Miller. I.W. }liller, and Millervlf,intermarried with one WiUiam F. Sonnenstein, residing in the state of Ohio, from whom was obtained a deed of qUitclaim for the consideratioli of $125,-:" which was then suppospd to embrace all the Miller heirs. There is no sumcient evidence to sustain the imputation of fraud on the part of obtaining the deed. Ele'venth.The property in question at the time of the Homan was inclosed with a fence·. There were no other upon it. Homan and those claiming under him have at times repaired the fence. and at one time a string of fence was built on one side of it. The of other oVQrt l)cts of ownership uy the Romans up to the time of the Sale .tQ ill'S. Merine .is permission given to one John J. Mastin. an adjoining,landowner. to use the same for pasturing stock. and who at times cut down the weeds thereon. He so contitlued to use the same up to the time of the,pllrchase by Mrs. Merine. From the time of the purchase by Merine they have had open or ,visible possession thereof. No taxes were ever paid on.. this properi;y by William H. Barr, thetaxe& having been paid by those claiming under Hom,an. Matthews &: Meriwether, for plaintiffs. Jefferson Bromlack and Ashley&: Gilbert, for defendant. PHILIPS, J·· (after 8tating the facts as above;) The deed from Bryant to William H. Barr, as between them, vested Bryant's title in Barr; At common la:", Homan took nothing by the grant to him, as BrYl:\nthad nothing then to convey; and Barr, being prior in time, would ·beprior in right. But the registry act of the state interposes and plays a very important part in this contest. The statute in force at the time of
FEDEKAL REPORTER,
vol. 43.
these transactions wItS the same as sections 2418-2420, Rev. St. Mo. 1889·. Section 2418 requires that every instrument of writing conveyany 'real estate or affecting the same, etc., shall be recorded in the offiqe of the of the county in which such real estate is situated. Section 2419 declares that !;lvery such instrument so recorded "shall from the time qffiling the same with the recorder for record impart notice to all personsiof the contents thereof; and all sUbsequent purchasers and mortgagees'shall be deemed in lilw and equity to purchase with notice." Section 2420 declares that"no such instrument in writing shall be valid except between the parties thereto and such as have actual notice thereof, until the"same shall be deposited with the rllcorder for record;" These provisions have wrought radical changes in the relative rights of successive grantees under the same grantor. The contellWm of plaintiffs' counsel is that the statute is to be subjected to that construction which brings it within the rule that the deed first made and' first recorded must have priority. An examination,of the many discussions and decisioll,S, bearing on this mooted question has satisfied Illy mind that it turns upon the phraseology of the statute of the particnlarjurisdiction. The corresponding section to ihat of 2420 of the Miss,buristatute in nearly one-third of the states provides that the unregistered"pollveyahce shall be yoid against a subsequent bona fide be first recorded." (California, Dakota, Idaho,; Mqryland, Michigan, Minnesota, Montana, Nebraska, Nevada, NewYdrk,Oregon, Pennsylvania, Tennessee. Utah, Wisconsin,and Wyoming.) Under such a statute the deed firl:lt put to record takeS precedence.. .Thiswas the"turning point in the conclusion ultimately byfl),e majority inthe elaborately considered case of FaUass v. Pierce, 30. Wis. 443... Chief Justice DIXON, after noting this distinguishing provision of the Wisconsin statute, says: "Witholltthedeed to such a SUbsequent purchaser first upon record, the titleundertbe prior unregistered deed must still be preferred. Under the statutes of the states to which 'reference has been made this is not so. It is enongh thereth"t the SUbsequent purchaser for a valuable consideration and Without actlllllnotice looks upon the record at tire time of purchase and finds n'o conveyance from his grantor then recorded. He is not required to put his deed tirst upon inurder to be protected as against. prior conveyances from his grantor. but only to do so in order to protect hin'lself against subsequent bona purchilsersfor valne from the same grantor; or in the line of recorded conveyances from him. Accordingly, in those states, the courts hold that if A. cOllveys to B., a bona fide purchaser of real estate for value, who fails to put his deed upon record until after A. conveys the same land to C., a second bona fide purchaser for value, and B. then puts his deed on record before C. records his, the title of C. shall nevl'rtheless prevail as between him and B., because it is the fault of the latter that he did not immediatelv record his deed, and so the eqUities are with C. But unupr our statute this cannot be so;.because C. must not only be a SUbsequent bona fide purchaser fOl'.value, but must also have his deed first recorded. Both conditions of the statute must be complied with." Webb on Record Title, § 13, after noting the language of statutes above cited, says:
MILLER tI.
265
"Where the statute does not by such express terms make the rIghts of the subsequent purchaser depend upon priOl'ity of record, such priority, or the want of it, is immaterial; and the courts have almost uniformly held that a subsequent conveyance for valuable consideration taken without notice of a prior unrecorded one prevails over such prior instrument, whpther the latter one be first rl:'corded 01' not, Where, through the neglect of the first grantee to record his deed, a subsequent party has been led to part with a valuable consideration, a race for registry between the two does not afford a proper criterion by whiCH their rights should be determined." Citing in note a large number of authorities supporting the text. Such is clearly the view expressed by the supreme court of the United States in Steele v. Spencer, 1 Pet. 552. The statute of Ohio allowed the grantee six months after execution of deed for recording the same, and, if not so recorded, it should be void as to subsequent bona fide purchasers. The court say, respecting the deed first made: .. The plaintiff's deed not being recOI'ded, the statute avoids it in terms as against all subsequent purchasers for valuable consideration without notice, whetht'r their titles be recorded or not. If the defendants had held under a conveyance executed by Jesse.Spencer in obedience to the decree, their title deed, although not recorded, would bythe terms of the statute prevail against the plaintiff's prior unrecorded deed. .A. deed not Leing recorded avoidsIt as against subsequent, but" not as against prior, purchasers." This is also the view taken of the effect of the Missouri registry act by the state supreme court. In Aubuchon v. Bender, 44 Mo. 564, the
' "At common law there was no obligation to put upon record a conveyance affecting the title of land·. But the duty of registration is now imposed upon the grantee, or the person to whom or for whose use the conveyance or covenant is made; and, as in all other cases where a duty is imposed, he who neglects itshould suffer the consequences. The object of the re'Juirement is to compel an e"hibit of titles to facilitate transfers, uut principally to guard purchasers against imposition;and hence, if the prior deed is not recorded, a snbsequf'nt for good consideration without notice will be protected. This plOtection, always thr\lwll around an purchaser, and to whicb our statute also expressly entitles him. is founded on the broadest equit.}'. He reeeiyes it not because the prior deed is invalid in itself,-the duty of recording is not enforced Oy any such penaltyi-but because justice will not suffer a person who omits a plain duty to set up a claim against one who has been led by that omission to invest his mOlley in what he supposed his vendor had a right to sell." In Maupin v. Emmons, 47 Mo. 306, the same learned judge says: "The statute invalidating the original unrecorded deed is held to operate in favor of a bona fide purchaser 011 sheriffs' as well as private sales, provided the original' deed be not recorded until after the sale." And in Munson v.. Ensor, 94 Mo. 509, 7 S. W. Rep. 108, the court, inter alia, say:·. ' "Hence it was held In Fox v. Hall, 74 Mo. 315, that a purchaser by qUitdeed of claim deed for value acqu·ired' the title as against a prior which he did.not have actual notice." From which it is clear that the supreme court of the state treats the !lubsequent purchaser as the holder of the title against the prior unre-
;266 oOOrded deedl,nnd this.for itheobvious that section 2420 of the statutedeelarefjin that :the: unrecorded deed shall be invalid ,as a So bseq\ient' frOm the same grantor who buys witlioutactual'iiQtice;' " ' : ".' '.' . therefore, is, 9id Homan have actual notice. of :Bal'r's deed when he purchased? The only notice which Rolllsn,had.from Barr was that Bryant had attempted to make him a deed forthelnnd, bur the "deed executed did not contain the right land, and that the same was destroyed, and theii going to Bryant, the grantor, the, assurance' of. Barr was accepted, and, Bryant thereupon made a sec,Qnd df:lBd' to Horr.an. On this stateof.faots:Barr was a mere equitable 9wner, under ;Bl'yant.He,stood in the position of a purchaser under who,hnving .periformed the contract on his part, was entitled to a specific performance by the vendor;,: By the course he, took, howbe ,put.bimllelf precisely in the· attitude quite common ,in renl-esJate ;transttlltionsl-ofapurchaser under a bargaincontract,who, after ,be·becomes entitled:to'lt'lleed froml1is sells his right' t6 a second purchaser; and, to avoid the trouble imd ,e11:pense of a multiplicity his, veM9r .tt>, execute, ,directly to the, last pur:chaser. 13y sU.Ch rn.utual' understanding'and .arrapgement aU the parties thereto are concluded; ,the legal title would vest in the, last purchaser. 'rhednJy in point of fact that and the case under 'sfderation"isthat,itdeed'lr8:<l 'been made to the first pllrch'aser, which fact was concealed by the first purchaser, by reason of whose assurances that the: leglil'titl6had ' Iiot pall,sed from his vendor the WaS induced to ,the )at,{erwas to acpeptlh, an.g. to, the }nterwedlate veol,ior .the purQhase money. The J,'egistry .aptkere ititerposes to llccomplish, the,. ends of equity, and declaol'es that, first deed ,W8S not filed for reeord whElD the :]ast pUl'chaser parted with his 1110ney, deed shall be invalid 11.9 to him; 33art 'himself 'would be, clearly estopped' from asserting title' as against ,him. "lIe -Ivho by hisJanguage or ppndppt which, he, would not not, subject suchpersop to loss or injury,' disappointing theexpectations' upon which heaated. Such a change of position bidden;ii iIt, h:tvolves '[raud andfalsehood,and the law abhors both. * * * There is no rule more necessary to enforce good faith than , that which. (lompels a, 'person to abstain from asserting claims which he has indl'lced.others to suppose he would not relyupoIi." Dickerson v. -<7olgro1!6;,100 This prinCipleis aptlyexpress'ed by Judge WAGNER in (!lddtlin, 39 Md.' 250: ' , ., . ,hfl:Wheie by his'aets another·to believe in the'e:dstence ot a certain state of things. and induces him to act on that belief. so as r. hiS" ow11, OQ11d" W.i,H ,con.cl u. de, d from aveJ;J;ing anyaltering.his , The defense of equitable estoppel 'is"available ill'the action of .. ,l)jck'er.son i v. Oolgrove, ;supra;.: 5&2·. " ' ., .:U, RJloostor,' the purchaseiat. execUtian sale' against·Barr, in tp.
,P,
.' '
IID,LER , "o1IERINE.
261·
any better situation than Barr himself? Iho; what becomesoftheconstruction given to the state recording act? That statute declares Barr's , deed invalid as against Homan, under whom defendant claims. As"to the subsequentbonaftde purchaser, that deed was a dead letter. If so, how can a subsequent creditor by the mere touch of an execution revitalize it? The execution creditor comes afterwards to take only what his debtor has at the time of the seizure to satisfy his debt, and the chaser takes only what the debtor had·. Long prior to the judgment and execution sale the deed to Homan had been put on record, and the prior unrecorded deed to Barr, by operation of law, was invalid as to his subsequent deed.. By the Sri me statute the recorded deed of Homan, coming .from the same common grantor, Bryant, was notice to such subsequent purchaser of its contents. Digman v. McO<JU'WT1/" 47 Mo. 374. The recorded deed, although recorded subsequent to Bryant's deed to Barr, showed that before Barr's deed was recorded Homan had become the purchaser of this land. And the logic of the statute would seem to be that such subsequent purchaser under Barr would have to show that Homan had notice of the existence of the deed, or that Barr had the superior. equity. The state supreme court in Dat"ia v. Owenby, 14 Mo. 176, observes of the statute: "The obvious meaning of the whole section is that filing a deed for record imparfs :noUce to all persons wbo should sUbsequently become interested in the title, whether as purchasers or mortgagees." Independent of the statute, there is both reason and authority fur that estoppels in pai8, as much so· as estoppels of record, bind privies. .The general rule is that the title of the purchaser is ouly that of the defendant under executiGn. Wood v. Seely, 32 N. Y. 116. In Parker v. Crittenden, 37 Conn.'152, the court say: "The .defendjlnts claim'undsl'and through Barrows by ilttachmentof his interest in the property, made 'after the plaintiffs' purchase. The plaintiffs, therefore. in estate with Ba;rrows,are boul\d by the same estoppel. avail himself,of the and thellefendant. being a bona fide toppel. ,,' . . , So in Bank v. Bowen, 80 Ill. 541, it waS held that where. the party purchased notes secured by deed of trust ofa bank whose officers, were a rel.ease of a prior deed of trust and payment, of estopped the debt against another bank loaning mqney on the faith of the validity of the. such purchaser in equity occupied no better Anc;l the Supreme court, position thl;ln tbl:l pank of whom he in Dickerson v. seem to recognize this proposition ,. as the plaintiffs. in. that case were grantees, by .several mesne GOl1veyalices from the party who!!e :letter disclaimin/Z title created the estoppel in pais. In McBane v. ,wilBOn, 8· Rep. 734, the court l3ays: "Is George \Vilson. the sheriff's vendee, in. ,any better position? :What of the jUQgment creditor. upon whoEle execution rights h!UI ,he superior he bought; and defendant in the writ whose title he .The title which M'etzger bad when.tbe lien of Bauw's jUdgment attached was at the besta'condltionaIoneliable tolJeswellt away unless the acts Were , ,\Yitb.,", '." ., . ,'\
268
FEDEaAl. REPORTEB,
·
Be this as it may, in view of the state statute respecting the registry Qf deeds my cQnclusionis that plaintiffs' ancestor, who was a mere speculator at the execution sale against Barr,did not acquire a better title and right to this land than the.defendant. In respect to the title of defendant through the deed of trust from Barr to Black, trustee, it is to be observed, first, that beyond controversy the mortgagee took as an innocent purchaser for value as against Barr and his creditors. As the subsequent seizure under attachment was only of the equity of redemption of Barr it was subject to the right of foreclosure by the mortgagee. The sale by the trustee vested the title in the purchaser as against Barr and the attaching creditor. FUnklwuser v. La,y, 18 Mo. 458. ,The contention of plaintiff is that Enders bought the property in for the use and benefit of Barr, to which equitable interest of B:;trr thejndgment lien of Shaeffer, the attaching, creditor, of date April" 201,1874, immediately attached. As Enders, however, conveyed to John S. H.oman on May 8, 1874, for a valuable consideration, although by qpitclaim deed I Homan, under the Missouri recording act, took as an innocent purchaser, unless it appears he had actual knowledge orthe secret trust in Javor of Barr. : Munson Y. Ensor, 94 Mo. 504, 7 S. W. Rep. 108. The only notice John S. Homan had is to be inferred from the filet that Barr. w,as consenting to the making of the quitclaim deed, and that Enders seemed to be willing toas8ent to what Barr desired in the premises. If it is to be conceded that this is a circumstance from which a court orjury might properly infer that Barr was the real party in interest, the question still remains to be answered, how is Mrs. Merine affected thereby? Did she take with .notice thereof? On July 3, 1874; after he received the qeed from Enders, John S. Homan mortgaged this property to Mary E. Homan, the immediate vendor of Mrs. Merine. The contention at this point by plaintiffs is that this mortgage was given to secure an antecedent debt. The only evidence of this fact is the statement by John Homan, in his deposition' on cross-examination, that he thought the money he got from his mother secured by the deed of trust was advanced him before the mortgage was' executed. Whether he by this to say that when he borrowed the money this security was agreed upon, or merely that the money was harrowed before the deed in pOirit of time was executed, is by no means clear. But suppose .this p6iritbe conceded to plaintiffs, there wns nothing on the face of the record: 'to indicate that the Tomlinson deed of trust was given to secure an antecedent debt. On the contrary, the note expressed in the face of the trust instrument bore the same date as the deed. So, when Mrs. Merine'bought from Mrs. Homan, the record showed a clean transmission of whatever title or interest William H. Barr had through the trust-deed of Black on to Mary E. Homan. There is no evidence that Mrs. Merinehad any notice of the imputed infirmity in the antecedent trimsactitmssuch as would' affect her title.' . Even if John Homan had notice fqrBar'r, there is no proof that Mary Homan liad' this that knowledge.! parinotaccept as sound law or ethi<ls the suggestion .of the learned cOUllsel that the 'court ought to assume that the knowledge which
MILLER ". MBRINE.
269
the son had the mother also had, and conclude fraud from mere suspicion. We cannot better express our view of this matter than to quote from Funkhouser v. Lay, supra, 462: "Fraud, it is sometimes said, may be inferred. But this expression must not be construed to warrant the mere assumption of a fact. This inference can only be drawn legitimately from some tangible, responsible fact in proof. It is a deduction which an intelligent mind may honestly make from the incidents and circumstances surrounding the case, and which appear to be inconsistent with the good faith and rectitude of the actor. If, however, the conduct of the party, and the transaction under consideration, reasonably consist as well witb integrity and fair dealing, the law refers the act to tbe better motive." Whether Mrs. Merine with notice bought under Mrs. Homan, who was without notice, or whether she bought without notice under Mrs. Homan who had notice, in either event flhe would be protected. Funkhouser v. Lay,8upra. The suit of Miller·v. Barr and Ender8 was dismissed as to John Homan, and Mary E. Homan was never IIlade a party thereto. They are therefore not bound by any decree rendered therein. It affected no interest or right acquired prior thereto and independent thereof. Dunklin Co. v. Clark, 51 Mo. 62; Jackman v. Robin8on, 64 Mo. 293; Hawes, Parties, § 26; Mftllow v. Hinde, 12 Wheat. 193-199j Hookv. Payne, 14 Wall. 252257; Noyes v. Hall, 97 U. S. 34-39. In view of the conclusion already reached, it is not deemed essential to say more of the effect of the quitclaim deed made by part of the Miller heirs, co-plaintiffs, to Homan than that I find from· the evidence against plaintiffs' contention that the deed was fraudulently obtained. The only semblance of fraud in this matter is the obtaining by these heirs the money of Homan, which he believed was to quiet his title as to all these heirs. My assent cannot be given to the proposition, asserted by counsel, that by setting up the acquisition of the title of plaintiffs through the quitclaim deed the defendant is estopped from denying title in plaintiffs, or from showing'title from other source. He does not sustain the relation of a tenant to plaintiffs. He does not hold his possession under contract of purchase from or by contract with plaintiffs. He had the possession independent of plaintiffs, at least under color of title from others. Even as a vendee under plaintiffs he could deny his vendor's title, and set up as many titles as he pleases. Cumming8 v. PoweU, 97 Mo. 536, 10 S. W. Rep. 819. His effort to buy his peace, and remove any conceivable cloud from his title, upon no recognizable rule of law or justice should preclude him from supplementing the effort by proof of a superior title.· In defending his possession against the attack of plaintiffs there is no legal inconsistency in saying: "I have the paramount title, and, in addition thereto, whatever title or claim you have you have quitclaimed to me." It is not deemed important to discufls the issue of the statute of limitation. My conclusion from the whole case is that the merits and the law are with the defendant. JUdgment accordingly.
J'EDEnAL · '
,
."
.., .
,vol. 4.3. i.
:.;.:
(Orcuit court, D. , , '
July 14,
d!!!lddescribed the llill,d conveY"!d as bes-inning ata certain rock, Bnd running ",' thence 'one mile east, on!! 'mile north, one mile west, and one mile south, to place of :': beginning;' and alsO' stated that it was 'the land set off toa certain IndiBn under a: ;t,reaty"with,the government. The Indian had previously selected his land as "a rlloC, ,tQn,,e mile sq,uare,' t,h,e exact bound,',ariell of which may be defined when the sur" " 6yllare Jl1ade.» After the deed was given, the Indian's land was located and pat)" so as to include 640 acres not in 'the fOrm of a square, no part of which lay within the boundaries named in said deed. Held, that the deed. being for a specifio tract of land, qQuld not be construed to convey the grantor's interest in the land actUally paten\eato the Indian.
't'
·'.cAt l,aw., . This, action having been brought to, trial, before the conrt without a jOly, which WAS waived by the parties by a stipulation in writing duly filed with the 'clerk, the following: fact&:are found by the court: , (1) That the treaty made and concluded on the 30th day of SeptemA."D. 1854, between the United States and the Chippewa Indians, of Lake:Superior and the Mississippi, whereby said Indians ceded to the 'United: Sta-tes certain ·tetrltory lying adjacent to the' headwaters of Lake Superlor,conta.ined the fullowing provisions, v-iz.: "And being desirous toprovidefor.somt' of his cOnnections, who have ren· dered, his peopleimp'ortantservices, it Is agreed that Uhief Buffido mllY select of laDQlat. sucbplace in as he may l!lee fit, which shall j>e that purpose, and conveyed by tbe United States such person or persons as he mill direct. " . (2) That.snid treaty wasratified,:pursuantto a:r:esolution of the United Sta.tessenatepassed on the .lOth day Of January, :1855, by the, president of the UnitedStatesj on the 29th day of January, 1855. (3) That. said ChieLBuffalo, pursuant to ,said provision of said ,and,on the day of Ithedatethereof,. to-wit, September 30, 1854, Qy an instrument of wriJiing'executedbyhim and filed in the office of the ;Un:itedlSta.tes: of Indian affairs at Washington, C., se:lected be conveyed thereunder by the 'United States, and ,the; persons ,to whom it was to be conveyed, as follows, viz., ai'terreciting the foregoing provisioIl' oHhe treaty: a t.ractof.land one. mile square, the,exact boundary of whicb mN', b,e: Wl'\en,the,lll1rveys are made, lying on the wtllltshore of I;t. :,' ,r '. ':. .', .'.'.;!
be the same according to thl! aboveto or Benjamin G., AJ'lDlltrong, my adtlptedson: toJ.Mlltthew May..\:.1 way-gwon/my nephew ;to Joseph May-u waygwon and: Ain'lluine l!Ions,-otie'quarter section to each." Josepp"an4 .pnder ,of Sepexecut¢qand deliver,ed to said an instrument assigning to him their 'tlght,title, and interest under sald appointment and selection of Chief Buffalo.
L?,uls
polnt,;li'tidi di.re<it