63 W. Va. 685 | W. Va. | 1908
' A tract of 2302 acres of mountain land was conveyed by Holt and Mathews to McGraw, November 10, 1897, the deed for which was recorded Pebruaiy 9, 1898. The grantors covenanted to warrant generally the title, and that they had a right to convey. The deed contains this clause: “But the pine & hemlock timber -which are or were on this land are
The object of this suit is best explained by a quotation from plaintiff’s bill, wherein it is alleged that the plaintiff “is the owner of a tract of land situated * * * * on the waters of Knapp’s Creek containg 2302 acres known as the Henry Harper Land, subject to certain interests in the hemlock and white pine timber on said tract claimed by the above named defendants as hereinafter set forth, but that it is the undisputed owner of an undivided eight thirty-sixths interest in said hemlock and white pine timber; the defendants Ethel Curry, Bertie Curry, Elmer Curry and Georgia Curry are the.owners of one thirty-sixth interest in said timber each; the St. Lawrence Boom &Manu
We have observed that, by this suit, plaintiff claims title to eight thirty-sixths of said pine and hemlock timber, calls for partition thereof, and prays that waste by its alleged co-tenant be enjoined. Injunction was awarded plaintiff, restraining and enjoining the St. Lawrence Company and its employes from cutting down and destroying the hemlock timber and other trees, and from committing waste generally upon said tract of 2302, acres. In vacation, upon notice of motion to dissolve, the cause was heard upon such motion made, demurrer interposed to plaintiff’s bill, answers and exceptions thereto endorsed, depositions taken by plaintiff, and motions, after due notice, in relation to additional injunction bond as well as bond to be given by defendant to perform and satisfy any decree. So much of the decree then entered, and now complained of, as is material in the present consideration of the cause, is: “That the defendant the St. Lawrence Boom & Mfg. Co., and G. W. Huntley & Son, be restrained and enjoined from cutting any more standing timber;” and “the Court doth overrule the defendants demurrer and doth overrule the defendants ■ motion to dissolve said injunction heretofore awarded without condition.”
We need but briefly refer to the answers aforesaid. It suffices to say that there is absolute denial of title in plaintiff to any of the said pine and hemlock timber; and these answers affirm that the St. Lawrence Company owns all of
There is a single question for our consideration, as we view it. Was McGraw a purchaser of the interests in the pine and hemlock timber now claimed by plaintiff, without notice of the rights of those under whom defendant claims? The case turns solely on this question of notice. The depositions filed by plaintiff relate to the existence of the alleged waste, and do not pertain to notice. All matters other than those pertaining to the above question are not now controlling, and shall be eliminated. Plaintiff’s title must come from McGraw, if any it has. If his title was not good, as against the rights of defendant, plaintiff’s clearly cannot be. It is insisted that the bill is insufficient, and that the demurrer should have been sustained because the recital in the
It is argued for plaintiff that the clause in the original deed to McGraw, quoted in the beginning hereof, has the effect to convey the pine and hemlock timber. Not for a moment can we give ear to such forced construction. It would be wholly inconsistant with the fact, shown by plaintiff’s bill, that Holt and Mathews, prior to this deed for the land to McGraw, had made deed for the pine and hemlock to
But it is contended that McGraw obtained good title to the eight thirty-sixths interest in this timber by the two deeds-from the adult McCarty heirs to him, in which there were no-reservations. These deeds being acquired subsequent to his. knowledge of said clause in the former deed to him, could he-so acquire such title as against such equitable owner as defendant is shown to be? True, a reference to the records, showed him no conveyance of the McCarty interest. But, his own deed from Holt and Mathews was notice to him that the pine and hemlock were long ago sold. Holt and Mathews would not convey it to him for that reason. That deed told him that not simply the interest of Holt and Mathews-were sold, but that the pine and'hemlock timber “on this, land” were sold. The words “on this land” would include the McCarty interests. What was the effect of such notice?:
Plainly, as to the last deed to McGraw, aforesaid, in securing the McCarty interest in the land, he could not have taken good title to the pine and hemlock as against defendant; for, long before its date, he had received deed for the intersts of the infant heirs, as we have seen, in which it was expressly stated that McCarty, in his lifetime, had “sold and conveyed” the pine and hemlock. This was direct in its terms, related to the identical land, and was the most emphatic notice. When the first deed was made to McGraw in getting in the ■outstanding McCarty interest, it is true that he had only the recital of the deed of Holt and Mathews to him, saying that the pine and hemlock were not conveyed therein, as they had long before been sold, not telling to whom, yet amply sufficient to put him on inquiry as to the true facts, which are now disclosed by the answers herein, without replication standing as true in relation to adverse ownership of the pine and hemlock at the time it is alleged McGraw obtained title thereto. He was a purchaser, though for valuable consideration, yet with notice of another’s equity.
The law, widely recognized, and controlling herein, is most
Since it is apparent that McGraw must be considered a purchaser with notice of the equitable rights of those under whom the St. Lawrence Company holds, and since plaintiff could acquire no title as against the St. Lawrence Comp any that McGraw did not legally acquire as against it, it is readily to be observed that the refusal to dissolve the injunction awarded against defendant showing superior equitable rights to any of plaintiff, and decreeing continuance of such injunction, is clearly erroneous. In these particulars, the decree is, therefore, reversed, the injunction dissolved, and the cause remanded to be further proceeded in according to the principles herein announced and rules governing courts of equity.
Beversed. Bemamded.