55 Ind. App. 365 | Ind. Ct. App. | 1913
Lead Opinion
Appellee recovered a judgment in the Knox Circuit Court quieting his title as against appellant to a certain tract of land in Knox County, Indiana. The only error assigned on appeal is the action of the trial court in overruling appellant’s motion for a new trial.
For some time prior to the year 1904, Henry L. Wheatley was the owner of the real estate in controversy and was in possession of the same. On February 11, 1907, appellee purchased the land at a sale for taxes assessed against Henry L. Wheatley for the year 1906 and previous years, and received a certificate therefor. On February 12, 1909, the auditor of Knox County, upon presentation of this certificate, executed and delivered to appellee a tax deed, upon which appellee bases his claim of title to the land involved in this suit. At the time this action was brought, appellant was in possession of the land, claiming title thereto as heir of her father, Henry C. Mooney and by virtue of an unrecorded deed executed to him by the trustee in the bankruptcy proceeding of Henry L. Wheatley.
Other questions presented by this appeal are not considered for the reason that they will not probably arise upon another trial. The judgment is reversed with directions to grant a new trial.
Rehearing
On Petition for Rehearing.
Appellee recovered a judgment against appellant quieting his title to certain lands. The original opinion holds that the verdict is not sustained by the evidence. To sustain his complaint, appellee traced the title from the government to a man named Henry L. Wheatley. He then introduced a tax deed for the land in question from the auditor of Knox County to himself, based upon a tax sale of the land as the property of Hewy L. Wheatley. He also
We think that the doctrine last announced is more consonant with reason and that it is supported by the weight of authority. The Supreme Court of this State has held that the grantee in a quitclaim deed may be entitled to the protection afforded a bona fide purchaser. Smith v. McClain (1896), 146 Ind. 77, 45 N. E. 41. In the opinion in this case, the court at page 84 says: “While there is some conflict in the authorities upon this question, we think that the correct doctrine under the recording acts is that, one may become a bona fide purchaser under a quitclaim deed, the same as under any other form of conveyance. ’ ’
The fact alone that appellee accepted a quitclaim deed does not, in our opinion, conclusively show that he was not a good faith purchaser for value and he was not thereby precluded from showing, if he could, that the consideration named in the deed and actually paid was the fair cash value of the land conveyed, and that at the time the deed was executed, he had no knowledge of any unrecorded deed or other outstanding equities affecting the title. The burden was upon appellee to establish such facts if he sought to bring himself within the protection of the recording statute providing that prior unrecorded conveyances shall be void as against any subsequent purchaser in good faith and for a valuable consideration. §3962 Burns 1908, §2931 E. S. 1881.
We have examined the other questions presented by the petition for rehearing and we find no reason to change our views as expressed in the original opinion.
Petition overruled.
Note.—Reported in 100 N. E. 517; 102 N. E. 380. As to effect of quitclaim deed, see 105 Am. St. 854. As to whether holder under quitclaim is bona fide purchaser, see 1 Am. St. 247. As to the effect' of a quitclaim deed on after-acquired title, see 35 L. R. A. (N. S.) 1182. As to what interests and rights of the grantor pass by a quitclaim deed, see Ann. Cas. 1913 C 363. See, also, under (1) 37 Cyc. 1445; (2) 37 Cyc. 1052; (3) 37 Cyc. 1465; (4) 3 Cyc. 377; (5) 39 Cyc. 1696; (6) 39 Cyc. 1780; (7) 13 Cyc. 653; (8) 39 Cyc. 1693; (9) 39 Cyc. 1784.