Smith Et Ux. v. Phillips

Opinion of the court by McAtbe, J.: It is admitted, as a general rule, that actual possessin of real estate is prima, facte evidence fef 'Ownership or of some claim to the property; but ifc is contended by the defendant in error that possession is not notice of any claim or evidence of title, as against the deed of the party in possession. The rule relied upon is stated* in McNeil v. Jordan, 28 Kans. 7, as follows: . “While it is- the general rule that open, notorious-, unequivocal and -exclusive possession of real estate, under an apparent claim of ownership, is notice to the world-of whatever claim the p-osses-ser asserts, whether such claim can be legal or equitable in its nature, yet this rule does not apply to a vender remaining in possession, so- as to require a purchaser from his* grantee to inquire whether he has- reserved any interest in the *303 land conveyed. Such grantor, though in actual possession, is deemed to- hold the same for a temporary purpose, without claim of right, and merely as a tenant at sufferance of the grantee.” The rule confines itself originally to the proposition that when a loss has happened which must fall upon one of two innocent persons, it shall be borne by him who i® the occasion of the loss, even without any possible fault committed by him, and that if the injury results to an innocent third person, the act, or mistake, or negligence, which has been the cause of it, must fall upon him who' has committed the mistake, and not upon such innocent third person, and that if the deed is made which is effectual to convey the estate, it will be final and effective as aganist the grantor, if the land i~ subsequently purchased by an innnocent t'Yrd person, w7ho is a Iona fide purchaser. In the case under consideration, the evidence shows that on the 33st day of October, 1894. tbe sonto portion, in white, of lot 3, was sold to H. E. -Smith for the sum of $1,000; that, thereafter he built a house upon it. fenced it, built stables, broke it up and planted shade trees, made a home of it, and has been livnig there, and was living there at the time of the litigation. One thousand dollars having been paid for the land in 1894, and these improvements having been added, Phillips thereafter took a deed from Evans therefor, the co-nsid-eiation of which is stated to be $250. This sum is- one-fourth of the value estimated when H. E. Smith purchased the property in the previous year, and no account at all is token of such added value as accrued to the property from the improvements made by Smith in *304 building his house, stables, fencing and the planting of trees on the land. The only right which Phillips claims as against the Smiths arises from their conveyance of the land- by the erroneous deed, in which the description of the land begins, “at a point 2,404 feet south of ihe northwest corner section 3 ” that is, on a quarter section of land belonging to one McCormick, and purports to convey 236 feet from north to south of McCormick’s claim at that point, a portion of land in which the Smiths had no particle of interest. The description purports to begin, “at a certain elm tree standing six feet east of the west line of the said-section.” The evidence shows thar. there was no elm tree there, but -on the contrary, that point was open prairie. The deed from Evans to Phillips includes, not :only the south portion of -lot 3, for which the evidence snows that H. E. Smith had paid $1,00-0, but also the whole of lot 1, being only a part, less than a half, of which Johanna- Smith had in the previous year paid to Evans $350. The gross disparity in the consideration ’which the face of the deed shows that Evans offered and sold a portion of this property for, to Phillips, is ■sufficient to upset any theory that Phillips was a dona fide purchaser. It is, moreover, a well known principle In respect to the methods of establishing the boundaries -of an estate, that where there is a conflict between the natural monuments which are referred to in the description, and the •course and distances which -are referred to in the description, that the natural monuments must govern., and that this proposition is supported to the extent that *305 monuments must control courses, and distances, even if it causes a wide departure from them. (3d Washburne on Real Property, 407; Wells v. Company, 47 New Hamp. 235-261.) The evidence showed that an elm tree was standing •six feet west of the line of section 3, at the northwest corner of the southwest quarter of said section. In making the conveyance to Phillips, Evans was engaged in perpetrating a fraud upon the Smiths. The disregard which Phillips showed of the. fact that the deed from Smith and wife to Evans undertook to- convey a considerable part of McCormick’s claim, to. which the record showed they had no claim whatever, and the enormous disproportion between the- consideration named in the deed from Eivans :to Phillips, and the real value of the property, as shown in the evidence, which it is manifest was many times in excess of the consideration of $250 named in the Phillips deed, we think destroyed any presumption that Phillips was an innocent <sv ,l)ona fide purchaser. The judgment of the court will, therefore, be reversed, and the case remanded for further proceedings. All of the Justices concurring.