Storthz v. Chapline

Hughes, J., (after stating the facts.) The main questions in this case are: (!) Did the appellee, Eeuben E. Murray, have title to the whole of the south half of the southeast quarter of the south-, east quarter of section 24, in township 1 north, range twelve (12) west, which he claims to have bought from his father? (2) Is Eeuben E. Murray estopped in any way from claiming title against the appellant, Storthz? We think the testimony is sufficient to show that Eeuben E. Murray bought from his father the said south half of the southeast of the southeast of section 24, township 1 north, range 12 west. Storthz, the appellant, claims that he is an innocent .purchaser, and that he had no notice of the claim of Eeuben E. Murray to the whole of the south half of the southeast quarter of the southeast quarter of section 24, township 1 north, range 12 west, when he bought the interest he claims in the entire southeast quarter of 24, and says that Eeuben encouraged him to buy, and told him the heirs each had only one-eighth interest in the southeast quarter of 24. This Eeuben in his testimony denies. Eeuben E. Murray relies upon his purchase fr.om his father and seven years’ adverse possession thereafter. He testifies, that in the spring of 1884 a cross fence was built by him, separating the east half of the southeast quarter of 24, township 1 north, range 12 west, from the north half of said southeast quarter of southeast quarter of 24; that he had possession and charge of the whole 40 at that time; that a fellow by the name of Joe Dike, a tenant, lived on the south half of east half of southeast quarter of 24 at that time; that he lived there five or six years, and paid him rent. “There are 10 or 12 acres that had been, in cultivation. Part of it I used as a pasture. On my part there are about 7 or 8 acres still in cultivation. The part not in cultivation was under fence.” Says that he has claimed the south half' of east 40 since he bought it against everybody; that it was under fence at the time the appellant bought. “My possession has been continuous, and never interrupted in any shape. The whole of east 40 was put under fence in winter of 1875 and spring of 1876.” Says that he took possession December, 1879, and remained there till 1887; says that he had open, notorious and exclusive possession of this land during all this time. Opinion delivered November 22, 1902. So it seems that at the time the appellant, Storthz, bought the appellee was in possession, through his tenant, Dike, who continued in possession five or six years thereafter, after the cross-fence was built in .1884. It therefore appears from the evidence that the appellant had notice of Reuben E. Murray’s claim when he bought, as the possession of Murray through his tenant was sufficient to charge him with notice. He was bound to take notice. The appellant’s claim that he was an innocent purchaser is not maintained by the proof, and upon the whole case the decree is affirmed. There is not proof to sustain, the exceptions to the report of the commissioners, which was rightly approved.