Rozell v. Chicago Mill & Lumber Co.

Riddick, J., (after stating the facts.) This is an appeal from a judgment 'sustaining a demurrer to a complaint and dismissing the action for want of equity. The facts stated in the complaint are set out in the statement of facts, and show, among other things, that in the year 1855 one Jeptha Fowlkes sold certain land to the ancestor of plaintiffs. At that time the land belonged to the State, and Fowlkes had no right to it. But in 1856 he purchased it from the State, and paid for it, and received certificates of entry, which entitled him to a patent when the title of the State to the land was confirmed by the United States. By this purchase from the State Fowlkes acquired an equitable estate in the land, which inured to the benefit of his grantee, Rozell, under the statute which provides that when one conveys land by deed purporting to convey a fee simple estate, and does not own the land at the time, but afterwards acquires the title, such after-acquired title, whether legal or equitable, passes at once to his grantee. Kirby’s Digest, § 734. Afterwards when, through mistake or fraud, the legal title was conveyed by the State to Chatfield, Rozell had a right to go into a court of equity and have this patent set aside, and the title vested in him, as against any one except a bona fide purchaser for value. Coleman v. Hill, 44 Ark. 452; Chowning v. Stanfield, 49 Ark. 87. The complaint of the heirs 'of Rozell in our opinion makes out a clear case for relief against all except bona fide purchasers and other claimants of the land who have acquired rights through the laches of the plaintiffs. But there is nothing in the complaint to show that these defendants are bona fide purchasers for value. The complaint, it is true, does not allege that they had notice,- but this court has held that a party claiming protection as a bona fide purchaser or mortgagee from the fraudulent grantee of real- estate must deny- notice of the fraud, although notice thereof is .not charged in the plaintiffs’ bill. Miller v. Fraley, 21 Ark. 22. The failure of the complaint to allege notice in a case of this kind does not make the complaint bad, for the burden is on the defendants to show that they were b'ona fide purchasers for value. Nor can we say from the complaint alone that the circumstances are such that the court should refuse plaintiff relief on account of their delay in bringing the action. If the land is wild and unoccupied, and the delay has not prejudiced the rights of the defendants, they have no reason to object on that ground. We agree with the contention of the defendants that the record of the deed from Fowlkes -to Rozell was not notice to the defendants who purchased from Chatfield. And probably the same thing may be said of Chatfield’s purchase of the certificate of entry. The deed from Fowlkes to Rozell was-not in the line of defendants’ title, and they were not required to look for it. Turman v. Sanford, 69 Ark. 95. In the absence of any actual notice, or anything to put them upon inquiry, they could safely rely upon the presumption that the officers of the State did their duty and issued the patent -to the person entitled to receive it. Boynton v. Haggart, 120 Fed. 819; United States v. California & Oregon Land Co., 148 U. S. 31. But, as before stated, we are not able to say from the complaint alone that they did not have notice of this Rozell title. If they had notice, defendants were not bona fide purchasers. If they were bona fide purchasers, they can set that up as a defense, and also any other facts that would show it to be inequitable to grant the relief prayed for. On the whole case,, we are of the opinion that the complaint states a cause of action, and that the demurrer should have been overruled. For this reason the judgment is reversed, and the cause remanded, with an order to overrule the demurrer, with leave for defendants to file an answer.