Taggart v. Warner

Cassoday, J. May 1, 1861, Walker obtained title by warranty deed, without any reservation therein, from Gr. W. Taggart, Sr., father of the plaintiff, of both pieces of land designated in the foregoing statement, respectively, as “A” and “B;” and continued to hold the same until he conveyed A by warranty deed to George W. Taggart, Jr., November 11, 1866. April 1, 1868, and while Walker was still the owner of B, George W. Taggart, Jr., by warranty deed, without any reservation therein, conveyed Ato Stray, and took back from him a writing, without any seal, witness, or acknowledgment, reciting such purchase and in effect guarantying “ to him a free passage across said ” A to B. April 8, 1875, Stray and wife, by warranty deed without any reservation therein, conveyed A to the defendant Warner. It is undisputed that Warner had no knowledge or information respecting any such written guaranty until years after he had obtained his deed. It is expressly conceded that such written guaranty cannot be regarded as an agreement running with the land and binding upon the defendants. The extent of the contention seems to be that it tends to prove the existence of such free passage prior to Warner’s purchase, and that he made such purchase with notice of its existence, and hence 5 took his title subject to such free passage as a way of necessity to the owner of B. But the mere existence of a track from B across A to the public highway gave to the owner of B no legal or equitable right to such continued free passage, much less can' it be regarded as notice to Warner, as such purchaser, of any such outstanding right. Besides, it is undisputed that, at the time Warner purchased. Stray told him, in effect, that the plaintiff had been in the habit of crossing his land on that track, but that he had no right to go across there at all. Warner was a tona fide purchaser for value, and took title from Stray by warranty deed without reservation, which was duly recorded; and hence, under the statute (sec. 2241, R. S.), could hold title, even against a prior unrecorded conveyance, and much more as against some vague parol understanding or user of the character here indicated. Besides, the findings mentioned in the foregoing statement are sustained by the evidence, and they preclude any right of way of necessity in the plaintiff. By the Court.— The judgment of the circuit court is affirmed.