Logan v. Neill

[467] Opinion, Mr. Justice Sterrett : Trial by jury was waived, and tbe case submitted to tbe court under tbe provisions of the act of April 22,1874. Plaintiff below claimed under two sales for taxes, one of which was evidenced by treasurer’s deed June 13, 1864, to J. A. Neill, who by deed March 20, 1885, recorded April 14, 1885, conveyed to his brother S. T. Neill, plaintiff below. The treasurer’s deed was not recorded until May 29, 1885. The other sale was evidenced by treasurer’s deed, June 11, 1866, to Ozro Nesmith, who on March 16, 1885, executed a quit-claim deed to J. A. Neill, who four days thereafter conveyed to his said brother. As to the last-mentioned title, however, the court found that an assignment, dated June 3, 1868, by Ozro Nesmith to Uriah G. Hoyt, the lessor of defendant below, was intended by the parties as a redemption from the tax sale of June 11, 1866, and that such was its legal effect. That finding virtually eliminates from the case the second tax sale, and restricts the claim of plaintiff below to the first-.mentioned tax title. Defendant relied mainly on the first tax sale, and in support of his title thereunder gave in evidence the general warranty deed of Benjamin Nesmith and wife, December 22, 1864, recorded June 23,1865, to his landlord Uriah G. Hoyt. Also, deed of assignment, J. A. Neill to Benjamin Nesmith, June 2, 1866, indorsed on the first-mentioned treasurer’s deed to said Neill, recorded May 29, 1885. The court rightly held that the treasurer’s sale and deed of June 13, 1864, vested an inchoate title in J. A. Neill, which, by virtue of his assignment aforesaid, passed to Benjamin Nesmith, and by expiration of the time for redemption became a perfect title; that the title thus acquired by Nesmith inured to the use and benefit of Hoyt, his heirs and assigns, by reason of the general warranty contained in the deed of Nesmith and wife to him. The learned judge found that the assignment of J. A. Neill indorsed on the first treasurer’s deed was duly executed, and, with the deed itself, delivered to Benjamin Nesmith before expiration of the time for redemption; and that said deed and assignment passed into the possession of Hoyt, and were by him produced at the trial. He further found that plaintiff below at the time of the conveyance by his brother J. A. Neill, [468] to himself, in March, 1885, had actual knowledge of the conveyance from Benjamin Nesmith to Hoyt; and also knew that J. A. Neill had no deed in his possession, and that no deed to him was then recorded; that he directed inquiry to be made of Benjamin Nesmith, but neither made nor requested any inquiry of Hoyt, who, as he actually knew, at that time claimed to own the land in controversy. Other facts, of subordinate importance, also found by the learned judge, appear in the record of his findings. Notwithstanding the foregoing and other findings of fact and conclusions of law, the learned judge held that plaintiff below, when he took the deed of March 20, 1885, from his brother J. A. Neill, had no notice, actual or constructive, of the prior assignment to Benjamin Nesmith indorsed on the treasurer’s deed, and therefore he was a bona fide purchaser for value, without notice, and as such entitled to recover. In that we think there was error. The facts found by the court below were sufficient to have put the plaintiff on inquiry as to the existence, whereabouts, and condition of the treasurer’s deed, upon which the title his brother proposed to convey depended. Recognizing the propriety of such inquiry, he directed it to be made of Nesmith, but he neither made nor requested any inquiry to be made of Hoyt, notwithstanding he then knew that the latter claimed the land and had a general warranty deed from Nesmith therefor. If inquiry had been made of Hoyt, it doubtless would have developed the fact that he held the treasurer’s deed with J. A. Neill’s assignment indorsed thereon, and that said Neill had thereby disposed of his interest in the land nearly twenty years before. It clearly appears that when plaintiff below took'the conveyance from his brother in March, 1885, and for nearly twenty years prior thereto, defendant’s lessor, Uriah G. Hoyt, owned the land in dispute. He had a deed for it from Benjamin Nesmith recorded in June, 1865. He had redeemed it from tax sale to Ozro Nesmith in 1866, taking a paper in the form of an assignment on the back of the treasurer’s deed, and recording both in June, 1868. He had also in his possession the treasurer’s deed to J. A. Neill with his assignment to Benjamin Nesmith indorsed thereon, but that deed was not re [469] corded -until May 29,1885, about six weeks after the deed of plaintiff below from his brother was recorded. On the other hand, it is equally clear that plaintiff’s vendor, J. A. Neill, had no title to the land. It does not appear that he was ever in possession of it, or exercised any acts of ownership over it, by paying taxes or otherwise. There was no conveyance to Mm on record, nor had he in Ms possession any writing indicating any title or claim, except the qmt-claim deed from Ozro Nesmith, which he obtained with knowledge of Nesmith’s former recorded assignment to Hoyt. Under such circumstances and with such knowledge as he is shown to have had, it behooved plaintiff below to act not only in good faith but with extreme vigilance: Sergeant v. Ingersoll, 7 Pa. 840, 345. As was said in that case, “ A purchaser without notice must appear to have acted not only in good faith but with extreme vigilance, for equity refuses to protect the careless and the slothful.” The fact that J. A. Neill had been at least passive as to his claim, for nearly twenty years, and had no evidence of title in his possession, was enough to make inquiry a duty; and the fact that Hoyt had been the active claimant of the land, during all these years, and was still claiming it, was sufficient to indicate the quarter in which inquiry should have been made. When inquiry becomes a duty, neglect to make it visits the negligent party with constructive notice of such facts as a proper discharge of the duty would have disclosed. As has already been stated, if proper inquiry had been made of Hoyt, it would have been discovered that J. A. Neill had no title to convey. From what has been said it follows that the fourth, sixth, seventh, eighth, and ninth specifications of error are sustained. Judgment reversed, and now judgment is entered in favor of the defendant below.