Hanrick v. Thompson , 9 Ala. 409 ( 1846 )

ORMOND, J.

We shall not enter upon the inquiry, whether there was such a note, or memorandum in writing, as would satisfy the requirements of the statute'of frauds, because, conceding such to be the fact, we think Powell is entitled to recover, upon the ground that he was a bona fide purchaser, without notice of the claim of the defendant in error, and therefore entitled to the protection of the court.

There is no ground for pretending, that either Hanrick, the executor of Walker, who had sold the land, or Powell the purchaser, had any notice of the claim set up by the defendant in error. They both expressly deny any such notice, and every fact from which such notice could be inferred.

It is alledged in the bill, that the complainant and Walker purchased jointly a fractional section, 570 acres, which they agreed to divide equally, by a line running east and west, 'giving to each 285- acres; that the line was run out, in accordance with the agreement; that he took possession of the west half, and proceeded to make improvements thereon, up to the line. The answers explicitly deny that any such line was run, or that aiiy traces are to be found of such a line. The only proof is, that of the certifying agent, who states, that there was an understanding that the land was to be equally divided, between Walker and the complainant; that they paid for an equal number of acres, and at their request, he made an equal division of the number of acres, and inserted it in the face, or at the bottom of éach contract, and also made an entry of the same in his book of locations. We do not understand from this testimony, that the witness made a survey, to ascertain where the line would run, which would divide the fractional section into two equal parts, and by visible marks, oj otherwise, indicated where it was. The only fair, or reasonable interpretation is, that he merely made a calculation, a division as he accurately terms it, for the purpose of making an entry of the true amount, or number of acres, upon the contract, and in his book of locations, leaving the parties themselves to ascertain the position of the line, which would divide thejr respective tracts.

Such a line was necessary to be run, because the United States survey, divided the fractional sections into unequal portions, making the* east half a complete half section of land, containing-320 acres, whilst fhe west half contained but 250 acres. If such a line- had been run, as alledged in the bill, and the complainant had made improvements up to the line, such an actual occupancy of the land, would have been sufficient to put the purchaser upon inquiry. But there is no proof that such a line was run, or occupation in accordance with it. The facts, as they appear upon the record, are, that a patent issued to Walker for the east half of the section, calling for 320 acres; that Hanrick, his executor, advertised and sold the land to Powell, at public sale, who paid the purchase ■money, and obtained the title therefor, without notice of the claim of the complainant to a portion of the land, and without such a possession as would have put him upon inquiry, as to the character of -the claim asserted in virtue of such possession. He is then, a purchaser for a valuable consideration, without notice of any adverse claim, having paid the purchase money, and completed his title, before receiving notice. He unites the legal title to an equity equal to that of the complainant, and has therefore a right to be protected in a court of equity. For authorities upon this well known rule of equity, see the cases cited upon the brief of the plaintiff in error.

From this view it follows, that the Chancellor erred in the decree rendered by him, which must be reversed, and a decree be here rendered dismissing the bill.