West Coast Lumber Company, a Corporation, Appellant, v. W. D. Griffin, Appellee, 56 Fla. 878

Taylor, J. The appellee as complainant below hied his bill in equity against tire appellant 'as. defendant below in the circuit, court of Taylor county alleging that he was the owner in fee of a certain described 360 acres of land in said Taylor county of which he was in possession.

That said land wa's sold on June 1st, 1859, by oine Nleil Hendry to Archibald Griffin who was 'tiren put in possession thereof and who through various tenants held such possession until his death in 1865, and that his heirs through a tenant have continued in possession thereof, until they sold the same to complainant, and he, through a tenant has continued ever since in the possession thereof. The J. E. Hendry and N. C. Hendry as executors of the last will of the said Neil Hendry on- December 31st, 1895; sold and conveyed said land to one W. B. Stephens 'by deed which was not recorded until March 3rd, 1903.

No question is raised as to the power of the executors -as such to convey the property. That W. B. Stephens sold and conveyed same by deed on April 25th, 1900, to J. W. Oglesby, attorney, and that on April 23rd, 1900, J. W. Oglesby sold and conveyed same to the defendant The West Coast Lumber Company, a corporation, who- now claims the same by virtue of the foregoing conveyances. That all of said conveyances are -clouds upon his title. The bill prays that -the said deeds from J. E. Hendry and N. C. Hendry as executors to W. B.

Stephens, -and from Stephens to Oglesby 'and from Oglesby to the defendant be cancelled as clouds upon his title. The 'defendant -answered the bill denying specifically every material allegation .thereof, and -alleged that it purchased the land in good faith and without 'any notice of -any sort -or knowledge that there was any 'other claim, title -or right thereto- in anyone else either laotual or constructive. That the alleged conveyances, if there ever were any such, from Neil Hendry to Archibald A. Griffin, and from the heirs at law of Archibald A. Griffin to the complainant and one W. S. Blitch, «end from W.

S. Bli'tdh to complainant have never been recorded in Taylor county where s-aid lands -are situated and that defendant otherwise had no-. notice or knowledge thereof. The cause was referred to- a master to take testimony, who took and. reported a voluminous amount of testimony both oral and dcum-eotary, and at the final hearing -on bill, 'answer and evidence the aourt below rendered a final decree finding the equities to be with the complainant, and cancelling the deeds by which the defendant claims title to the land 'as prayed in the bill.

Prom this decree the defendant below! has appealed to this court and 'assigns the rendition, of said decree to be enriar. The court below erred in making the decree appealed front. The evidence shows that .all of the land in dispute, except about four and a half acres, is wild and unoccupied woodland, unenclosed 'and unimproved.

About four and a half acres of it are inclosed by the fence of an adjacent owner located on the west side of it whose enclosure runs across the division line between his land and the land i:n, dispute at one point and thereby takes in said four and a half acres within the field of such adjacent owner — and 'in this condition, has the property ■ remained for many years, except that it is not definitely stated how long the 4/^ acres have been thus enclosed. The alleged conveyances from Neil Hendry the original owner, from, whom both parties claim-title, to Archibald A.

Griffin and from the heirs at law of Archibald A. Griffin to the oompllainanit and W. S. Blitch, and from W. S. Blitch to the complainant, if there ever were any such conveyances, were never spread- upon the records of Taylor county where the lands are situated prior to the purchase by, and conveyance thereof to, the defendant, and there is no attempt even at any proof that the defendant at' the time it purchased and acquired title to the property had any sort of notice or knowledge of any of said alleged Conveyances.

The only visible semblance of possession by 'the complainant wias the four and a ■half acres enclosed under the /fence surrounding adjacent lands of an adjacent owner, who claimed to have said four and a half acres in bis possession as the teman t or agent of the complainant.

It is well settled here that, under ouiy recording laws subsequent purchasers acquirimg subsequent title without notice of a prior unrecorded deed will be protected against such unrecorded conveyance unless the party claiming thereunder dam show that such subsequent purchaser acquired his title with'notice -of such unrecorded conveyance; and that the burden- of showing such notice is upon 'the party claiming under ■such unrecorded conveyance.

And that all of the presumption's in such a -case .are in favor of the bona tides of such subsequent purchaser and that he acquired his subsequent title in good faith and without notice of the prior unrecorded conveyance the party who has neglected to record his prior title to show that the subsequent purchaser has -acted in fraud of Iris rights by purchasing with notice of his unrecorded prior conveyance. Fineberg v. Stearns, 56 Fla. 279, 47 South. Rep. 797, decided here at the present term, and aasies there cited.

At the taking of testimony the complainant introduced in evidence some tax deeds from the State to himself to the lands in- controversy antedating the conveyances under which the defendant claims title. The complainant in his bill makes no mention of any such tax deads — ■ does mot in his bill claim thereunder,' but expressly in his bill plants his right and claim's upon the alleged conveyance from Neil Hendry to Archibald A. Griffin 'and from the heirs at law of Archibald A. Griffin to himself. and W. S. Bliitdh and from the said Blitch to himself.

His attempt to show 'title 'in- himself through these tax deeds was wholly inconsistent with the case made by his bill. Since if be was the owner of the lands under the conveyances as alleged in his bill it became his duty to p'ay the taxes thereon as they hecamp due, and said tax deeds, therefore, conveyed him no- better title than he had before. The decree of the court below in said Cause is hereby reversed at the cost of the appellee, and the cause remanded with directions' for the entry of a decree in favor of the defendant ‘and dismissing tire complainant’s bill.

Hocicer ‘and Parkhill, JJ., concur; i Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.