
    Webster v. Clear.
    
      Real estate — Deed to, from the state — Character of title purchaser takes — Remedy where title fails.
    
    One who purchases and receives a deed of land from the state, after it has been sold and conveyed to another, though the purchase was made in good faith and without actual notice, takes no title to the land against the former purchaser, although the deed of the latter is not at the time on record in the county where the laud is situate. A purchaser from the state takes such title as the agents of the state are authorized to convey; and, by way of indemnity, the justice of the state has, through its legislature, provided for the return of the purchase money to the subsequent purchaser with interest from the time of the illegal sale; he has no title to, and cannot recover, the land.
    (Decided May 10, 1892.)
    Error to the Circuit Court of Van Wert county.
    The plaintiff below, Zadoc Clear, brought suit against James Webster and Eawrence H. Wise to recover the possession of a certain tract of land described in the petition. The case was commenced in Paulding county, where the land is situated, and was, for some reason, afterwards removed to Van Wert, wheré it was heard and determined by the courts of that county. By reason of the fact that the lands of which a recovery was sought, had previously been partitioned between Webster and Wise, the plaintiff subsequently amended his petition so as to demand the part held by Webster, and dismissed his action as to Wise.
    The plaintiff deduced his title from the state under a deed made by the state to Charles Elliott on July 24, 1854, and a deed subsequently made by Elliott to himself.
    The defendant answered denying all the averments of the plaintiffs petition, and, as a second defense, averred that in 1853 the lands belonged to the state as canal lands, and were subject to entry by actual settlers at a greatly reduced price; that in that year Charles Elliott made a pretended entry and purchase of the lands, by falsely representing that he -desired them for actual settlement, and afterwards falsely represented to the Auditor of State that he had made such settlement and thereby procured from the Governor a deed for-the lands; that he never caused the deed to be recorded, and. that the lands did not appear upon the books of the Auditor of State as having been entered by any one; that on December 21, 1871, there being no deed for the land on record in the Recorder’s office of the county, and having no knowledge of the pretended claim of the plaintiff, he purchased the-same of the state and received a deed therefor from the-Governor, under the act of April 5, 1866, and paid therefor the sum of $320, and has been in the actual possession of the-same ever since, and prays that .the deed to Elliott, and, those claiming under him, máy be cancelled and his title - quieted.
    The plaintiff in his reply admitted the original character and ownership of the lands, that an entry was made by Charles Elliot in 1853, and that a deed was made to him by the state in 1854, under whom he claims by intermediate conveyances, but denied all the other allegations in the answer.
    The case was tried to the court upon the pleadings and. the evidence, which at the request of the plaintiff found and stated its conclusions of fact and law separately, as follows:
    
      “First — That on the third day of January, A. D. 1863, the-lands described in the petition, to-wit, the south half of the southeast quarter of section twenty (20) in town two (2)-north, of range three (3) east, in the county of Paulding, and. state of Ohio, containing eighty acres, more or less, were-owned by the state of Ohio, having been theretofore granted to the state of Ohio, by the United States of America, to aid. in the construction of the Miami canal, north of Dayton.
    
      “Second — That-on said third day of January, A. D. 1853, one Charles Elliott duly entered, purchased, and paid the-State of Ohio for said lands the sum of $80.
    
      “Third — That on the twenty-fourth day of July, A. D. 1854, by its deed, duly executed by the Governor of said. Stale of Ohio, under the great seal thereof, in all respects according to law, the said state of Ohio, for the consideration. aforesaid, duly conveyed and granted said land to tbe said Charles Elliott, his heirs and assigns, in fee simple, forever. That said deed was duly recorded in volume four (4), page 245, of the record of deeds of canal lands, in the office of the Auditor of State of the state of Ohio, but was not recorded in the record of deeds of Paulding county, Ohio, until the twenty-fourth day of September, A. D. 1875, and until after the execution and delivery of the deed to James Webster and Eawrence H. Wise, hereinafter mentioned.
    
      “Fourth — That on the twenty-first day of December, 1871, said James Webster and Eawrence H. Wise, in accordance with the provisions of an act passed by the legislature oí Ohio, April 5, 1866, entitled, “An act to provide for the sale of the remaining canal lands belonging to the State of Ohio,” in good faith, and without any knowlege that the same had been theretofore sold and conveyed to the said Charles Elliott, by said state of Ohio, purchased said lands from the Auditor ol State of said state of Ohio, and paid therefor the sum of $320, and the governor of the said state of Ohio made and delivered to said James Webster and Eawrence H. Wise a deed for said lands from said state of Ohio, to them and their heirs and assigns, in fee-simple, forever.
    
      “Fifth — That by certain proceedings duly had in the court of common pleas of Van Wert county, Ohio, by and between the said James Webster and Eawrence H. Wise, and Samuel Neil, as the assignee of said Eawrence H. Wise, the land hereinbefore described was set off to said James Webster in severalty; and that, by deed duly executed and recorded in the records of Paulding county, Ohio, all rights, title and interest of the said Charles Elliott was, for a valuable consideration, conveyed to the plaintiff, Zadoc Clear, and his heirs and assigns, in fee simple, forever,
    “And thereupon, the court finds, and states, in writing, as its conclusions of law upon the facts hereinbefore found and stated, that the said James Webster and Eawrence H. Wise are bona fide■ purchasers of said lands, having, at the time of said purchase thereof, no knowledge of the existence of the former deed from the said state of Ohio to the said Charles Elliott, his heirs and assigns, for said lands, and that tie said deed from said state of Ohio to said Charles Elliott his heirs' and assigns, for want of such record in said county of Paulding, ought to be held and deemed to be fraudulent and void as to the said James Webster, his heirs and assigns^ forever.”
    Thereupon the court adjudged the 'deed of the state to Elliott to be null and void, and quieted the title of the defendant to the possession of the land. Exception was taken at the time to the conclusions of law as stated by the court and to'its judgment thereon in favor of the defendant. On error the judgment was reversed by the circuit court, and judgment rendered in favor of the plaintiff Clear for the possession of the land. And this proceeding is now prosecuted to reverse the judgment of the circuit court and affirm that of the common pleas.
    
      John Darnell, for plaintiff in error.
    At the time that Webster and Wise purchased the land under the provision of an act passed on April 5, 1886, (See Statutes of Ohio, Yol. 63, page 140.) if they did not have actual knowledge of the Elliott deed, then they had a right to buy from the Governor and receive a deed for said land, and were innocent purchasers without notice. See Section of Statutes 4134, which was in force at that time, amended in 1882, page 330 1st Vol. Williams Statutes of Ohio. Morris v. Daniels, 35 Ohio St., 436.
    The defendant in error was guilty of negligence in holding an unrecorded deed for more than six months after the same was made and delivered, and the title to this particular piece of land could not be affected by any unrecorded deed, over six months old, until said deed was placed on record in Paulding county, Ohio, where the land was situated. By analogy we refer to the Statutes of Ohio, section 5967, protecting a bona fide purchaser, without knowledge of a will, where he purchases from one of the heirs.
    
      Hill & Hubbard, for defendant in error.
    I. We maintain, that there was no law in force on the 21st day of December, 1871, or at any time prior thereto, by tlie provisions of which, the deed from the state to Elliott was required to be recorded in the records of Pauld-ing county. Act of April 16, 1857; Swan & C. 476.
    The provisions of the act of February 22, 1831, Swan & C. 458, do not apply. State deeds were not within the terms of said act. Woodbury & Co. v. Berry, 18 Ohio St., 456.
    This statute, which, for the reason that the considerations of policy that dictated the enactment of its provisions as to the registration of the deeds of natural persons, applied with equal force to the deeds of corporations, has been extended by the decision in Sheehan v. Davis, 17 Ohio St., 571, far beyond the natural effect of its language, so as to include the latter class of deeds, should not now, by judicial legislation, be further extended to include state deeds, which are not onfy not mentioned or referred to in the language of the act, but which, as we confidently maintain, are not required by these considerations of policy, to be held to be included within its provisions.
    The object of all recording acts, is the protection of bona fide purchasers against being defrauded by means of prior conveyances or incumbrances, of which they have no notice, or knowledge, at the time of their purchase.
    Where one, whether a natural person or a corporation, sells and conveys lands to two different purchasers, but one of such purchasers can hold and enjoy the land. The only remedy, the one who fails to hold the land can have, is an action against the seller to recover the purchase money paid.
    The state has made provisions for the protection of such purchasers, against loss. 1 Curwin Stat. 115 and 116; 1 Swan & C. 197; Giaque’s Rev. Stat., 1890, pages 2380 and 2381.
    II. But even if this court should hold otherwise on these propositions, we claim that the court of common pleas clearly erred in finding that Webster and Wise were purchasers of this land within the meaning of the recording act, and in holding that they were entitled to the protection given by the act to subsequent purchasers.
    
      The state of Ohio sold these lands to Elliott. The state of Ohio never did sell, or attempt to sell, these lands to Webster and Wise. The Governor made a deed to Webster and Wise, for these, lands. But he had no power or authority to make such deed.
    The only power or authority of the Governor to make deeds for, or in the name, or on behalf of, the state, was to make such deeds to tire purchaser from the state, of lands sold by the state, for the lands so purchased and sold. As the state never sold, or authorized a sale of these lands to be made, to Webster and Wise, the deed made to them was the unauthorized act of the governor, and was not the act or deed of the state.
    The state of Ohio never did deed, convey or attempt to convey, these lands to Webster and Wise. It did duly convey them to Charles Elliott, and to no one else. Roseberry v. Hollister, 4 Ohio St., 297.
    The law of caveat emptor, in such cases applies with all its force to the purchaser. He buys at his peril. If the land had not been previously sold, he acquires title; if it had, he gets no title.
    It is very clear that the state never intended to authorize the Auditor of State to sell any lands • which the state had theretofore sold and for which it had received full payment, and had executed and delivered its deed to the purchaser.
   MiNSHAi/r,, J.

Both parties in this case claim title to the lands in question from the state to whom they belonged in 1858, as a part of its canal lands. In that year Charles Elliott purchased the- lands for a valuable consideration, and in 1854, received a deed therefor, executed by the Governor in due form, which, as required by law, was duly recorded in the record of deeds of canal lands kept in the office of the Auditor of State. It was not, however, recorded in the recorder’s office of the county of Paulding, where the land is situate, until in 1875. The plaintiff derives his title from Elliott by a deed duly executed. In 1871, Webster and Wise, without actual notice of the deed to Elliott, for a valuable consideration purchased the same lands from the state and received a deed therefor in due form of law. Their purchase was made under the provisions of an act passed April 5, 1866, providing “for the sale of the remaining canal lands belonging to the state.” 63 Ohio Raws 140.

The principal question in the case is, as to the effect of the omission of Elliott, or his grantee, to cause the deed executed to him for the land in 1854, to be recorded in the office of the recorder of Paulding county, until after the purchase had been made by Webster and Wise. The defendant claims that under the provisions of our recording act the deed to Elliott is of no avail against him, as he and Wise are bona fide purchasers having at the time they made their purchase no knowledge of the existence of the former deed.

We do not adopt this view. Whether the provisions of the act providing for the recording of deeds and the effect of an omission to do so, in terms applies to a deed made by the state, need not be considered, as special provision is made by the act of April 16,1857, (54 Ohio Raws, 160), for the recording of all deeds made by the state, in the auditor’s office; and though this act was passed a few years subsequent to the sale to Elliott, it is made applicable by its terms to any lands, that “have heretofore been sold or may hereafter be sold; ” and this deed was recorded in the auditor’s office in the record of canal lands as found by the court. This special provision for the recording of deeds made by the state, must, agreeably to the decision in Betz v. Snyder, 48 Ohio St. 492, be regarded as superseding the general provision on the subject. It was there held that the deed of an insolvent assignor for the benefit of creditors, takes effect and is notice to all persons from the time it is filed in the office of the probate judge, without having been recorded in the office of the recorder of the county, on the ground “that special statutory provisions for particular cases, operate as exceptions to general provisions which might include the particular case.” Hence, a deed from the state, executed and recorded as prescribed by this statute, necessarily becomes notice to all persons, that the land described in it has been sold and conveyed to a purchaser; and no one, unless by his negligence, can be a subsequent purchaser without notice. The rule is a convenient one. All purchases of lands from the state must be made through the auditor’s office. It is therefore not only convenient but proper, that evidence as to title and power to sell, should be sought for and furnished in the department where the individual, in acquiring lands from the state, must transact the business.

Again the act of April 5, 1866, under which the sale was made to Webster and Wise in 1871, simply conferred power on the auditor to sell “the remaining canal lands belonging to the state.” (63 Ohio Raws 140). In Roseberry v. Hollister, 4 Ohio St. 297, it was held that, where an agent of the state, under a power to sell any of “the unsold lands” belonging to it, sold to a third person a lot that had previously been sold to another, a deed made in execution of the power was void for want of power to make the sale, although the subsequent purchaser had no notice of the purchase and rights of the first one. KeNNON, J. said, in the disposing of the case: “ The authority of the state’s agent depended on the fact of whether he had made a previous sale of the lot. If he had not, then he could sell to the defendant; if he had, then he was not authorized to sell. The superintendent having, according to the authority conferred on him by the state, offered at public auction, and sold, this very lot, he had no authority from the state to afterwards sell the same lot, at private or public sale, to anybody; and, therefore, the second sale was wholly unauthorized by law.” The provisions of the registration act were insisted on by the second purchaser, but the court held that it had no application to the case, and that the doctrine of caveat emptor applied to him with all its force. In that case the first purchaser had no deed at the time of the sale to the second purchaser, he had simply paid for the land and received a certificate of purchase; and if the principal of caveat emptor, applied in that case, for an equal if not stronger reason, it applies in this,, where the first purchaser had not only paid, but had received and held a deed, for his land. The principle seems to be, that in making purchases from the state, the individual is bound to inquire for himself as to the title of the state, and its power to convey; and can acquire no rights against a previous purchaser of the same lands from the state. He stands in the shoes of the state and takes such title as it had power and right to convey. In Governeur's Heirs v. Robertson, 11 Wheat, 332, it is said. “The state never intends to grant the lands of another; and where the grantee is ignorant of the previous patent, the maxim, caveat emptor, is emphatically applicable to this species of contract.” Again, in Best v. Polk, 18 Wal. 112, it was said by Justice Davis, in delivering the opinion, “ It has repeatedly been held by this court that a patent is void, which attempts to convey lands that have been “previously granted, reserved from sale, or appropriated.” Stoddard v. Chambers, 2 How., 284; United States v. Arredondo, 6 Pet., 728; Richart v. Felps, 6 Wal. 160. And in New Orleans v. United States, 10 Pet., 731, it is said. “ It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive; and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative.”

That such is the policy of this state, seems supported by the fact that, to such persons as purchase lands of the state, and the title fails by reason of a previons sale to some one else, the legislature has provided indemnity. Thus by the act passed January 29, 1844, (42 Ohio Daws 6), it is provided, that where a tract of land has been purchased from the state, the purchaser, on making proof to the Auditor of State that the same was erroneously sold, and surrendering the deed therefor, is entitled to a warrant on the treasury for the money paid with interest at six per cent, from the date of the illegal sale. And this act is still in force. 2 Giauque Statutes, pp. 2380-1. Before this, in 1834, an act was passed, relating directly to the Miami canal lands. It provided that all persons who have or may hereafter purchase land at the office for the sale of the Miami canal land, “when the same had been previously sold and conveyed,” should be entitled to receive the amount which the purchaser had paid, out of the state treasury on the warrant of the auditor. 1, Curwen, Stat., 115. These provisions consist with the justice of the state. But, it will be observed, that no provision is made, applicable to the case of the previous purchaser, should he loose by reason of a sale made to a second purchaser by the state. If the claim of the latter is allowed to prevail, the first purchaser is without any remedy; and yet the loss must résult as a direct consequence of the wrongful act of the agents of the state in selling his land to another person. This would be contrary to the justice of the state, and was, therefore, not intended. Injustice to either is avoided by providing an indemnity to the one who gets no title from the state, as has been done. In such case the first purchaser retains his land and the justice of the state is satisfied.

/ It is therefor clear that, upon the facts found by the common pleas, it erred in rendering judgment for the defendant below; and that the circuit court did not err in reversing the judgment of the common pleas and in rendering judgment for the plaintiff for the possession of the land.

Jiidgment affirmed.  