
    Weir et al. v. The Snider Saw Mill Co.
    
      Sale of real estate—In partition proceeding—Is judicial sale, when— Rights of bona fide purchaser—Under Section 8543, General Code—Rule of caveat emptor—Purchaser of real estate entitled to timber standing thereon—Although timber sold previous to real estate purchase—When timber sale not filed in recorder’s office' md purchaser without notice.
    
    1. A sale of real estate in a partition proceeding, under order o-f the court, is a judicial sale, and a bona fide purchaser at such sale is within the protection of the provisions of Section 8543, General Code.
    2. The rule of caveat emptor, applicable to judicial sales, does not charge a purchaser at such sale with knowledge of the existence of an instrument conveying the real estate, or a part thereof, where the instrument has not been recorded or filed for record in the office of the recorder, and where the holder of the same has taken no step to put one on notice of its existence.
    3. At a sale of real estate made in a partition proceeding, under order of the court, the purchaser acquires title to the standing timber thereon, although said timber had been sold by the person from whom the parties to the partition proceeding acquired title to the real estate by descent, and said sale of timber had been evidenced by a written instrument, but where said instrument had neither been recorded nor filed for record in the office of the recorder, and where the purchaser at the sale in the partition proceeding had no notice of the sale of said timber.
    (No. 13351
    Decided October 7, 1913.)
    Error to the Circuit Court of Perry county.
    Plaintiffs in error, who were plaintiffs in the common pleas court, brought an action against defendant for damages claimed to have been sustained by them by reason of defendant’s unlawful and forcible entry upon their land and for the cutting down, carrying away and manufacturing into lumber and converting to its own use a large amount of timber. The land of plaintiffs is described in the petition, and defendant is charged with having committed the acts mentioned on or about the first day of September, 1909.
    Defendant filed an answer in which it alleged that for many years prior to December 24, 1908, one Anthony Weible was the owner in fee simple of the real estate described in the petition, and continued to be such owner until his decease February 13, 1909; that on the 24th day of December, 1908, the said Anthony Weible sold to one Omer Snider, who was then and has been ever since a member of defendant company, all the timber on the real estate described in the petition, which lay north of a certain public road, for a valuable consideration paid by Snider, and the said Snider, as and for a receipt for said money and for a conveyance of said timber, received from said Weible a written paper and conveyance, which reads as follows:
    “The Snider Saw Mill Company,
    “Manufacturers and Dealers in Hardwood Lumber.
    “Special Bills Cut to Order.
    “Somerset, Ohio, 12-24-08.
    “Received of Omer Snider $75.00 for all timber north of road on my farm.
    “Anthony Weible;”
    that the timber sold to Snider was purchased from him by defendant, and said written contract of purchase was by him immediately transferred and delivered to it and that it has ever since the payment of said money and the execution of said receipt and transfer been the owner of said timber, being the timber referred to in the petition which defendant is charged with cutting and removing; that the said Weible died intestate on the 13th day of February, 1909, and his real estate descended to his heirs; that he did not at his death own said timber, nor did it descend to his heirs, and that they acquired no title thereto or interest therein by reason of his death; that after the death of said Weible, one of his heirs, to whom said real estate descended, filed in the probate court of Perry county, Ohio, his petition for partition of said real estate, making all the heirs at law of said Weible defendants; that néither said Omer Snider nor the defendant was made party to the action; that thereafter such proceedings were had in said case that commissioners were appointed by the court to make partition of said real estate among the heirs of said Weible, and said commissioners, not being able to divide the same, returned an appraisement, and, thereupon, the court ordered a sale thereof by the sheriff, and the sheriff, after due advertisement, sold the same at partition sale on May 22, 1909, at public auction, and plaintiffs became the purchasers thereof at said sale, which sale was confirmed by the court, and that said purchase constituted plaintiffs’ sole and only title to said real estate; that said Weible did not own said timber at the time of his decease, and that his heirs at law did not inherit' it, and had no interest therein or claim thereto, and that plaintiffs, by their purchase at said partition sale, acquired only the title and ownership in said real estate which said heirs of Weible acquired by inheritance, and that plaintiffs have not and never had any right, title, interest or ownership in said timber.
    Defendant, further answering the petition, denied each and every allegation therein contained, except such as was specially pleaded or expressly admitted to be true by its answer. Plaintiffs filed a motion in the trial court in which they asked to have stricken from the answer, as incompetent, irrelevant and immaterial, the allegations thereof relating to the ownership of the real estate in question by Weible, the salé of the timber to Snider, the assignment of the receipt to defendant, the death of Weible, the partition proceedings and the purchase of the real estate by plaintiffs; the matter asked to be stricken out being the whole of the answer, except the admission that the defendant was a corporation and a denial of such allegations of the petition as were not admitted to be true by the answer.
    This motion was sustained by the common pleas court. Defendant then made application for a rehearing of said motion, which was denied, and the case was tried to a jury upon the issue joined by the petition and that part of the answer remaining after the matter above referred to was stricken out, and resulted in a verdict for plaintiffs. A motion for a new trial was filed and overruled, judgment rendered on the verdict and error prosecuted to the circuit court of Perry county by defendant, The Snider Saw Mill Company.
    
      The circuit court reversed the judgment of the common pleas court, upon the sole ground that the trial court erred in sustaining the motion of the plaintiffs below to strike from the answer the matters and things set out in the motion, and .remanded the cause to the court of common pleas, with directions to overrule the motion of plaintiffs below and, thereupon, to proceed according to law.
    Error is prosecuted to this court by plaintiffs in error to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.
    
      Messrs. Donahue Spencer, for plaintiffs in error.
    
      Mr. John Ferguson, for defendant in error.
   Newman, J.

The question presented by the. record for our determination is whether plaintiffs in error, the purchasers of the real estate of Weible at the sale in the partition proceeding, acquired title to the timber which had been sold by Weible to Snider and by him transferred to defendant in error. This question is raised by the motion to strike from the answer certain' allegations relating to the sale of the timber and to the partition proceeding.

It cannot be claimed seriously that the sale of the timber in the case at. bar was not a sale of an interest in land. The case of Hirth v. Graham, 50 Ohio St., 57, is in point, in which it is held that a sale of standing timber, whether or not the parties contemplate its immediate severance and removal by the vendee, is a contract concerning an interest in lands, within the meaning of the statute of frauds. This case is followed and approved in Clark v. Guest, 54 Ohio St., 298.

Section 8543, General Code, is as follows: “All other deeds and instruments of writing for the conveyance or incumbrance of lands, tenements, or hereditaments, executed agreeably to the provisions of this chapter, shall be recorded in the office of the recorder of the county in which the premises are situated, and until so recorded or filed for record, they shall be deemed fraudulent, so far as relates to a subsequent bona fide purchaser having, at the time of purchase, no knowledge of the existence of such former deed or instrument.”

The instrument of writing by which Weible conveyed the timber in question was not recorded or filed for record in the office of the recorder of the county, nor is there any claim that plaintiffs had knowledge of the existence of the instrument, nor any claim that the purchaser or his transferee took possession or did any act or took any step which would put one on notice that they, or either of them, had any interest in or title to the timber at the time of the purchase of. the real estate by the plaintiffs at the sale made in the partition proceeding.

In Morris v. Daniels, 35 Ohio St., 406, Judge McIlvaine, in passing upon a statute similar to Section 8543, in which the phrase "bona fide purchaser” was used, says a subsequent purchaser will not be protected against a prior unrecorded deed, unless the purchase be made in good faith, for a valuable consideration and without knowledge, at the time, of the existence of the former deed.

In the case at bar, the purchase by plaintiffs was made in good faith, for a valuable consideration and without knowledge, at the time, of the instrument executed by Weible.

It appears from that part of the answer which was stricken out on motion that the sale of the real estate in question was made by the sheriff ■under order of the court in a partition proceeding, which sale was confirmed by the court. It was a sale made by a court of competent jurisdiction in a pending proceeding by an officer authorized by law for that purpose, and confirmation was necessary. The sale in question was, therefore, a judicial sale, a distinguishing feature of which, as has been held by this court, is that it must be confirmed by the court before it will be complete.

But a bona fide purchaser at a judicial sale is entitled to the same protection, under the provisions of Section 8543, General Code, as a purchaser at private sale. This was the holding of this court in Sternberger & Willard v. Ragland, 57 Ohio St., 148, where it was held that a bona fide purchaser at a judicial sale, without notice of an unrecorded deed, is within the protection of Section 4134, Revised Statutes, now Section 8543, General Code.

We appreciate the fact that the rule of caveat emptor applies to judicial sales, but the rule does not charge a purchaser with knowledge of an ■unrecorded instrument affecting the title of the existence of which instrument he had no knowledge, nor where possession is not taken thereunder.

In the case of Arnold v. Donaldson, 46 Ohio St., 73, which is cited by defendant in support of its contention, it is laid • down as a rule that the maxim caveat emptor is applied in all its force in judicial sales, but it is stated by the court in that case that in the absence of fraud the buyer buys at his own risk as to title. In Vattier v. Lytle’s Executors, 6 Ohio, 478, one of the earlier cases in which the rule of caveat emptor is discussed, the court follows and approves a case in which it is laid down that if there is fraud, that will affect the sale by sheriffs as well as all other sales.

By force of the provisions of Section 8543, an instrument for the conveyance of land, until it is recorded in the office of the recorder or filed for record, is deemed fraudulent, so far as it relates to a subsequent bona ñde purchaser having, at the time of the purchase, no knowledge of the existence of such instrument. Can it be said, then, that in the case at bar there was an absence of fraud? The failure on the part of the defendant or its predecessor to record or file for record the instrument under which it was claiming title, so far as it affected the title of plaintiffs in error—the bona ñde purchasers—under the plain provisions of Section 8543, rendered the instrument fraudulent.

It is contended by counsel for defendant in error that Weible, in his lifetime, after he had sold the timber to Snider, could not have asserted any right to the timber growing on the land north of the road running through the farm and described in the petition, that only such title as Weible himself had descended to his heirs, and only such title as the heirs had would pass by the sale in the partition suit. This seems to have been the ground upon which the circuit court based its decision in holding that the allegations set out in the answer constituted a good defense.

In support of their contention, counsel rely upon the case of Tabler v. Wiseman, 2 Ohio St., 208. In that case the whole of a tract of land, of which the intestate died seized, had been assigned to his widow as her dower. The question for determination was whether his heirs, who were remainder-men, could maintain a proceeding in partition during the lifetime of the widow. The rights of an innocent purchaser were in no way involved. We fail to see the applicability of the law of that case to the facts in the case at bar.

It is true that the instrument executed by Weible was enforcible as between him and defendant. It was enforcible against the heirs of Weible also, although it was neither recorded nor filed for record, for the reason that these heirs could not avail themselves of the provisions of Section 8543, for they were not bona ñde purchasers. But as to plaintiffs, they were purchasers at a judicial sale and bona fide purchasers, and were protected by the provisions of this section. Had Weible, after the execution of the written instrument and upon the failure of Snider to have it recorded or to file it for record, sold the land at private sale to a bona ñde purchaser, without knowledge of the existence of the instrument, the same would have been wholly unavailable against the purchaser. If the heirs of Weible had made a disposition of the property to a purchaser for value, and without knowledge of the existence of the instrument, defendant could have made no claim thereto. In either event, it could be claimed with as much force as is claimed in the case at bar that neither Weible nor his heirs could dispose of a greater interest in the land than they themselves actually owned. But such a doctrine is not sound, and, if carried into effect, would nullify wholly the provisions of Section 8543 ahd afford no protection to a bona fide purchaser of real estate having no knowledge of outstanding claims.

For the reasons we have given, we are of the opinion that the matter stricken from the answer of the defendant was immaterial and irrelevant and did not constitute a defense, and that the common pleas court committed no error in sustaining the motion. This being the only error found by the circuit court in reversing the judgment of the common pleas court, we conclude that the judgment of the circuit court should be reversed and that of the common pleas court affirmed.

Judgment of circuit court reversed and that of common pleas court affirmed.

Shauck, Johnson, Wanamaker and Wilkin, JJ., concur. Nichols, C. J., and Donahue, J., not participating.  