Hartman v. Butterfield Lumber Company

In December, 1892, Esau Harness received a patent from the United States for 160 acres of land in Lincoln county, Mississippi. On January 28, 1893, he conveyed to the Norwood & Butterfield Company all the pine timber on the land 'and a right of way through and across the land for roads, trams, or railroads, 100 feet wide.' This instrument was filed for record February 10, and the complainant below (defendant in error here) subsequently obtained a deed from the Norwood & Butterfield Company. On January 30, 1893, the patentee conveyed his entire interest in the land as security for supplies and merchandise to be furnished by Hartman, the plaintiff in error (defendant below), during the year 1893. This deed was filed for record January 31, 1893. On December 14, 1894 the trustee therein named sold and conveyed the land to Hartman.

This suit was brought in the chancery court of Lincoln county, Mississippi, to establish the prior right of the complainant to the timber and right of way. The bill charged that the defendant had actual notice of the conveyance from the patentee to the Norwood & Butterfield Company when he accepted the trust deed from the patentee, and therefore that he was subordinated in right to those claiming under the first conveyance, although it was not placed on record until after the execution and record of the deed of trust. It appeared in the testimony that, prior to the patent, the patentee had contracted with the Norwood & Butterfield Company to convey to it the timber and right of way. He himself testified that he had made such a contract, both before and after he had received the patent. The supreme court of the state, deciding in favor of the complainant (82 Miss. 494, 100 Am. St. Rep. 644, 34 So. 328), considered the effect of the contract made before the patent upon the validity of the subsequent conveyance to the Norwood & Butterfield Company, saying:

'We are driven to the conclusion that the decree of the court below must have been the result of an opinion that the agreement between Esau Harness and the grantor of appellant that, in consideration of the advance money to perfect his homestead entry and get his patent, Esau would sell the timber on the land in controversy, was against public policy and void, and made void also the subsequent sale of the timber to reimburse for that advance. We are not in accord with that view. U.S. Rev. Stat. §§ 2290, 2291, 2296, U.S.C.omp. Stat. 1901, pp. 1389, 1390, 1398, with Gould & Tucker's notes, vol. 1, p. 537. On the testimony we cannot escape the conviction that the appellee had such notice as should put any reasonable man on inquiry, which would have disclosed the existence of the conveyance of the timber and right of way by Esau to the grantor of appellants.

'Reversed, and decree here in accordance with the prayer of the bill.'

Mr. Pleasant Z. Jones for plaintiff in error.

Mr. Holmes Conrad for defendant in error.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court: