Thalheimer v. Lockert

88 S.W. 591, 76 Ark. 25, 1905 Ark. LEXIS 5

• Court: Supreme Court of Arkansas
• Decided: June 10, 1905
• Status: Published

Opinion

McCulloch, J.,

(after stating the 'facts.) Appellee and Smith both testify to the same effect that under the purchase appellee should have 40 acres of land, and that the deed should have described it. As against Smith, appellee’s right to a ref ofmation of the deed is clearly established; the only question in dispute being whether Mrs. Thalheimer under her subsequent purchase took without notice.

Smith testifies that when he agreed with Thalheimer (who made the trade as agent of his wife) for the sale, he informed the latter of his previous sale of 40 acres to appellee, and that he proposed to sell the remainder. At the time of appellee’s purchase, there was open and in cultivation on the place about 15 acres, all but about two acres being on the 23-acre tract (fractional southwest quarter of northwest quarter). The remaining two acres of open land were in the same inclosure, but on the southeast quarter of said northwest quarter. Appellee at the time of his purchase occupied the land as Smith’s tenant, and immediately after his purchase he moved the east line of his fence so as to enlarge his inclosure and include about eight acres of the southeast quarter of the northwest quarter. He cleared several acres of this addition to his inclosure, and was occupying the whole when Mrs. Thalheimer purchased. She purchased without any actual notice of appellee’s occupancy, and appellee did not place his deed of record until after the sale to Mrs. Thalheimer. But she was informed by Smith that he had previously sold 40 acres to appellee, and, when she purchased, appellee was in actual, open and visible possession of eight acres of the land- which Smith conveyed to her. Such possession was equivalent to actual notice of the title, rights or equities of the occupant. Hamilton v. Fowlkes, 16 Ark. 340; Jowers v. Phelps, 33 Ark. 465; Sisk v. Almon, 34 Ark. 391; Bird v. Jones, 37 Ark. 195; Rockafellow v. Oliver, 41 Ark. 169; Atkinson v. Ward, 47 Ark. 533; Watson v. Murray, 54 Ark. 499; Kendall v. Davis, 55 Ark. 318; Strauss v. White, 66 Ark. 167. Mrs. Thalheimer purchased, therefore, with notice of appellee’s equities, and the reformation can be enforced against her. .

Appellee claims in his complaint 40 acres off the west end of the south half of the northwest quarter, and the court so decreed by reforming the deed so as to embrace 17 acres off the west side of the southeast quarter of the northwest quarter, in addition to the fractional southwest quarter of the northwest quarter; but the testimony of appellee and Smith both shows that according to agreement he was to have 40 acres in the southwest corner of the quarter section, and the decree should have been for a reformation according to that agreement. However, appellants contested the right of appellee to any reformation at all, and raise no question as to this variance, so we will not disturb the decree on that account.

Decree affirmed.