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occasions observed that there was a crop growing on the land, and that teams and persons were working thereon putting in and caring for the crop, C. and her lessee were charged with knowledge of all the facts which she might have learned by inquiry as to complainant's rights and possession, and therefore purchased subject to complainant's rights under the lease, though it was not recorded.

While possession of land is in itself prima facie sufficient notice of the possessor's rights, whether it is actually known to the adverse party or not, such presumptive notice, like that arising from any fact putting one on inquiry, may be rebutted by proof showing that an inquiry duly and reasonably made failed to disclose any legal or equitable title in the occupant.

Where a third person is in possession of land, failure of a purchaser to make due and reasonable inquiry as to his rights is regarded as an intentional avoidance of the truth which it would have disclosed, depriving the purchaser of his character of a bona fide urchaser.

Any appropriate acts of occupancy, openly and notoriously done, are sufficient to put one on inquiry as to the possessor's rights in the land occupied.

Complainant was in open and active possession and held a valid unrecorded and unexpired lease of an Indian allotment at the time it was purchased by defendant C. from the Indian allottee with notice of complainant's rights. Defendants went on the land, plowed and seeded a portion, claimed the crops grown thereon, and intended to carry them away. C. leased the land to defendant B., to whom complainant gave immediate warning to quit, but without effect. Held, that complainant was in and entitled to the exclusive possession of the whole of the leased premises, not as a mere "scrambling" possessor, but under a valid lease; that defendants were trespassers; and that complainant was entitled to an injunction to protect his possession and crops, and was not restricted to an action for damages.

(Opinion filed, January 17, 1912.)

Appeal from Circuit Court, Roberts County. Hon. FRANK MCNULTY, Judge.

Suit by Charles Huffman against Mary E. Cooley and another. Decree for complainant, and defendants appeal. Affirmed.

J. J. Batterton, for appellants. E. J. Turner and Fuller & Fuller, for respondent.

McCOY, J. In this equity case findings of fact and judgment were made and rendered in favor of defendants. Plaintiff moved for new trial, which motion was granted, and defendants appeal,

urging as error that the trial court erred in granting a new trial and setting aside and vacating the report of the referee and judgment. It is the contention of appellants that the evidence submitted on the trial was wholly insufficient to warrant the court in granting plaintiff the relief by injunction prayed for in the complaint, and that therefore the court erred in granting a new trial and in vacating the judgment of dismissal upon the merits. We are of the opinion that appellants' contention is not well founded.

[1] The allegations of the complaint in this action are sufficiently broad to warrant equitable relief by injunction upon two grounds: First, for threatened carrying away of and interference with crops grown on the premises in question. Second, for interfering with the free use and enjoyment of leased premises thereby tending in part to destroy plaintiff's leasehold estate. It will serve no useful purpose to further refer to the pleadings. It appears that one Mireau, a Sisseton Indian, was in possession of an Indian allotment quarter section of land, under the laws of the United States. The Department of the Interior has long recognized the right of the Indian to lease his allotted lands, providing it is done by and with the consent and approval of the Indian Department and the Secretary of the Interior. It appears from the evidence in this case that this Indian so leased his allotment quarter section of land to plaintiff for the period of three years from February 20, 1908, by a written instrument duly consented to and approved by the Indian Department and Secretary of the Interior, and which instrument entitled plaintiff to the exclusive possession and enjoyment of the use of said land for three years from said date, as against said Indian, Mireau, and all others claiming under him with notice; the said lease never having been recorded. It appears that in May, 1908, plaintiff entered into the possession of said leased premises under and by virtue of the said lease, and farmed said land during the season of 1908, raised a crop of flax thereon, which flax was stacked and in bunches on said land, and on September 9, 1908, plaintiff moved a threshing machine on said premises and was engaged in threshing said flax on the 10th day of September, and for some days thereafter. On the 10th day of September, 1908, the defendant Mary E. Cooley, by and

through her agent, John A. Cooley, legally purchased said leased land from Mireau, and thereafter leased the same to the defendant Bickford for the season of 1909; that the said John A. Cooley during the summer of 1908, prior to the purchase by him of said land for the defendant Mary E. Cooley, observed upon several occasions that there was a crop growing upon said land, and that teams and persons were working thereon putting in and caring for said crop. John A. Cooley, himself, testified that he saw the land in controversy frequently, that he owned land in 1908 adjoining the same, and was there to see the crops and noticed the crop on the land in question, saw teams working and putting in the crop in the springtime, but never made any inquiry of the Indian, Mireau, if the land was leased; knew some one was farming the land in question during the year 1908, but made no inquiry as to who it was.

Under this state of facts, the defendants were as fully and well notified of plaintiff's rights and leasehold title under said lease as if said lease had been duly recorded, and any entry, or attempted entry, on said premises by defendants, under the deed by the Indian, Mireau, to defendant Cooley, delivered on September 10, 1908, was in violation and destruction of the plaintiff's leasehold right. Defendant Cooley, prior to the making and delivery of the deed to her, was in possession of knowledge which put her upon inquiry as to the plaintiff's rights under said lease, and defendant Cooley was thereby put upon inquiry concerning the grounds and reasons of plaintiff's occupation, and is presumed to have knowledge of all the facts she might have learned by means of an inquiry duly and reasonably made. Betts v. Letcher, I S. D. 182; 46 N. W. 193: Bliss v. Waterbury, 131 N. W. 731; Pomeroy's Eq. Jurisprudence, §§ 614, 615: Gale v. Shillock, 4 Dak. 182, 29 N. W. 661.

[2] Prima facie, the possession is of itself sufficient notice, whether it is actually known to the other party or not; but the presumptive notice from possession, like that arising from any fact putting one upon inquiry, is subject to rebuttal by proof showing that an inquiry duly and reasonably made failed to dis

close any legal or equitable title in the occupant. Betts v. Letcher, supra; Riley v. Quigley, 50 Ill. 304, 99 Am. Dec. 516; Fair v. Stuvenot, 29 Cal. 486; Williamson v. Brown, 15 N. Y. 354.

[3] A failure to make such inquiry, however, is regarded as an intentional avoidance of the truth, which it would have disclosed; and voluntary ignorance, under such circumstances, effectually deprives the subsequent party of the character of a bona. fide purchaser. Betts v. Letcher, supra; Thompson v. Pioche, 44 Cal. 508.

[4] Any appropriate acts of occupancy openly and notoriously done are sufficient to put one upon inquiry. Clearing an acre of land out of 60 acres of timbered land, and renting it to a person residing on an adjoining tract, who cultivates it-growing and cutting willows on land every year for basket making-running a plowed furrow around a tract of prairie land, is sufficient. Betts v. Letcher, supra; Wickes v. Lake, 25 Wis. 71; Banner v. Ward (C. C.) 21 Fed. 820; Buck v. Holt, 74 Iowa, 294, 37 N. W. 377. Actual possession entitles the occupant to the same rights he would acquire by the recording of the instrument under which he claims. Higgins v. White, 118 Ill. 619, 8 N. E. 808; Banner v. Ward, supra; Nolan v. Grant, 51 Iowa, 519, I N. W. 709. One in actual possession of a part of a tract of land is in legal possession of the whole covered by the title under which the actual possession is taken. Nolan v. Grant, supra; Gale v. Shillock, supra; Richie v. Owsley, 137 Ky. 63, 121 S. W. 1015.

[5] Plaintiff was in, and entitled to, the exclusive possession of the whole of said leased premises, and the entry of defendant had the effect of excluding plaintiff from and interfering with his use and occupation of a portion of said premises under said lease, independent of the question of carrying away crops grown thereon. The acts of defendants in going upon said lands and plowing and seeding the same and making claim to the crops grown thereon by defendants was excluding plaintiff from his rights under his lease, and amounted to a destruction of his leasehold interest, which defendants had no lawful right to do.

Under the circumstances of this case, defendants were willful and malicious trespassers and could acquire no title to the grain

grown by them on this land in violation of plaintiff's rights. They could not gain any advantage by virtue of their own wrong. While there may be a lack of evidence in this case to justify an injunction for carrying away or attempted and threatened carrying away of crops grown by plaintiff on said leased land, there is ample evidence to justify the inference that defendants intended to carry away the grain grown on the ground by defendants. The very fact that defendants plowed and sowed the land is sufficient to show they intended to remove that portion of the crop. The testimony shows that defendant Cooley employed one Asplund to plow on this land in the fall of 1908, and that plaintiff, when he discovered him plowing there, went to Asplund and inquired of him what he was doing there, and he said Cooley had him there; that plaintiff told Asplund that he had a lease on the land and that he did not want Cooley plowing there; that plaintiff endeavored to find Cooley, but could not find him; that he went to Bassett's place to see him, where he had been informed he was staying; that he made many inquiries for Cooley, but was unable to find him. Plaintiff also informed defendant Bickford, prior to his acquiring any interest therein, of his lease, and that he claimed the land under the lease, and he was informed that Cooley considered plaintiff's lease no good. The plain import of this testimony is that plaintiff was at all times objecting to the entry of defendants on this land. He may not have expressed his objection in the same manner as would have a technical practitioner at the bar; but nevertheless he was at all times telling them that he was insisting on his rights under his lease, and that he did not want Cooley to plow there. In order to protect his legal right, he was not required to drive them off with gun or bludgeon; neither was plaintiff required to fly into court with a lawsuit, in order to protect himself against the claim that he was guilty of laches, after he had thus notified defendants of his rights under the lease and that he did not want Cooley to plow on the land. Another plain import of this testimony is that defendants were interfering with the occupancy, enjoyment, and use of, and crowding plaintiff off, and excluding him from, this land with the intent

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