Statement of the Case. 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 and purchaser without notice. 1. A sale of real estate in a partition proceeding, under order of 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 Statement of the Case. 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 Statement of the Case. 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 neither 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, Statement of the Case. 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 sale 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. Opinion of the Court. 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 |