Lead Opinion
Plаintiffs appealed from a judgment quieting defendants’ title to an undivided
Kari Anderson patented the 280 acres from the United States in 1916. In 1922, Kari convеyed the 280 acres to her four children, A.T. Anderson, James T. Anderson, Julia Anderson, and Theodore T. Anderson, as tenants in common, each acquiring an undivided one-fourth.
This dispute is only about Julia’s undivided one-fourth recеived from Kari. The plaintiffs are children of James T. Anderson’s son, George Teleford Anderson. They have record title to three-fourths of the 280 acres and claim the remaining one-fourth both through adverse рossession and through a deed from Julia to James T., dated February 7, 1934, but not recorded until December 14, 1983. The defendants, heirs of Julia's children, Ida Mathews and Willie H. Anderson, claim one-fourth of the 280 acres through a quit-сlaim deed from Julia to Ida and Willie, dated October 1, 1951, and recorded October 11, 1951.
The plaintiffs and their predecessors in interest have farmed the land since before 1936. They have paid the property taxes and satisfied a mortgage placed on the property by Kari. During this time the defendants have neither been in possession of the land, nor have they received or claimed any profits or rents from it.
The trial court concluded that the plaintiffs failed to establish adverse possession of the one-fourth interest because they and their predecessors had never ousted Julia and her hеirs from their rights in the property as co-tenants. The court further concluded that the recorded 1951 deed from Julia to her children, Ida and Willie, had priority over the unrecorded 1934 deed from Julia to James T. Andеrson because, under Section 47-19-41, N.D.C.C., Julia’s children were purchasers in good faith and for a valuable consideration. The court quieted defendants’ title to one-fourth of the property. Plaintiffs appealed.
We consider the relative priority of the 1934 and 1951 deeds under Section 47-19-41, N.D.C.C., which, in relevant part, says:
“Every conveyance of real estate not recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance, ... first is deposited with the proper officer for record and subsequently recorded, whether entitled to record or not, ... prior to the recording of such conveyance.”
Plaintiffs contended that Ida Mathews and Willie H. Anderson were not good faith purchasers for a valuable consideration in 1951. Defendants responded that Ida and Willie were good faith purchasers for a valuable consideration under Section 47-19-41, N.D.C.C., so that their 1951 deed, recorded in 1951, had priority over the 1934 deed, recorded in 1983. Relying on Sections 9-05-10 and 9-05-11, N.D.C.C.,
Although this court has often considered the requirements of notice for a good faith purchase under § 47-19-41, N.D.C.C., e.g., Williston Co-op. Credit Union v. Fossum,
Generally, for protection under a recording act as a good faith purchaser for value,' the purchase must be for a valuable and not a nominal consideration. 6A Powell on Real Property ¶ 905[2] (1988); 5 Tiffany on Real Property § 1300 et seq. (1939); 8 Thompson on Rеal Property § 4319 (1963). See cases cited in United States v. Certain Parcels of Land,
“ ‘The recording laws were not enacted to protect those whose ignorance of the title is deliberate and intentional, nor does a mere nominal consideration satisfy the rеquirement that a valuable consideration must be paid. Their purpose is to protect those who honestly believe they are acquiring a good title, and who invest some substantial sum in reliance on that belief.’ ”
We are not persuaded by the defendants’ argument that the 1951 written deed was presumptive evidence of a valuable consideration.
In United States v. Certain Parcels of Land, supra,
“ ‘That a written instrument presumes a consideration is ordinarily the rule. But, when the evidence shows thаt one has executed a valid deed to real estate, it follows that the grantor has exhausted his rights. And, when the same record shows that such grantor attempts to execute another grant to that samе real estate, it follows that the grant carries nothing. Such second grant, therefore, carries with it, in the face of such facts, no presumption of a consideration.’ ”
The recital of a nominal сonsideration in a deed is insufficient to establish a valuable consideration or to raise a presumption of value for a good faith purchase. E.g., United States v. Certain Parcels of Land, supra; James v. James,
In this case, the defendants relied on the abstract of title to establish that Ida and Willie paid Julia “$10.00 & OG & VC” for the 1951 quit-claim deed. The defendants presented no evidence of any actual consideration. See United States v. Certain Parcels of Land, supra; Horton v. Kyburz, supra; Croak v. Witteman,
Accordingly, we reverse the judgment and remand for entry of judgment quieting title in the plaintiffs.
Notes
. Section 9-05-10 says:
"A written instrument is presumptive evidence of a consideration.”
Section 9-05-11 says:
“The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avоid it.”
. In Ildvedsen, supra, this court stated the general rule that possession of the premises by a person other than the seller gives an intended purchaser notice of the possessor’s rights. The court recognized an еxception to that general rule, holding that when possession by one other than the seller is consistent with the record title, the possession is presumed to be under the record title and is not notice of any outstanding unrecorded equities. See also Dixon v. Kaufman, 79 N.D. 633,
Although the "continuing viability” of the "consistent with the record title position” has been questioned, The Unreliable Record Title, 60 N.D.L.Rev. 203, 217 (1984), we do nоt address that issue because of our disposition of this case on other grounds.
. In Croak v. Witteman,
. The source notes for § 47-19-41, N.D.C.C., sаy that it was derived from Cal.Civ.Code § 1214, which provided:
“Every conveyance of real property other than a lease for a term not exceeding one year is void as against any subsequent purchаser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded."
Cal.Civ.Code § 1214 was considered in United States v. Certain Parcels of Land, supra. Although not binding on this court, decisions interpreting a statute from which ours was derived are persuasive in interpreting our statute. Loken v. Magrum,
. Defendants cannot claim protection under the Marketable Record Title Act, Ch. 47-19.1, N.D. C.C., because they havе not been in possession of the land at any time for twenty years. Section 47-19.1-01, N.D.C.C.
. Because of our decision about deeded title, we need not address the plaintiffs’ claim of adverse possession.
Concurrence Opinion
concurring in the result.
I concur in the result reached in the majority opinion, but I am unconvinced by the rationale of the majority’s analysis of the term “valuable consideration.” However, I would not reach that question for I beliеve it is obvious that Ida and Willie could not have been good-faith purchasers in 1951, regardless of the consideration. As the majority opinion notes, the plaintiffs and their predecessors in interest farmed the land prior to 1936; they have paid the property taxes and satisfied a mortgage placed on the property by Kari; the defendants have not been in possession nor have they receivеd any of the rents and profits from the land.
Although I would not abandon the “co-tenant in possession” rule recently affirmed in Nelson v. Christianson,