21 Mo. 313 | Mo. | 1855
Lead Opinion
delivered the opinion of the court.
1. The argument that the death of Beatie should have suspended all proceedings under the mortgage, in analogy to the suspension of all process of execution under the administration
2. We do not see the force of the argument that the mortgage and the agreement to postpone the sale, are to be regarded as one instrument. It may be so ; yet the registry act is to be considered. If it requires an instrument to be recorded, and it is not done, the party guilty of the negligence must suffer the consequences. Beatie had his agreement in his pocket, and if he failed to put it upon record, it was his own folly. An innocent purchaser cannot be made to suffer for his neglect. The deed conveyed to Butler the land, with a power of sale. As the estate was in him entirely, it is impossible to see how the death of Beatie could affect his power over it. The distinction! between the mere grant of a power and of an estate is obvious to every member of the profession, and is recognized on alii occasions. Where there is a mere grant of power, the death of the grantor of the power extinguishes it. It cannot be exerted-,, because when exercised, the act relates back to the date of the-power; and as the author of the power is dead, he can do no-act. To give it effect, would produce the absurdity of making, a dead man do a valid and binding act. But, when the estate-is granted, coupled with a power, then it is as though it belonged to the grantee, and was his own property. His conveyance at law is binding and effectual, whether he conforms to.
We do not consider that the cases in which it has been held that a sale under a satisfied judgment was void, are in point. Here, there was no extinction of the debt. It remained and was unsatisfied. Neither the debt nor the power was extinguished. It was a mere question of time. The deed, as recorded, showed that the power might be exercised. If there were any impediments to its exercise, the ignorance of those impediments was caused by the laches of the grantor, and the consequences of his neglect cannot be visited on an innocent purchaser.
We do not see that the case of Jackson v. McKinney, (3 Wend. 234,) has any application to the controversy under consideration. There was no question made in that suit as to notice or the registry of deeds. The case turned entirely on the effect of a deed of conveyance under the statute of uses. That, too, was an action of ejectment.
3. We cannot perceive what the doctrine of notice has to do with this case. There is no one claiming an interest in the land in controversy but the heirs of Beatie. If Beatie were alive, could he set up any equity in himself, growing out of the fact that he had a tenant on the land ? Beatie had no equity as against the purchaser under Butler. How can the fact that Beatie had a tenant on the land give him an equity ? If the estate conveyed by him was justly sold, so far as the purchaser, Fowler, was concerned, even admitting that notice of the tenant’s title was notice to him of Beatie’s title ; it was Beatie’s
But the possession of the tenant, if notice at all, was only notice of his own right, not of that of his reversioner. This seems to be the settled doctrine. (2 Sug. 293. Flagg v. Mann and others, 2 Sumner, 557.) In this case, there is no tenant who is opposing the right acquired by Fowler, under the proceedings of the mortgagee to foreclose the mortgage.
4. But we do not consider that, under our statute regulating conveyances, that possession by itself can be considered as any hind of notice. If the fact of an adverse possession is brought home to a purchaser, it may be evidence to be left to the jury, with other circumstances, to receive that degree of weight to which they may think it is entitled. But mere possession of itself is no notice, either actual or constructive, under our statute of conveyances. This conclusion is arrived at, not by overthrowing English or American cases on this subject, but by giving to our statute that construction its language and spirit require.
It is a requirement of our statute that every instrument in writing that conveys any real estate, or whereby any real estate may be affected in law or equity, be recorded; and no such instrument can be valid, except between the parties thereto and such as have actual notice thereof, until it is recorded. In
Our statute uses the words “ actual noticeP Now what is aetual notiee, and how is it to be proved? What is actual notice, we conceive, is a question of fact for a jury. When this is said, we suppose the matter is made sufficiently explicit. The jury will only find the facts when such evidence has been submitted to them as produces the conviction that a purchaser was really aware of the existence of the instrument which he seeks to defeat at the time of his purchase. Now what evidence is it to a jury that a purchaser had notice of the title of another in possession, when it is not shown that he was aware of the fact that there was an adverse possession. The fact that another is in possession, when known to a purchaser, may be submitted to a jury, in connection with other circumstances, to show that he had actual notice of an adverse title. But the mere fact itself, with nothing more, cannot, as we conceive, tend, in the least, to a conviction that there was any notice, such as is required by the statute. Actual notice does not require positive and certain knowledge, such as seeing the deed; but that is sufficient notice, if it be such as men usually act upon in the ordinary affairs of life. When it is shown that purchasers are affected with a knowledge of such circumstances, then the foundation is laid from which the inference of actual notice may be drawn. ( Curtis v. Mundy, 3 Metc. 405.) In the states of Maine and Massachusetts, there are registry laws similar to those found in our code. In legislating upon the subject now under consideration, they require “ actual notice," in order to affect a subsequent purchaser, with knowledge of a prior unrecorded deed, and these words, in their acts, receive the interpretation that has been given them in the preceding observa
What has been said in relation to the doctrine of notice, is only intended to be applied to the notice alluded to in our statute concerning conveyances, or, in other words, to that notice which is set up to affect or defeat a subsequent purchaser or incumbrancer of an estate in favor of one holding the same or asserting an interest therein, under a prior unrecorded deed or instrument of writing. The learning in relation to notice, as applied in various other transactions, sometimes being founded on equitable notions, sometimes depending on considerations of policy, is not designed to be affected by any of the foregoing remarks.
5. We cannot say that the advertisement of the sale of the premises by the mortgagor, was not made in compliance with the terms of the deed. The deed required that the property sold and the place of sale should be described in the advertisement. The property was advertised to be sold in the town of St. Joseph. It is objected that this was too vague a description of the place of sale. It is not pretended that there was any sacrifice of the property, growing out of the vagueness of the description of the place of sale. The administrator of the
Concurrence Opinion
I concur in affirming the judgment, but do not concur in that part of the opinion relating to notice from possession under our statute.