176 N.W. 744 | S.D. | 1920
Plaintiff who is appellant here brought an action in the circuit -court of Beadle county to quiet title to a quarter section of land in that county. Defendants, among other things, pleaded facts by way of counterclaim-, and demanded that title be quieted in defendant McPherson. The trial -court made findings and conclusions, and entered! a judgment quieting title in McPherson. Plaintiff appeals, assigning errors in the reception and rejection of evidence, alleging insufficiency of the evidence to sustain the findings, conclusions, and judgment, and error in overruling appellant’s motion for, a new trial.
Prior to August i, 1911, plaintiff was the owner of the land in controversy. On that day he conveyed said land to one J. H. Sutphen, by warranty deed, which deed, was filed and recorded on August 2, 19111. On July 7, 1911, one Helen A. Brown had begun a suit against plaintiff Frank >M. Brown, and on April 9, 1912, recovered judgment for $i,ii54'5. From this judgment plaintiff perfected an appeal to the Supreme Court, and Sutphen became surety- on the appeal bond, obligating himself to pay the amount of the judgment in the event of affirmance by the Supreme Court. On the 7th day of July, 1913, said judgment was affirmed. Thereafter a suit was begun in the circuit court of Beadle county by Helen A. Brown against Sutphen as surety, to recover upon said undertaking, and on the first day of October, 1914, judgment was filed and docketed against Sutphen in the sum of $1,35845. Upon this judgment execution was issued and levy made upon the land in controversy , as the property of Sutphen, and the same was thereafter duly sold at public auction to Helen A. Brown for $1408.37, whereby said- judgment was fully satisfied of record. A certificate of sale was issued to -Helen A. Browin, as purchaser, and filed and recorded on January 25, 191*5. Thereafter said certificate was assigned to the defendant Joseph J. Depner, which assignment was filed and recorded on March 16, 1916. On the same day Helen A. Brown also executed and delivered to Depner a quitclaim deed o-f her interest in said land, which was filed and recorded on April 8, 1916. On the 9th day of March, 1916, Sutphen and his wife executed and delivered to the defendant Depner a quitclaim deed of said land, which was also duly filed and recorded on April 8, 1916.' No redemption having been made, the sheriff of Beadle countyj on the 29th day of March, 1916, executed and delivered to the defendant D’eptier a sheriff’s deed, which, was duly filed andi recorded on the-8th day of April, 1916. Prior to all these transactions, the plaintiff had mortgaged said land to secure
Appellant further contends that the execution sale at which Helen A|. Brown purchased the land was absolutely void, for the reason that the execution appears to have been issued prior to the filing and docketing of the judgment and prior to the making up and filing of the judgment roll. In the view we take of this case, this question is immaterial.
Section 592, Revised Code 1919, declares that:
“Every conveyance of real property * * * is void as against any subsequent purchaser or incumbrancer * * * in good faith and for a valuable consideration whose conveyance is first duly recorded.”
Section 1575, Id.:
“When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person * * * not having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the count}' where the property is situated.”
Under -the latter section, actual notice of the existence of the particular facts which would render the title defeasible is required, while, under the former, the rights of a subsequent purchaser or incumbrancer may be defeated as against a prior unrecorded transfer or incumbrance by his knowledge of facts or circumstances sufficient to put him upon inquiry, though without actual knowledge of the existence of the prior transfer or incumbrance.
In other words, under the latter section, implied notice is not -deemed sufficient to defeat the rights of a subsequent, purchaser or incumbrancer, -while, under the former section, either actual or implied notice may defeat his rights, even though his instrument be ..first recorded. We are here directing attention to the distinction between the two sections (§§ 592 and 1575, Rev. Code 1919) without regard to the form of the conveyance to subsequent grantees contemplated by sections 549, 550, Rev. Code 49.19, relating to the effect of quitclaim deeds, which cannot be defeated- except by actual notice or knowledge of a prior unrecorded conveyance affecting the title to the land. Shultz v. T-idrick, 26 S. D. 505, 128 N. W. 811. Appellant is here contending that his deed to Depner, which on its face purports to be an absolute conveyance, is in effect a mortgage, or defeasible, and for that reason this deed comes directly within the purview of section 1575, supra.
We find no prejudicial error in the record and, as the trial court reached a correct conclusion, the judgment is affirmed.