*1 Arlys K. Ronald A. CONDOS and (Plaintiffs
Condos, Appellants Counter-Defendants),
and Ernest TRAPP and Deborah
William (Defendants,
Gaye Trapp, Appellees
Counter-Plaintiffs, Third-Party and
Plaintiffs), and Rosalind J. Gran A.
Paul GRANGER wife, D. Lettz
ger, John husband wife, Lettz, husband
and Bonnie Wilson,
Jerry J. A. Susan Wilson wife, Ballhorn Waldo A.
husband Ballhorn, husband and M.
and Lavonne Defendants).
wife, (Third-Party 84-62.
No. Wyoming.
Supreme Court
April 1986. 28, 1986.
Rehearing May Granted Brown, Lonabaugh Riggs, W. &
Robert Sheridan, appellants. for Koester, Sheridan, appel- Robert W. lees Sheridan, Shoumaker,
Micheál K. third-party defendants Lettz and Wilson. THOMAS, C.J., ROSE*, ROO Before ** JJ., RAPER, CARDINE, NEY and J., Retired.
THOMAS, Justice. Chief must resolve The sole which we grantee, appeal is whether the loss parties agree must bear whom deficiency tract of to a attributable separate grants by a com- grantor, is to determined mon according to order of the deeds or pursuant the order of ** * November 1985. Retired November Retired *2 34-1-120, points to W.S.1977. Section 34-1- by Appellants other raised the § 120, W.S.1977, provides: issues are irrelevant and shall be ad- Appellees’ arguments.” dressed the
“Every conveyance of real estate within made, state, this hereafter which shall Lettz, In Brief the for John D. Bonnie by not be recorded as shall Lettz, Jerry Wilson, A. Wilson and Susan J. void, subsequent pur- be Defendants, Third-Party the issue good chaser or faith and stated is this: the for a consideration of valuable only party “The issue is whether the to thereof, any portion real estate or whose the of deficiency 28.8 feet is duly shall first recorded.” the first or the to record granted summary judg- The district court his deed first.” upon application in ment this case based of dissenting opinion In the the agree We with the raised is whether there is need iden- to affirm the conclusion and district court. tify among parties to Brief, Appellants’ In the the issues appeal this of a factual conclusion presented for review are stated to be the in deeds conflict occurred following: the appellees Trapps Ball- “I. Where real estate is subdivided into parties horns are not to appeal. who this parcels smaller without reference to a years prior A number of convey- plan, there insufficient land in question ances which are legal descriptions of all McNally R.W. and Lois M. McNally exe- parcels, which Grantee must bear the cuted a Certificate of for Dedication deficiency? McNally Third Subdivision located in Sheri- properly “II. the trial Court Whether County. dan irregularly Tract 19 is an applied Wyoming Statute, Recording shaped realty, tract of its southern W.S. 34-1-120 in who was straight border ais line. The certificate of the last Grantee who should bear the boundary location shows the southern of deficiency. long. Tract 19 be 1229.3 feet Subse- presented “III. Whether the affidavits quently, McNallys sold entire tract permit Defendants were sufficient to grantors to common the several deny the trial Court Plaintiffs’ Motion litigation. grantors common Judgment, Summary Partial all Grangers of these are the grant Summary Defendants’ Motion in Tract following lots 19 in the Judgment.” (1) (the order: Hammonds common Brief, Appellees’ (Trapps’) Wilsons) of the Lettzes and on June issue articulated is this one: 1975; (2) 31, 1977; the Ballhorns on March (3) presented 1978; (4)
“The sole issue
for review is
on March
deficiency
whether a
real
on March
1978. The follow-
specified
diagram
within a
tract should be borne
schematic
does
reflect the
Warranty
shape
of a
Deed
general-
true
but it does
executed
ly
relationship
last or
parties’
show
Warranty Deed
record
properties.
filed of
last. The
*3
parties
required
quitclaim
The deeds to the several
were re- were
strip
to
a 28-foot
(1)
Condoses,
in
corded
this order:
Ballhorns on of land to the
and the Condoses
31, 1977; (2)
Trapps
quitclaim
March
on March
to
strip
a 28-foot
1978; (3)
16, 1978; (4)
Trapps.
Condoses on March
of land to the
the
While
August 17,
the Hammonds on
then held a different
tract of land from
previously
they
that which
had believed
dispute
Trapps
arose
the
when
owned,
they
the tract is of the same size.
placed
a
between their
fence
Ultimately, the loss
the short-
the Condoses’. The Condoses filed a com-
fall in the area of Tract 19 must be borne
plaint against
neighbors alleging
their
that
the Lettzes and Wilsons
to
Trapps
misplaced
the
had
fence and
the
judgment
the
of the district court. The
praying
repossession
of their
land
Condoses,
ap-
Lettzes and Wilsons have
wrongfully
for rents on
the
withheld
pealed
judgment.
that
from
answered,
Trapps
from them. The
Condoses,
filed a counterclaim
parties
The
to this case are in accord that
together
third-party complaint
with a
this,
in circumstances such as
in which
against the
in
other landowners
the tract:
way
there is no other
to determine who
Lettzes, Wilsons,
actually
conveyance
of a defi-
received
seeking
quiet
disputed
their title in the
land,
cient area of
the last
must
property. Only
litigation
after the
dis-
bear the loss. The contention
any
commenced did
of these landowners
senting opinion
supports
is
the record
survey
property.
seek a
At that
way
determining
another
time it was discovered that the southern
deficient area of
received a
boundary
of Tract 19 is
1200.5 feet
need not de-
and for that reason we
long.
only question
parties have
The
to be resolved was
cide the case which the
presented.
who was to bear
loss of the 28.8 feet
in
property.
not contained
respect
In their memorandum with
Trapps
joined,
summary judgment
After
issue was
the Condoses
motions
Summary Judg-
filed a
for Partial
that the last
to record
Motion
contended
ment,
grantee. The memo-
and that was followed
a Motion identified as the last
presented
Summary Judgment
the Condoses
ad-
on all issues filed
randum which
rale,
support
posi-
the same
but the Condoses
by the
of their
vanced
grantee to receive
both the Condoses and the
contended that the last
tions
appeal,
grantee.
In this
argued
that the last
his deed is the last
Condoses,
appellants, maintain
granted summary
The district court
loss.
grantee is the
original position that the last
judgment in favor of the
and denied
Trapps, as
partial summary judgment sought by
to receive a deed.
last
contend that the
summary
appellees,
The effect of the
now
the Condoses.
comprehensive statu-
judgment was that the Lettzes and Wilsons
statutes “constitute
tory
readily apparent
It is
scheme”
mandates that the
that no
in
case
would have
notice of the
person
to record must bear
loss result-
deficiency of land in the tract
absent
deficiency
from the
land.
survey.
conflicted, and,
None of the deeds
dispute
still
recorded,
provide
if
they
even
would not
grantee,
method of
notice of the shortfall in the
A
tract.
sur-
and this is the
submitted to the
vey
parcel
individual
of land would
court for resolution.
necessarily
have
a discrepancy
revealed
were the last
footage conveyed
between the total
receive a
and the other
con-
footage
actual
contained
the tract. Be-
tend that
the loss. This
should bear
factors,
cause of these
the common law
proposed by
also would
resolution
be the
developed
exception
general
an
opinion.
dissenting
shortfall or
land in a tract
excess
*4
predecessors
were the
in
interest
grant-
equally among
should be divided
Wilsons,
the Lettzes and
recorded their
Am.Jur.2d, Boundaries,
63,
12
pp.
ees.
last,
deed
contend that the
exception
600-601. The
is that
there
when
in
loss
area must be
from their
taken
plan,
no
to a
or
is
reference
the last
grant. Authority addressing
grantee is
one
who must bear the
plentiful.
Bondhus,
Holmgren
is not
v.
alternatively
shortfall or
is benefitted
157,
(1976).
receiving
311 Minn.
247
608
N.W.2d
the excess. Often situations
peculiar
arise in
some
or
which
fact
de-
many respects
appears
this case
to be
scription
dispositive
question,
is
unique.
It
not
does
involve
of the
the courts
do
have to invoke the last
peculiarities
part
which in
were found dis-
argument
rule. No such
or cir-
positive in other cases. No deed in this
cumstance
was submitted
the trial court
clearly
Compare
instance
erroneous.
in
or this court
this
however.
Yates,
860,
Hughes v.
228 Ark.
311 S.W.2d
issue submitted
the court to decide was
(1958).
179
All the deeds described the
premised upon the last
rule and
property
Compare
in
metes
bounds.
simply
asks how the last
will be
Bondhus,
Holmgren
supra;
v.
v.
Waldorf
identified.
it the
Is
last
receive
deed
Cole,
251,
(1963).
61 Wash.2d
one who
last received his deed has been
opportunity
had an
changed by
recording statute,
our
34-1-
avoid the loss which now must be
attrib-
120,
This statute appropriately
W.S.1977.
uted to their
by seasonably re-
has been identified as a race-notice
cording; and,
they
since
failed to take ad-
(Frank Hicks,
speaks
It
for itself
Wyo.
4
vantage of that opportunity, they and their
502,
475,
denied,
reh’g
35 P.
35 P.
subsequent grantees
must bear the loss
(1894)),
and it means that a
attributable to the shortfall
in this in-
first,
given
recorded
priority
presentation
stance.
argument
Absent
prior
property
deed to the same
record
grounds
resolution,
alternative
ed last.
Stoffers, Wyo.
Hawkins v.
hold that in an instance in which a tract of
denied,
reh’g
Wyo. 245,
276 P.
conveyed by
land is
separate deeds to sev-
(1929);
Mileski,
P. 76
Dame
Wyo.
eral
and later is discovered to
protects
between the (contrary and Ballhorn to the other conveys deeds as and shown 288.8 feet of the south the crosshatched border from a road area above. bordering on the west of Trapp tract 19. Because deed states that it is convey- the tract contains 28.8 feet less on the beginning ance of land 643 feet west of the assumed, south Trapp border than was corner SE of tract 19 and includes 297.45 and Ballhorn attempt convey along feet the south border west from the strip strip same i.e. the beginning point. way This in no conflicts 911.6 and 940.4 feet from the SE corner. with the Hammond or Condos deeds be- grant cause those deeds a total of 643 feet As between the Ballhoms and the border, of the south west from the SE Trapps, conveyance Ballhoms’ Trapp corner. The deed does recorded; conflict with first made and first it should the Ballhorn deed. The prevail, Ballhorn deed is Trapp and the west 28.8 feet of the pass portion conveyance conveyance should be held void and no to void title to the conveyances was never one of a number of of “the same real The strip estate.” result, conflicting This based on the Trapps land between the deeds, rely obviates need for us to on above, described is the real estate argued by par- rule” the “last which was twice. As to this liberty adopt ap- ties. We are at strip, were argue, do proach, which the although are not to do so. who recorded their deed after Triangle (i.e. Highway prior purchasers State Commission v. the Ballhorns Development Company, 371 P.2d strip). As Chief Justice Blume stated opinion plac- of the court states that Chicago Ry. City & N.W. Co. v. shortage upon the Hammonds’ suc-
Riverton, Wyo. 663 cessors is fair because the Hammonds’ fail- (1952), prevented ure to record their deed the oth- strictly “were we to limit our decisions grantees er three from literally arguments advanced there was insufficient land to all by counsel in a the law in this conveyances. opinion is incorrect. jurisdiction sorry state.” would be Trapp beginning point deed describes a keep “There is no secret the reason feet west of the SE corner encom- proper applicable just law to a case be- passes feet another 297.45 further west. cause Meuse-Rhine-Ijssel overlooked.” Recording Trapp the two deeds east of the Breeders LTD v. Y- Cattle Canada conveyance would have told them no more Corporation, Wyo., Tex knew, they already prop- than i.e. erty began 643 feet west of the SE corner if majority Even the proceeded A west another 297.45 feet. applies, correct that the “last rule” review of would have disclosed these deeds purchase, Trapps, the last to should be conveyance no conflict or of the same real and should considered hand, if estate. On the other places majority suffer the loss. The and had had reviewed the Ballhorn deed shortage upon burden of the the successors tract, they survey commissioned by identifying to the Hammonds the Ham- would have discovered that the Ballhorn monds as the last under the re- in- their deed and' conflicted with statute, 34-1-120, cording W.S.1977. parcel of volved a of the same But the statute should not have Trapps’ surveyor land. The would have been as between *7 begun his measurements at the SE and or the and Hammonds. tract, starting comers of the entire NW 34-1-120, W.S.1977, provides: Section deeds, points descriptions in the “Every conveyance of real estate within caught the error. he would have made, state, hereafter which shall re- majority concedes that the While required by as shall not' be recorded terms, act, fix the cording by its does not void, subsequent pur- against any as Trapps’ and the priorities between the good faith and chaser or successors, majority never- for a valuable consideration of the same Hammonds’ any portion thereof, policies of the real estate or concludes that the theless duly shall be first re- whose recording are advanced if the Ham- act added.) (Emphasis corded.” punished. One of monds’ successors are majority is “to policies by offered conveyances of “the The statute voids policy as this.” But this avoid losses such any portion real estate or thereof” same in this case because would not be advanced against subsequent purchasers who record timely recording everyone concedes that a By placing burden first. changed not have by the Hammonds could the court has used the statute Trapps’ purchase decision to and there- tions purpose. to advance that Our record- fore would not have avoided this loss. ing act creates a forfeiture sanction which is to be only in limited circumstanc- Another by majority offered es. Until a conflicting transaction has oc- protect “to those who record first.” One involving piece curred the same ask, however, who is this “first” re- grantee has perfectly valid title and should protected corder recording from? The act relinquish not be forced to any of merely prop- his intended to erty even if he immediately does not “impart purchaser notice record.
of instruments which affect the title to a specific land in tract which the subse- “Notwithstanding important benefits quent purchaser is interested at by recordation, achieved title to real (Emphasis by time.” the Kansas Su- property may be transferred delivery Court.) preme Evans, Luthi v. 223 Kan. of a deed recording.” without 6A Pow- ell, supra, at 82-14. priority between competing in- “[A]s The act purchaser does not force a to for- terests to the same property from the feit just some of his tract because he grantor, the constructive notice af- late, records and we should not create such forded the deed’s recordation is suffi- a novel rule. Even under majority’s give cient to priority grantee” rule, “last act competing after-acquired interests.” applied. should not be added.) (Emphasis Powell, 6A R. Powell purchase last to all the other Property 11904[3], on Real at 82-13 to parties and should lose theory under the 82-14 time, right.” “first first Those who record first pro- are to be I would reverse. tected from acquired others who have competing interest in the same land.
Finally, majority states that the re-
cording designed act is to establish certain-
ty in records and purpose that this is ad- holding
vanced in this case. While
certainty act, in records purpose is a
we should not create extra-statutory sanc-