59 Wash. 62 | Wash. | 1910
Plaintiff, Julia Daly, and Joseph P. Daly were married at Chicago, Illinois, in December, 1888. About
Appellant relies upon the cases of Dane v. Daniel, 23 Wash.
The facts in this case, in our judgment, are wholly insufficient to put respondents or their grantors upon notice. The record title stood in the name of Joseph P. Daly. The community had never occupied the property, nor had there been any conveyances or instruments of record which would indicate any ownership other than that of Daly, and he had, by the most solemn assurance, represented and acknowledged himself to be a single man. It is not shown that respondents
“There must appear to be, in the nature of the case, such a •connection between the facts discovered and the further facts to be discovered, that the former may be said to furnish a •clue — a reasonable and natural clue — to the latter.” Birdsall v. Russell, 29 N. Y. 220, 250.
See, also, Johnson v. Erlandson, 14 N. D. 518, 105 N. W. 722.
In McFarland’s Adm’r v. Louisville & N. R. Co., 130 Ky. 172, 113 S. W. 82, it was urged, as in this case, that the defendant well knew the facts or “that the said knowledge was easily accessible to him.” The court said:
“The fact that a person could learn of a thing is not' equivalent to knowledge, especially where the facts alleged do not show that there was anything to put him upon notice.”
In Michigan it has been held — Millar & Co. v. Olney, 69
“This court has never gone to the extent that, solely upon, failure to inquire of the mortgagor as to prior incumbrances- or prior conveyances, one is to be charged with notice of such, incumbrances or conveyances; and we are aware of no case in-any court that holds to this doctrine. The extent to which the cases have gone is that, where the fact of a prior conveyance or incumbrance is brought to the knowledge of the subsequent purchaser or incumbrancer, he must be held to take subject to such prior conveyance or incumbrance, or, when, such circumstances are shown to exist as would put an ordinarily prudent business man upon inquiry as to such prior-conveyance or incumbrance, then he is charged with notice of' such facts as upon inquiry he could have ascertained; but where circumstances alone are relied upon, with no proof of' actual knowledge, they must be of such character that failure-to make the inquiry amounts to bad faith.”
In that case, as in this, it was not shown that there was the least intimation or hint from any source that a third party had any interest in the property.
When these rules are considered, in connection with the-fact that the husband and wife were living separate and apart, she in a distant state, and that the property had been acquired and sold by the husband in defiance of the community’s rights, if it be held that a community exists under such circumstances, it would seem that , respondents exercised the diligence put upon ordinarily prudent persons, and are entitled to claim as bonafide purchasers under the statute. This case is easily distinguished from Dane v. Daniel, where-the property has been formerly occupied by one of the parties and his wife. They had made a number of conveyances as
“A purchaser must, no doubt, exercise due diligence to ascertain the status of his several grantors at the time they acquired and conveyed the property, but he is not bound to go outside of and beyond the record to ascertain whether any such grantor had an equity in the premises before he acquired his title, and whether he was married or single when such equity was acquired. If such were the case, records and deeds would be of little avail, and the evils resulting from the adoption of such a rule would far outweigh any benefits to be derived from it.”
In her reply brief appellant contends that, in any event, the case should be reversed and the respondents put to the proof of bona fides. It is not denied that respondents’ grantor was a purchaser for value, or that the record title was clear. This raised the presumption that the purchaser was without notice, and put the burden on appellant to prove notice of her equity. '
“Proof of such payment, in the absence of proof of notice, or of any fact sufficient in law to charge notice, or sufficient to put the purchaser upon inquiry, will raise the presumption that his purchase was without notice, and the onus will be upon the one asserting an equity in the property to prove notice thereof to such purchaser.” Williams v. Smith, 128 Ga. 306, 57 S. E. 801.
See, also, Atkinson v. Greaves, 70 Miss. 42, 11 South. 688, and cases cited; 13 Ency. Evidence, 901.
In Millar & Co. v. Olney, supra, it was said:
“We are of the opinion that there is nothing shown in this case that would have put an ordinarily prudent business man on inquiry, and that there was no question of fact to go to the jury for a finding upon this part of the case.”
For the reasons assigned, the judgment is affirmed.
Rudkin, C. J., Fullerton, Morris, and Gose, JJ., concur.