99 Mo. 459 | Mo. | 1889
This is ejectment for a lot in St. Louis upon which there is a livery stable. Doyle, the defendant, Teased the property from Mr. Lucas for a period of five years, the term ending the last of May, 1884. The lease, though in writing, was never recorded. The evidence tends to show that at the expiration of the lease the parties agreed upon a renewal for four years upon the same terms, except the rents were increased from seven hundred and twenty dollars to eight hundred and
Mr. Lucas conveyed this and other property to Mr. N elson by a deed executed and recorded on the ninth of July, 1886.' Nelson conveyed the undivided one-lialf to Hammitt', and these two persons conveyed the lot in question to plaintiff Drey, by a deed dated the fourteenth, and recorded the twenty-eighth, of J uly, 1886, for the recited consideration of twenty thousand dollars. Nelson and Hammitt were to have the July rents, which were collected by Turner, who was the agent of Mr. Lucas, and paid to them. This is the only evidence tending to show that they had any notice of the renewed lease. Turner had collected the rents for several years and he says he did not know that defendant had a written lease.
When plaintiff purchased, he evidently knew the defendant occupied the property as a tenant on some terms. He says he saw defendant at the stable after he had made the purchase and paid part only of the purchase money; that he told defendant of the purchase and asked the latter what rent he would pay; that defendant said he would pay the same he had been paying to Lucas, but not a cent more, unless better improvements were put upon the property; that defendant did not then claim to have a lease; and that he, plaintiff, first heard of the written lease after he had completed the purchase, and then through defendant’s attorney.
Defendant says he told plaintiff of the lease in the conversation at the stable just mentioned; that plaintiff and another person came to the stable in the preceding
On this evidence the court gave a number of instructions, one of which is as follows:
“No. 6. By the term actual notice, as used in the instructions, the jury are not to understand that plaintiff and said Nelson must have actually seen the written renewal of said lease or been informed of its existence. Knowledge by them of facts, if they had such knowledge, as would put an ordinarily prudent person on inquiry as to the nature of defendant’s title, and lead him to discover the truth respecting the same, is equivalent to actual notice. And the court further instructs you that the fact (if it be a fact) that the defendant was in the open, notorious possession of the premises in controversy at. the date of the respective purchases by plaintiff and Nelson, and that they were aware of such possession (if it appears that they were aware of such possession) is evidence tending to show actual notice of defendant’s title.”
The defendant takes the ground here that possession by him and knowledge thereof by these purchasers is actual notice to them of his renewed lease, and that the jury should have been so instructed in terms. The instructions asked by the defendant and refused by the court all proceed upon the theory that such possession and knowledge is evidence from which the jury could infer notice, and all this is embraced in the instructions given. Having asked no instructions presenting the theory of law now contended for, he is in no position to demand a reversal because the instructions given do not ■go as far in his favor as they might have gone.
But the part of the instruction in question goes far enough*. According to our statute, “no such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until
That case came before this court again and is reported in 25 Mo. 318. The plaintiff had been in possession of a mill site with an acre of ground attached for eight or ten years, claiming under an unrecorded purchase. The defendant purchased a tract of which the mill site was a part; he had never seen the land, but his declarations were put in evidence to the effect that his grantor told him plaintiff had a mill on the land, and would have to move it now. The court in effect instructed that possession by one claiming to have previously purchased was sufficient evidence of notice of such purchase, if the possession was known to the subsequent purchaser at the' time of his purchase. ■ The instruction was disapproved, this court among other things saying: “The question of fact for the jury was whether the defendant purchased with ‘ actual notice ’ of the prior unrecorded
Maupin v. Emmons, 47 Mo. 304, was an action of ejectment. Defendants were in possession under an unrecorded deed from Hammack. Plaintiffs claimed under a purchase upon execution against Hammack, and there was evidence tending to show that one of the plaintiffs knew defendants occupied the farm as owner. The court said: “The actual notice required by the statute is used in contradistinction to the constructive notice given by a record. It does not mean there must necessarily be direct and positive evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it — facts and circumstances coming to his knowledge that would put a man of ordinary circomspection upon inquiry— should go to the jury as evidence of such notice.” The same doctrine is asserted in Shumate v. Reavis, 49 Mo. 333 and in Whitman v. Taylor, 60 Mo. 127.
“Notice,” it has been said, “maybe either actual or constructive. It is actual when the purchaser.either knows of the existence of the adverse claim ór title, or is conscious of having the means of knowledge, although he may not use them. Constructive notice is a legal presumption, and will be conclusive unless rebutted, and in many cases it cannot be gainsayed or denied even by evidence of the absence of actual knowledge or notice.” Speck v. Riggin, 40 Mo. 405; Rhodes v.
Now from the line of former adjudications of this court it is plain to be seen that the notice which will postpone a recorded instrument, affecting real estate, to a prior unrecorded one, must be actual notice. Such notice may be shown by direct evidence; or it may be inferred from facts and circumstances. The question is one of fact, and is to be determined like any other fact. Circumstances coming to the knowledge of the subsequent purchaser, which would put a prudent person upon inquiry, should go to the jury as evidence of notice. In short any evidence tending to show knowledge of the prior unrecorded instrument should be received as evidence of notice. The inference to be drawn from the facts and circumstances is one of fact and not of law. Possession and knowledge thereof will, in ordinary cases, be good proof of notice of the title under which the party in possession claims. Such evidence, under other circumstances, will be of little value. While there is, in this case, evidence showing that these subsequent purchasers knew defendant occupied the property as a tenant on some terms, there is other evidence from which they might well have concluded that he had no written lease, and was, under our statute, a tenant from month to month.
The defendant asked, and the court refused, the following instruction: “Number 10. The court declares the law to be, that the registration act is for the protection of bona fide purchasers, and, to entitle Nelson, who purchased, by deed., from Lucas, July 9, 1886, to such protection against an unrecorded lease, he must have paid a valuable consideration for the property, and this fact must be proven by other testimony than the mere recital of the deed that such consideration was paid.”
This instruction is material only in the event that the plaintiff is found to have been a purchaser with notice. If he was a purchaser with notice, he may protect himself under the purchase from .Nelson, if the ■ latter was a purchaser for value without notice. The only controverted question presented by the instruction is whether the deed to Nelson is evidence of the payment by him of a valuable consideration, for there was
Finally, it is insisted that the notice to quit is defective, because it directed defendant to yield up possession on the first of September, 1886, instead of the last day of August, of that year. The rents became due on the first day of each month. The notice to quit bears date the thirtieth of July, 1886. It begins by saying: “ Pursuant to the statute, in that behalf pro- • vided, I hereby give you thirty days’ notice, in writing, of my intention to terminate your tenancy,” and, after describing the premises, concludes, “and I require you to surrender up possession of said premises on the first day of September, 1886, pursuant to this notice.” On the service of this notice, defendant addressed plaintiff a letter, saying, in substance, “I hold a lease from Mr. Lucas, which terminates May 30, 1888, and it is my intention to retain possession until that time.”
Conceding, for the purposes of this case, that the notice should have required defendant to quit on the last day of the rental month, which was the last day of August, still, excepting Barclay, J., we are of
Besides this, when the notice was offered in evidence, it was objected to, because irrelevant, immaterial and incompetent. No other objection was made. The objection made in this court is specific, and the objections made in the trial court are too general to entitle it to be heard here. The specific objections should have been made in the circuit court. Shelton v. Durham, 76 Mo. 436. We see no reason for disturbing the judgment, and it is, therefore, affirmed.