Ely v. Wilcox

| Wis. | Jan 15, 1866

Downer, J.

Is the appellant a purchaser in good faith and for a valuable consideration, without notice, of the land in dispute ? This is an action in equity, brought before the code went into effect. The pleadings are those of the former chancery practice, and we think must have the same construction, force and effect as they would have had before the code. The appellant plead that he was a purchaser in good faith, for a valuable consideration, without notice, and accompanied his plea with an answer denying the allegations in the bill necessary to be denied. The complainant filed a replication to the plea and answer. The replication was an admission of the sufficiency of the plea itself, as much so, as if it had been set. down for argument and allowed; and if the facts stated in the plea were proved, a dismission of the bill at the hearing or trial, whether the plea was in fact good or bad,' should have followed as a matter of course. Hughs v. Blake, 6 Wheat., 472; Story’s Eq. PL, § 697. It appears to us that the evidence sustained the plea, unless there was constructive notice to the appellant of the respondent’s title. We are inclined, however,' to the opinion that the plea is good, and that the evidence pri-ma facie proved the appellant was a purchaser in good faith, for value, without actual notice of the title or claim of the respondent. Still, when the respondent urges that there was no evidence that the lands covered by the mortgage, the release of which was the principal consideration for the conveyance to the appellant, were of any value, or that Nathaniel G. Wilcox was able to pay a single dollar of the debt of $9500 secured thereby, we feel relieved from examining the questions he raises as to the value of the lands or the solvency of Nathaniel, by the fact that the sufficiency of the plea was passed upon by the counsel of the appellant, when they filed their replication; and although they might, if they had erred in filing it, at any time thereafter and before the trial of the cause, and perhaps even at the trial, have obtained leave tQ withdraw it, they did not do so, and even now do not maintain that the plea is insufficient. But it is clearly so if the evidence as to the consideration or actual notice is insufficient; for the evidence is as broad as the plea.

We come now to the question of constructive notice by the appellant. It is maintained by the plaintiff that the record of each of the deeds, to wit: that of Matson to Ely — -the mortgage of Ely to Matson — the deed of Ann Matson to Ely, and the deed of Matson and wife to Ely, made after the conveyance to Nathaniel Green Wilcox, was constructive notice to the appellant of the title of the respondent.

The deed of Matson to Ely was made in Minnesota, November 1, 1854, and was acknowledged before a notary public of that territory, but had no certificate of a clerk or other officer attached thereto, under his seal, that the notary was such and that his signature was genuine, as required by the R. S. 1849, ch. 59, secs. 9 and 10. Eor want of such, certificate the deed was not authorized to he recorded under the provisions of that chapter; and the authorities are to the effect that the record thereof was not notice to the appellant. The same is true of the record of the mortgage made by My to Matson.

The deed of Ann Matson to My, dated Nov. 10, 1854, contained nothing to show that she was the wife of John Matson, to whom the patent issued for the land; aüd if the appellant had had actual notice of this deed, it is doubtful whether it would have been sufficient to have put him upon inquiry. But constructive notice could only affect him with notice of the deed, or to the extent of the title conveyed, which is at most the contingent right of dower of Ann Matson, which is not the title in dispute — certainly not a sufficient title to enable the plaintiff to maintain this bill.

But the more difficult question arises under the record of the deed of John Matson and wife to Dly, of January 23, 1856, which was in due form of law, and made and recorded after the deed of Matson and wife of the same lands to Nathaniel 6r. Wilcox, and before the latter conveyed them to the appellant. Nathaniel Wilcox knew of the rights of the plaintiff when he purchased, and was a fraudulent grantee, and if the record of this last deed to Dly was constructive notice to Dwight Wilcox, the judgment of the circuit court should be affirmed.

In Massachusetts it is held that in searching the title it is not necessary to search the record, as against an antecedent grantor of the land, further than the registry of a deed duly executed by him, and that when such a deed has been registered, a purchaser under the grantee will not be affected with notice of a prior deed recorded subsequently but before the period of his purchase. Connecticut v. Bradish, 14 Mass., 296" court="Mass." date_filed="1817-09-15" href="https://app.midpage.ai/document/state-of-connecticut-v-bradish-6404623?utm_source=webapp" opinion_id="6404623">14 Mass., 296; Trull v. Bigelow, 16 Mass., 418; Somes v. Brewer, 2 Pick., 184. And the reason given is, that when a purchaser is examining his title in the registry of deeds, and finds a good conveyance to his grantor, he is not expected to look farther. The authorities are uniform to the effect that the registry of a deed is notice only to those who claim through or under the grantor hy whom the deed was executed; and that a purchaser is not hound to take notice of the record of a deed. executed hy a prior grantee, whose own deed has not heen recorded; and when the deed of a vendor is not recorded, the record of a mortgage given by a vendee is not notice. There is great force in the reasoning which sustains the Massachusetts decisions. But it is held in New York that the record of a prior deed, though not recorded till after the second deed and before the conveyance by the vendee in the second deed, is notice to a purchaser from/kim, not only of the first deed, hut such notice that he is bouhd to inquire whether the grantee in the second deed was a borla fide purchaser. Jackson v. Post, 15 Wend., 588" court="N.Y. Sup. Ct." date_filed="1836-10-15" href="https://app.midpage.ai/document/jackson-ex-dem-merrick-v-post-5514666?utm_source=webapp" opinion_id="5514666">15 Wend., 588; Van Rensselaer v. Clark, 17 Wend., 25" court="N.Y. Sup. Ct." date_filed="1837-05-15" href="https://app.midpage.ai/document/van-rensselaer-v-clark-5514720?utm_source=webapp" opinion_id="5514720">17 Wend., 25. It is difficult to see any good reason for carrying the doctrine of constructive notice to that extent, and holding that constructive notice only is sufficient to put a vendee on inquiry. And in the case of Day v. Clark, 25 Vt., 402, is laid down what seems to ns the more reasonable rule, that the record of the prior deed after the second, is notice to a purchaser from the vendee in the second, that there is such prior deed, hut the record thereof is no notice that the vendee in the second deed, at the time he received it, had notice of the first deed, and without such notice the title of the purchaser from the vendee in the second, hut first recorded deed, would not he affected hy the fraud or knowledge of his vendor. No decision that we have been able to find has gone so far as we are asked to go in this case, to hold that a deed actually made as well as recorded after the deed to a fraudulent grantee, is constructive notice to a purchaser from the fraudulent grantee to charge him with a knowledge of the title and equitable lights of the vendee in the las made and recorded deed. If we should so hold, then any vendor of land might; after he had conveyed to a bona fide purchaser, put on record a dozen deeds of the same land to different purchasers, and each of these would be a cloud upon the title. Eor these reasons we hold the record of the deed of January 23, 1856, to Ely, not notice to the appellant.

The next question is, whether there was such possession by Ely at the date of the deed to the appellant as to be constructive notice to him of the plaintiff’s title. The burden of proof was on the plaintiff to prove such possession. He has failed to prove that either he or any one under him was in actual possession of the premises or any part of them at the date of the deed. The rule is, that possession, to be notice, must be open, visible, exclusive and unambiguous; not liable to be misunderstood or misconstrued. Patten v. Moore, 32 N. H., 384, and authorities there cited. The paintiffhad no such possession.

The payment of taxes and laying the land out into city lots, if the appellant had been informed thereof, might have been sufficient to put him upon inquiry; but no such information was given him before his purchase, and any record of the plat would come under the rule already mentioned, that a purchaser is not bound to take notice of the record of a deed executed by a grantee whose own deed has not been recorded.

We have thus gone through with the points on which the plaintiff rests his case, and we find none on which we can sustain the judgment of the circuit court.

By the Court. — -The judgment of the court below is reversed, with directions to dismiss the bill.