96 P. 140 | Kan. | 1908
The opinion of the court was delivered by
The tax deed being void, the title of the parties to the land in controversy must depend upon their respective quitclaim deeds. Drury was the owner and conveyed the premises first to Ennis, and afterward to Wagner for Tucker. Upon this situation Ennis contends that Wagner, having taken a quitclaim ■deed, obtained thereby only such interest in the land as his grantor, Drury, held at the date of the conveyance, which was nothing, as the latter had previously
The rule concerning the rights of persons holding real estate under quitclaim deeds is not the same in all jurisdictions, but in this state it has been frequently considered and may be regarded as settled. Whoever takes ■ a quitclaim deed is notified by the very limitations in the conveyance that the grantor does not undertake to convey a full title to the premises. This limitation is a sufficient suggestion that other interests may be outstanding to place the grantee upon inquiry as to what such possible interests may be. It may be stated, therefore, that as a general rule the holder of such a deed takes the land conveyed subject to all outstanding interests and equities shown by the records and such as are discoverable by the exercise of reasonable diligence. A quitclaim deed, however, will convey the present interest of the grantor in the premises as effectually as any other instrument. The chief distinguishing feature between this kind of a deed and other, forms of conveyance is that it furnishes notice to the grantee of outstanding, interests and equities additional to those of which constructive notice is imparted by the public record. If the grantor holds the full title to the premises, a quitclaim deed will convey the complete estate; if there are outstanding unrecorded interests or equities of any kind, the conveyance will be subject to such of these as a reasonably diligent search would discover. If there be outstanding unrecorded equities or interests, however, which are unknown to the purchaser, and which can not be ascertained by a reasonably diligent search, and the purchase is made in good faith and for value, then the conveyance will take precedence thereof. The degree of diligence necessary to give this preference will depend upon the cir
Tested by the rule recognized here, we think the district court properly found that the quitclaim deed from Drury to Wagner conveyed the premises free from the claim of Ennis under the older, unrecorded deed. The situation of the parties and the circumstances of the transaction show that Wagner was deceived by both Drury and Ennis, and was thereby induced to make the purchase. This suit, which involved the title to the land in question, was pending; Wagner was the attorney for the plaintiff, Tucker; and Ennis was the attorney for Drury. So long as the suit was pending Wagner might, and naturally would, think that Ennis was in good faith representing the interest of his client, and that the client continued to be the owner of the land in litigation. Nothing has been shown which would justify the suspicion on the part of Wagner that the land had been sold by Drury to his attorney and that the litigation was being continued under its- original style to accomplish the purposes of such attorney. The circumstances under which Ennis acquired his deed from Drury, arid his subsequent conduct of the lawsuit, were well calculated to conceal his interest in the land, so that no reasonable amount of diligence upon the part of Wagner would have enabled him to discover it.
On the other hand, Ennis knew that Tucker desired to buy the interest of Drury, and might negotiate therefor with him directly, but with this knowledge the
The letters written by Ennis after Wagner had obtained the deed from Drury could not, it is insisted, have influenced Wagner in making the purchase. These letters were probably admitted for the purpose of showing why the deed from Drury to Ennis was not recorded, and the general purpose on the part of Ennis to keep that conveyance from the knowledge of-Wagner.
It is also urged that the deed from Drury to Wagner is void because made in violation of sections 2091 and 2092 of the General Statutes of 1901, which make it a crime to convey real estate with intent to defraud prior purchasers or other persons, and also require persons who make conveyances to mention therein all prior instruments which may have been made relating to the same lands. We are unable, however, to see how these sections apply to this case, as there is no evidence of an intent to defraud on the part of either party. The only evidence upon this subject was that of Drury, who testified that he supposed when he made the second deed that the first one had been recorded and no one would be deceived or misled by the later one.
Complaint is made that Ennis took the deposition of Drury, whose testimony proved unsatisfactory and disappointing to such an extent that he declined to offer it in evidence, and the defendant in error was thereupon
It is further contended that Wagner was not a purchaser for value, having only paid $40 for the deed. We can not consent to this conclusion. We do not understand the rule to be that a purchaser for value must necessarily give an adequate price. •
There are other questions discussed by the plaintiff in error, but in the view we have taken they are not material, and need not be considered. We find that the interest in the real estate held by Ennis under his quitclaim deed was a secret and concealed equity, of which Wagner had no notice or knowledge when he received the deed from Drury, and the existence of which could not, by the exercise of any reasonable degree of diligence, have been discovered by him; and that the latter was a purchaser in good faith and for value. We therefore conclude that the purchase by Ennis, though prior in time, is subsequent in right to that of Tucker.
The judgment of the district court is affirmed.