24 Or. 110 | Or. | 1893
delivered the opinion of the court.
This is a suit to declare a deedj absolute in form, to be a mortgage, and for leave to redeem. The facts are that on April 30, 1885, H. C. Carmack, John Kenworthy, C. C. Hall, and John S. Simmons, at the request of John Exon, the husband of plaintiff, borrowed of the First National1 Bank of East Portland, on their individual note, the sum of one thousand and fifty dollars, and delivered the same to Exon to enable him to pay off and discharge certain indebtedness of his then due and owing. In order to secure and save them harmless from any loss by reason of having given this note, the plaintiff and her husband made, executed, and delivered to them a warranty deed for the premises in controversy, which belonged to plaintiff, and upon which there was at the time a mortgage for about one thousand two hundred dollars in favor of one Pearcy, which deed was duly recorded in the records of Multnomah County. At the time of the execution and delivery of the deed, Carmack, Kenworthy, Hall, and Simmons executed and delivered to John Exon, the husband of plaintiff, a defeasance, or instrument in writing, by the terms of which they agreed that in the event of Exon’s paying, or causing to be paid, their said note and interest, according to its terms, with all taxes assessed on the land, and in all things saving them harmless by reason of making the note, they would reconvey the premises to Exon or his assigns, but this defeasance was not recorded. The plaintiff remained in the open, exclusive, and notorious
Assuming, but without deciding, that the conveyance from plaintiff and her husband to Kenworthy and his associates, as between themselves, was a mortgage, and not a conditional deed, we shall proceed to examine the only question we deem material in the case, and that is, whether the possession by plaintiff at the time of the purchase by Dancke was sufficient to put him upon inquiry as to her equitable title, or charge him with notice of her claim to the property. By section 3029 of Hill’s Code, it
As a general rule the authorities declare that open, notorious, and exclusive possession and occupation of real estate by a stranger to the title is sufficient to put a purchaser from a vendor out of possession upon inquiry as to the legal and equitable rights of the. party in possession: Stannis v. Nicholson, 2 Or. 333; Bohlman v. Coffin, 4 Or. 313; Petrain v. Kiernan, 23 Or. 455 (32 Pac. Rep. 158.) But whether this rule applies to a purchaser from a vendee whose vendor remains in possession, after having put upon record a deed conveying the title, properly executed) acknowledged, and recorded, the authorities are in conflict. In Pell v. McElroy, 36 Cal. 268, which is a leading case upon the subject, the court discusses the question at
We are of the opinion, however, that the reason, as well as the decided preponderance, of the authorities is to the effect that a purchaser from a vendee whose vendor remains in possession, is not bound to inquire further as to the title, when he finds on record a deed from such ven
And in Crasson v. Swoveland, 22 Ind. 434, under a statute identical with ours, in discussing the question now before us, the court said: “But it is claimed that as it was found that Swoveland was in possession of the land at the time WAitney purchased it, this was constructive notice. As a general proposition the doctrine that possession of real estate is constructive notice to all the world of the rights of the parties in possession, is conceded. But the doctrine has no application to the case before us. * * * Our statute on the subject of registry * * * requires actual notice to defeat a purchaser where the defeasance has not been duly recorded. Possession has never been held anything more than consíructive notice. Such constructive notice does not come within the statute. This is in accordance with the authorities. Says an elementary writer: ' Nor will the continued possession by the grantor of land, after the making of his deed, be notice of a defeasance held by him which is not recorded’: 1 Wash. R. P. § 22.” In McCulloch v. Cowher, 5 Watts & Serg. 427, it is held that possession of land is notice of every title under which the occupant claims it, unless he has put upon record a title inconsistent with this possession. Mr. Bigelow, in
Upon a review of the whole case, in the light of the authorities, we are of the opinion that Dancke, in the