Fallon v. Kehoe, 38 Cal. 44

Fallon v. Kehoe

38 Cal. 44 | Cal. | 1869

Crockett, J., delivered the opinion of the Court:

In 1847 the Alcalde of San Jose granted a lot in that town to “Darby O’Fallon.” This, however, was not the true name of the grantee, whose real name was Jeremiah Fallon, and “Darby O’Fallon” was only a nickname, by which he was generally or often called and known. In January, 1850, whilst still the owner of the lot, Fallon, for a valuable consideration, paid to him by one Murray, a brother of the plaintiff, conveyed the lot in fee by his true name, Jeremiah Fallon, to the plaintiff in this action. At the date of this conveyance, the Recording Act of this State had not taken effect, but was subsequently passed on the 16th of April of that year. After the passage of this Act, and before Fallon had made any other conveyance of the property, the deed to the plaintiff was duly recorded. It appears that subsequently, in May, 1855, the original grantee, Fallon, by a deed executed by him by the name of “Darby O’Fallon,” for a valuable consideration paid to him by Oliver Teal, conveyed the lot to the latter; that the title of Teal, by proper mesne conveyances, was afterwards vested in one Davis Divine, who, when he took the conveyance, Avell knew Jeremiah Fallon, and that he signed and executed the deed to Teal, at the request of Divine, as ‘ ‘Darby O’Fallon, ” and not as Jeremiah, and that Divine knew Darby O’Fallon and Jeremiah Fallon to be the same person; that afterwards, the defendant (Catharine Kehoe), for a valuable consideration, and in good faith, purchased the premises from Divine, who, in 1857, executed a conveyance to her, in due form, under which she immediately entered into, and has ever since remained in possession; that Divine entered into the possession when he obtained a conveyance of said lot, and continued in possession until his sale and conveyance to Kehoe. Under these facts, the question for our decision is, Which of the two—the plaintiff or defendant—has the title?

The first point for solution is, whether or not the conveyance of Fallon, by his true name, to the plaintiff, was operative in law to convey his title ? We apprehend there *49can be but little doubt on this point, and we do not understand counsel as controverting the proposition, that, if the true owner conveys the property by any name, the conveyance, as between the grantor and grantee, will transfer the title. (Middleton v. Findla, 25 Cal. 80.) The plaintiff, therefore, acquired Fallon’s title by a sufficient and valid conveyance. The Recording Act, which was subsequently passed, required all deeds, whether made before or after the passage of the Act, to be recorded, in order to operate as constructive notice to subsequent purchasers.

Section 26 provides that “every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this Act, shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.”

Section 41 provides that “all conveyances of real estate heretofore made and acknowledged, or proved according to the laws in force at the time of such making and acknowledgment, or proof, shall have the same force as evidence, and be recorded in the same manner, and with like effect, as conveyances executed and acknowledged in pursuance of this Act.” Section 25 provides that all conveyances, certified and recorded as prescribed in the Act, shall, from the time of filing the same for record, “impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice. ”

The deed to the plaintiff was duly recorded as required by the Act; and if her title is not valid, it must be by reason of her omission to perform some act not required by the statute. She has certainly performed all the conditions demanded by the statute. Having, as we have seen, a valid and operative conveyance, which was translative of the title, she recorded it in due time, in the proper office, before any rights had vested in the defendants or their grantors. What more could she have done to protect her rights? Her conveyance was from the true owner, by his true name, and when recorded it imparted “notice to all persons of the contents thereof, and all subsequent purchasers and mort*50gagees shall be deemed to purchase with notice.” The defendants, therefore, must be deemed to have had notice “of the contents” of this deed. But, it is said, this did not notify them that Jeremiah Fallon and Darby O’Fallon were the same person; and it is assumed that it was the duty of the plaintiff to put upon the record, in some form, a proper notice of this fact, in order to protect her title against a subsequent purchaser, in good faith, for a valuable consideration. We have been referred to no provision of the statute which imposed this duty upon her. In recording her deed, she did all that the statute requires, and I am aware of no principle of the common law which made it incumbent on her, in any form, to give notice that her grantor, Jeremiah Fallon, was known by the nickname of Darby O’Fallon, and that the grant was made to him by that name. It would have been better, perhaps, if the statute had contained a provision to the effect that when the owner of land conveys it by a different name from that in which he acquired it, the deed should contain a proper reference to that fact, for the security of subsequent purchasers or incumbrancers. But there is no such requirement in the statute, or at common law, and we have no power to exact conditions not found in the law. If land be conveyed to an unmarried woman, who afterward marries and becomes a widow, and then conveys the land by her last name, there can be no doubt that the record of the deed would impart notice to a subsequent purchaser; or if the name of the owner be changed by Act of the Legislature, and he afterward conveys by his new name, we apprehend there can be no doubt, as the law now stands, that his deed, when recorded, would impart notice. In such cases, the subsequent purchaser buys at his peril; and, however great the hardship which occasionally ensues (of which this case is, perhaps, an example), the remedy must be provided by the Legislature and not by the Courts. The evil is one which admits of a simple remedy. If the statute provided that if land be conveyed by a different name from that in which the grantor acquired it, the record of the deed should not impart notice to subsequent purchasers or incumbrancers, unless it contained proper recitals, showing why *51the deed is made in a different name, the difficulty would be completely remedied.

But, under the law as it now is, the judgment, in our opinion, ought to be reversed and a new trial had, and it is so ordered.

Sprague, J., gave no opinion.