| Wis. | Dec 10, 1897
Of course, the actual and open possession of the land by Mathews, as vendee under the unrecorded contract for the purchase of the same, as found by the court, was constructive notice to Ohafee and the world as to what his rights and interest in the land were. Meade v. Gilfoyle, 64 Wis. 25; Coe v. Manseau, 62 Wis. 82; Wickes v. Lake, 25 Wis. 71" court="Wis." date_filed="1869-06-15" href="https://app.midpage.ai/document/wickes-v-lake-6600326?utm_source=webapp" opinion_id="6600326">25 Wis. 71; Ely v. Wilcox, 20 Wis. 523" court="Wis." date_filed="1866-01-15" href="https://app.midpage.ai/document/ely-v-wilcox-6599574?utm_source=webapp" opinion_id="6599574">20 Wis. 523. But such constructive notice related primarily to the rights and inter-' est of Mathews. Thus, it has been held that where the vendee, in such actual possession, has paid to the vendor the full amount of the purchase price for the land, then such vendee by such payment becomes the absolute equitable owner. Honzik v. Delaglise, 65 Wis. 499. In the case at bar the vendee had failed to keep up the interest', much less to reduce the principal. As Wiley informed Chafee, Mathews’ interest was practically nothing. All of Mathews’ payments had been made to Wiley personally, and Mathews did not know that Wiley had transferred his notes or the contract to the plaintiff until this action was commenced. There is no pretense that Ohafee had any knowledge or reason for believing that such transfer had been made until long after he had íoaned his money to Wiley and taken and recorded his mortgage. So far as'Ohafee was concerned,,
The statute declares that “ every conveyance of real estate within this state . . . which shall not be recorded as provided by law, 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, whose conveyance shall first be 'recorded.” R. S. sec. 2241. The statute also declares that “ the term £ conveyance/ as so used, shall be construed to embrace every instrument in writing, by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding three years, and executory contracts for the sale or purchase of land,; and the term ‘ purchaser/ as so used, shall be construed to embrace every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease, or other conditional estate.” R. S. sec. 2242. From this last section it is apparent that a mere “ executory contract for the sale or purchase of land” is not a “ conveyance,” within the meaning of sec. 2241, R. S., and that the vendee in such contract is not a “purchaser” within the meaning of that section. This was held by Judges Davis and HopKINs in Curts v. Cisna, 7 Biss. 260" court="None" date_filed="1876-08-15" href="https://app.midpage.ai/document/curts-v-cisna-8630142?utm_source=webapp" opinion_id="8630142">7 Biss. 260. The ground of such decision is that such vendee must rely on the responsibility of his vendor. Id. But, as indicated, if the contract is so far executed that the vendee has entered into the open
In the absence of actual notice or knowledge of such facts as would put a prudent man upon inquiry which would lead to actual notice, Ghafee, as such mortgagee, had the right to rely on Wiley’s apparent record title in fee, subject, of course, to the rights and interest'of Mathews in possession. Ghafee was a Iona fide purchaser as against the plaintiff. Had Wiley, at the time of transferring the ten notes made by Mathews to the plaintiff, also executed and delivered to the plaintiff a warranty deed of the premises and then failed to record the same, such deed would, under the statutes cited, have been void as against the mortgage from Wiley to Ghafee so recorded in October, 1895. Since that would be so in respect to such warranty deed, it must, for a much stronger reason, be so with respect to the secret transfer from Wiley to the plaintiff, which did not rise to the dignity of a conveyance, and was not recorded nor recordable. It would be preposterous to hold that such secret parol transfer of the
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.