81 P. 179 | Kan. | 1905
The opinion of the court was delivered by
The contentions of the plaintiff in error are that inasmuch as Flint and Smith acquired the warranty deed and possession of the property from her under false and fraudulent misrepresentations and without consideration she still holds the equitable title, and that, as between her and them, the deed should have been set aside; that defendant in error, J. F. Kenney, took only the equities held by Flint and Smith, and, therefore, that the deed from them to him should have been declared void.
It is forcefully argued by counsel for plaintiff in error that a purchaser under a quitclaim deed can never be a bona fide purchaser as to any person owning an equity in the property, and, therefore, that whatever claim their client could have urged against the title of Flint and Smith in a suit against them to set aside her deed might have been relied on in this proceeding, as against their grantee by quitclaim deed. There are many outstanding equities to which the title of a quitclaim deed is subject, but it cannot be so declared of all such equities, in whomsoever they may exist. It might be found that equities exist in certain persons but their acts and course of conduct have been
The rights of parties holding real estate under quitclaim deeds, as against outstanding equities, have been considered by this court in the cases of Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243, and Merrill v. Hutchinson, 45 id. 59, 25 Pac. 215, 23 Am. St. Rep. 713. In the case of Johnson v. Williams, supra, it was said:
“It may be that, with reference to some equities or interests in real estate, the purchaser who holds only under a quitclaim deed may be deemed to be a bona fide purchaser; for equities and interests in real estate may sometimes be latent, hidden, secret, and concealed, and not only unknown to the purchaser, but undiscoverable by the exercise of any ordinary or reasonable degree of diligence. ...
“We would think that in all cases, however, where a purchaser takes a quitclaim deed he must be presumed to take it with notice of all outstanding equities and interests of which he could by the exercise of any reasonable diligence obtain notice from an examination of all the records affecting the title to the property, and from all inquiries which he might make of persons in the possession of the property, or of persons paying taxes thereon, or any person who might, from any record or from any knowledge which the purchaser might have, seemingly have some interest in the property. . . .
“A person who holds real estate by virtue of a quitclaim deed only from his immediate grantor, whether he is a' purchaser or not, is not a bona fide purchaser with respect to outstanding and adverse equities and interests shown by the records or which are discoverable by the exercise of reasonable diligence in making proper examinations and inquiries.” (Pages 181-183.)
The rule there laid down was followed in Merrill v.
Before the defendant in error purchased he examined the warranty deed which plaintiff in error executed. He applied to the notary public who took the acknowledgment of the deed and to the real-estate agent who witnessed its execution, both of whom assured him that, so far as their knowledge extended, the transaction was genuine and in good faith. He visited the property and found the grantees in possession and operating the plant. The diligence thus exercised by the defendant in error to discover outstanding equities was, in so far as plaintiff in error is concerned, within the rule of the above authorities and sufficient to protect his title against the claim of the plaintiff in error. The record not only failed to contain anything from which it could be ascertained that a possible equity remained in plaintiff in error, but the warranty deed was a solemn declaration that she did not claim any equities therein.
It is doubtful whether the principle attempted to be invoked by the plaintiff in error is applicable to the facts. Even admitting her extreme contention, that the title of the holder of real estate under a quitclaim deed is subject to all outstanding equities under all circumstances, yet it is not certain that she is in a position to invoke that rule. Might not the defendant in error rely on her solemn declaration in the deed that she did not have any interest in the property, together-with the possession of her grantees, and safely invest his money? Should she not be estopped from claiming any equity against him?
For the reasons first assigned the judgment is affirmed.