23 S.D. 329 | S.D. | 1909
Lead Opinion
This cause comes before 'the court upon an appeal from the judgment of the trial court in favor of the plaintiff, and from an order denying a-new trial.
This’ action seems to be the sequel of Lund v. Thackery, 18 S. D. 113, 99 N. W. 856, and reference is-made to said-cause for a statement of the facts therein, and the opinion of this court upon such facts.
Upon the trial of the case at bar, which trial was had before the court without a jury, the court ma'de its findings of 'fact, from which 'it found the facts as shown in Lund v. Thackery, supra, and found the following in addition thereto: At the time of the commencement of said action of Rund v. Thackery, to wit, on November 24, 1902, the plaintiff, Rund, filed a notice of lis pendens, but did not serve his 'summons withi.n 60 days, as required by the Code. Rund sold the land to the plaintiff herein a few days after the filing of the said notice of lis pendens. Plaintiff had in his hands, at the time of such purchase, an abstract of the title to such land, showing the deed from G. W. Thackery to his brother, as well as the purported deed from- said Thackery to Rund, which abstract showed the Rund deed first in date of execution, but ¡ses-ond in date of recording. Plaintiff had no actual notice of the suit of Rund v. Thackery until long after his purchase. There is no claim by plaintiff, or any finding, to the effect that he ever made any. investigation or inquiry concerning the deed from Thackery to his brother, o'r as to the apparent defect in his grantor’s title. After the final decision in Rund v. Thackery, Amos Thackery reconveyed the land to G. W. Thackery, and it appears that the conveyance to Amos Thackery was without consideration, and was with notice on the part of Amos Thackery of the said imperfect deed whidh G. W. Thackery had signed; and the recon-veyance to G. W. Thackery was without consideration. The above
We do .not think it any wise necessary to discuss the effect of the recording acts on the rights of either party; although, -considering the question of records alone, the defendant Thackery i's certainly in the better position. We will treat this cause simply as it: stands, regardless of the recording acts. These facts were known to plaintiff when he took the Lund deed and p-aid the consideration therefor: that his title was derived through the deed of G. W. Thackery to Lund; that after -the date of said-deed to Lund, Thackery had attempted to convey this land to' his brother -by a deed which would apparently convey all of Thiaclcery’s 'ifiteiest' in said land, and purported to convey á fee-simple title thereto. It is admitted by the plaintiff and respondent tha-t, as between Lund and Thackery, Lund acquired no title to the land in question by his deed. Did the plaintiff, who knew of the deed to Amos Thaclc-.ery, in law have notice that his grantor, Lund, had received no title to- said land from G. W. Thackery? We think he had such notice. If G. W. -Thackery had learned that plaintiff was Contemplating the-purchase -of this land, and before the close of such purchase had written, or told him'by word of mouth, that he had never conveyed said land to Lund, we think no person would
In case of Chicago, etc., v. Wright, 153 Ill. 307, 38 N. E. 1062, it is held: “In law that is notice of a fact which would provoke a reasonably prudent man to such inquiries as, pursued with reasonable diligence, would lead to full knowledge.” Or, as was said in Kennedy v. Green, 3 Mylne, K. 722: “When a person has sufficient information to lead him to a fact, he shall be deemed-conversant with it.” Or as stated by Baron Alderson in Whitbread v. Jordan, 1 Younge & Coll. 303: “When a party, having knowledge of such facts as would lead any honest man, -using ordinary caution, to make further inquiries, does not make, but studiously avoids making, such obvious inquiries, he- must .be taken to have moti-ce of those facts, which, if he had used ordinary diligence, he would have readily ascertained.” If plaintiff had made inquiry of Q. W. Thackery, and Thackery had refused, or failed, to advise him of the defeqts in Lund’s title, then plaintiff would be in a position where, admitting knowledge of facts sufficient to put him on inquiry, he could plead estoppel. As was well said in Doyle v. Teas, 5 Ill. 250; “This law [of notice]- will not permit him to shut his eyes when his ignorance is to benefit himself at the expense, of. another, when he would have .had them open and inquiring had the consequence of his- ignorance been detrimental to. himself and advantageous to the other.” The rule of law applicable to the faqts on this -.case is well stated in. 2 Jones on Law of Real Property in Conveyancing, as follows: “When-it,is shown that a purchaser .had knowledge of facts sufficient, to put him-on inquiry as to the existence of some right or title in conflict with
The judgment of the lower court and the order denying a new trial are reversed.
Concurrence Opinion
(concurring specially). I concur in the opinion of the majority of the court in reversing the judgment of the circuit court, but I prefer to place my concurrence upon the ground that, as the deed of George W. Thackery to Amos Thackery was recorded prior to the deed from George W. Thackery to Lund, the plaintiff had constraotive, if no,t actual, notice that the title of the property, at the timé he purchased the same from Lund, was presumpively in Amos Th,ackery, and, the title being apparently in Amos Thackery, the plaintiff had constructive; if not aqtual, notice sufficient to require him to make the necessary investigations as to Lund’s title before making !the purchase.