31 Wis. 389 | Wis. | 1872
Lead Opinion
The following opinion was filed at the January term, 1872.
The conveyances from Wilcox to Taylor, from Taylor to Milo Sykes, from him to Byron Sykes, and from the latter to Wallace Mygatt, were effectually “ wiped out ” by the judgment of July 18th, 1859. From thenceforth those conveyances, and the record thereof, ceased to have any force or effect as evidence of title in the respective grantees therein named, or either of them, or as notice to subsequent purchasers from Wilcox. The court which rendered that judgment had
We see no good reason why, under these circumstances, Babcock did not take a perfect title to the premises in controversy. Suppose tbe plaintiff’s claim of title was founded upon an unrecorded conveyance from Wilcox directly to Edgar Gr. Mygatt, or even directly to tbe plaintiff, of tbe existence of which Babcock bad no notice when be took tbe conveyance from Wilcox. In such case there can be no doubt that Babcock would bold tbe premises under bis recorded conveyance, by virtue of tbe recording act. K. S., cb. 86, sec. 25. We think tbe case as it stands involves tbe same principles — that there
Our conclusion is, that tbe deeds to Edgar Gr. Mygatt and to tbe plaintiff, respectively, are void as against tbe subsequent conveyance to Babcock, wbicb was first recorded; Babcock being a purchaser in good faitb and for a valuable consideration. It necessarily follows that tbe conveyance of the premises, executed by Babcock to tbe defendant, vested a good title thereto in the defendant, and that tbe judgment of the circuit court was properly in bis favor.
These views render it unnecessary to decide tbe other questions discussed in the arguments of tbe respective counsel, with a single exception. In adjusting the costs, the taxing officer-allowed an item of sixty dollars for an abstract of title ; and, on a review of tbe taxation, the circuit court, pro forma, ap proved tbe bill thus taxed, and allowed tbe item to remain therein. We do not think that tbe cost of an abstract of title is a taxable disbursement. The examination of the records for tbe purpose of ascertaining tbe state of tbe title seems to be the proper duty of tbe attorney, and if, for convenience, some other person is employed to perform such duty, we are aware of no statute wbicb authorizes the expense thereof to be included in tbe taxed bill of costs. Unless, therefore, tbe defendant remits tbe amount of that item, there must be a retaxation at tbe cost of tbe defendant, and tbe objectionable item stricken out. But this does not work a reversal of the judgment.
By the Court. — Judgment affirmed.
Tbe appellant moved for a rehearing, and his counsel, Messrs. Mariner, Smith & Ordway, contended that a judgment is operative only between parties and privies pendente lite and post litem (Gray v. Schenck, 4 Coms., 461; Story’s Eq. Pl., Redf. ed., § 72 ); that to affect tbe title to land by a judgment, the owner of tbe land must be a party to the action (Hodson v. Treat, 7
Rehearing
Counsel for the plaintiff move for a rehearing of the question upon which this case has been decided, and state several well received and undoubtedly correct general propositions of law, which they claim have been violated in its decision.
There can be no doubt of the general correctness of the rule that the judgment of a court is only operative between parties and privies pendente lite and post litem,.
Neither can it be questioned as the settled law of this state, generally applicable, that, in order to affect the title of land by the judgment of a court, the owner of the land must be made a party to the action by service, actual or statutory.
And in like manner it is not to be controverted as a well established general rule, that all men are presumed to know the law, and that no man will be heard to plead ignorance of it.
It is a proposition asserted in the former opinion, and necessary to the conclusion arrived at by the court, as well as that here contended for by counsel, that the judgment of the circuit court of July, 1859, was a public record, of which every man, grantee of Seymour Wilcox, who would invoke that record in aid of his title, must be held to know the contents. There is no disagreement between the court and counsel on this proposition, and we entirely concur with them when they say that “this judgment is a record, and a record of as much solemnity as the recorded deed of all the parties to the action, and a record through which the defendant claims.” In fact, it is ¡orovided by statute that all judgments, decrees and orders rendered or made by any court affecting the title to land, may be recorded in the office of the register of deeds in like manner and with like effect as deeds or other instruments of conveyance. Laws of 1859, ch. 157, sec. 1; 2 Tay. Stats., 1149, § 35.
The main question presented on this argument seems to be,
It is a conceded fact that the title was out of Wallace My-gatt and in Edgar Gr. Mygatt by the deed dated July 15, 1854, but which deed was not recorded until November 11th, 1868. Edgar Gr. Mygatt conveyed to the plaintiff in this action by deed dated September 10th, 1858, also not recorded until November 11th, 1868. The suit in which Wilcox recovered the judgment was commenced August 13th, 1858. Wallace My-gatt, the person appearing of record as the owner of the land at the time the suit was commenced and the judgment obtained, was a party to the suit, but neither Edgar Gr. Mygatt nor the plaintiff, in whom the title then was, were such parties. The presumption is, that neither Edgar Gr. Mygatt’s former title nor the plaintiff’s then present one were known to Wilcox, the plaintiff in the action, and hence neither of them was made a party to it.
Counsel lay hold of the facts that the plaintiff was in truth the owner, and was not a party to the suit; and then applying the rules of law first above stated, insist that the judgment had no effect whatever upon the plaintiff’s title. By itself considered, and looking upon what may have been the mere operation of the judgment as between the plaintiff in it, Wilcox, and the plaintiff in this action, Hoyt, this position may be eorrect. Had Hoyt then at once brought ejectment against Wilcox, he might
But it is not alone with reference to the sole or separate operation of the judgment as between the parties to it, or limited to such parties, that the question is now to be examined. Other facts and circumstances have since intervened, other parties have become interested, and other rights accrued, which involve the application of other rules and principles of law than those which merely concern the effect of the judgment according to the general limitation restricting it to parties and privies. It is in connection with the registry law and its effect upon land titles that the operation of the judgment must now also be considered. By omitting to record his deeds (by this I mean both the deed to and that from Edgar G. Mygatt), Iloyt, by acquiescence and silent admission at least, represented to the world, or to any person having an interest or proposing by purchase or otherwise to become interested in the title to the land, and who had no actual knowledge to the contrary, that Wallace Mygatt was the true and lawful owner of it. Bv omitting to record his deeds, he tacitly asserted and became party to the representation made by the record with respect to
And here come in with very great power the rules of law invoked by counsel, that every man is presumed to know the law, and that the judgment was a public record of equal solemnity with a recorded deed, of which every person interested in the title of the land was bound to take notice. These rules apply as well to the plaintiff in this action as to the defendant. The plaintiff, Hoyt, was bound to know that by his laches he was suffering the title of record of his grantors, the chain which connected him with the source and alone gave him an estate in the land, to be broken and sundered, and the evidence of its formerly having existed to be blotted out and expunged from the public records of titles. The effect of the judgment of a court of competent jurisdiction setting aside and nullifying a conveyance of record of land is no less than if such record was actually effaced from the register’s books. It becomes as if no such conveyance had ever been executed, or ever been recorded. If one were to imagine, or if such were the mode of proceeding prescribed by law, that, instead of signing the judgment, the books of the register were to be brought into court, and the record there obliterated by the judicial hand or under the direction of the judge, the act would be in no respect more efficacious or enduring in its results than it is by the method now pursued by law. Hoyt was bound to take notice of the judgment, and to know its effect in law upon the recorded evidence of title as between the parties to it, ostensibly the trae owners and as it would be looked upon by a stranger negotiating for and purchasing the land of Wilcox after the title of record had thus been restored to him, and he had again become invested with the apparent ownership of the land. It is a presumption
Holding the present plaintiff, therefore, concluded or estopped under the circumstances by the judgment, the effect of the judgment and of the subsequent conveyance was, as stated in the former opinion, as if Wallace Mygatt had conveyed to Wilcox, and Wilcox to Babcock, who purchased, paying a valuable consideration, without notice of any defect in or adverse claim to the title; both which conveyances were recorded before the recording of the prior deeds of the plaintiff. The effect of the judgment was even greater and more to the disadvantage of the plaintiff than that. It was to strike out and extinguish the conveyances under which Wallace Mygatt claimed, and to show that he had no valid title which he could transfer to the plaintiff. It left the title of the plaintiff apparently without chain or connection with, the original, but beginning with a party who had no right, legal or equitable, to the land.
Enough has already been said, perhaps, to indicate our views as to the position of counsel that the subsequent purchaser from Wilcox was bound to know or to ascertain at his peril that the true owner of the land was a party to the action by Wilcox to set aside the deeds. He was undoubtedly bound to know that fact so far as the records disclosed it. In purchasing of Wilcox it was the right and privilege of the purchaser, given and encouraged by law, to indulge in the same presumption as to the completeness and verity of the records as had "been indulged by Wilcox, and rightly, in the commencement and prosecution of his suit. The records informed the purchaser, as they had previously informed Wilcox, that the owner of the land had been made a party to the suit, and was concluded by the judgment.
' And this answers the second question or objection presented by tbe argument, arising upon the language of the judgment,
With respect to the point that the court was without jurisdiction of the subject matter, because the outstanding title of the land was in the plaintiff or in his grantor, Edgar Gr. Mygatt, at the commencement of the action, neither of whom were made parties to it, we make the additional observation, that, under the registry law and so far as it may be necessary to protect the titles of subsequent purchasers in good faith who are within it, it is sufficient if the court has apparent jurisdiction to operate upon the title. It is by the title as it appears of record that purchasers and suitors, having no different knowledge or information, are governed; and it is no more necessary, for the purpose of the title so shown by the record, that the court should lay its hand upon the actual title in order that a subsequent purchaser under the judgment may be protected, than it is that the grantor in the common case should have actual seisin and title of the land to protect the purchaser under his conveyance. The fact is, the grantor has no title, and yet, by default of the true owner to record his deed, the registry law operates to give the grantee a good title. So it may be, technically, with respect to the jurisdiction of the court, and yet its judgment operates, or may operate, under the registry law, to secure a valid title
It is said that Babcock was not a purchaser for a valuable consideration. We think he was. He converted what, was before a loan of money into a payment for the laird, and took and recorded his deed.
It is furthermore said that the plaintiff should have the opportunity of showing that Babcock purchased with actual knowledge of his, plaintiff’s, deed. The plaintiff had that opportunity on the trial. Being himself the party in the wrong, by omitting to record his deed, the burden was upon him to show the fact, if it existed. Fraud or bad faith on the part of the subsequent purchaser, under such circumstances, will not be presumed. The defendant denied the title of the plaintiff, and likewise pleaded title in himself. He proved both issues when, with the other evidence, he produced the deed from Wilcox to Babcock, which was recorded before the deeds under which the plaintiff claimed, and then introduced the deed from Babcock to himself. It was then incumbent on the plaintiff to impeach the conveyance from Wilcox to Babcock, if he could do so on the ground of bad faith in, or the want of a valuable consideration paid by, Babcock. The defendant was not required to plead either the good faith of Babcock or that he paid a valuable consideration for the land. Bad faith, or notice of the plaintiff’s adverse title, or a want of consideration which would defeat the conveyance to Babcock, were affirmative facts, of which, if the plaintiff would have had the advantage, he was required to give evidence at the trial. Wood v. Chapin, 13 N. Y., 509; Shotwell v. Harrison, 22 Mich., 410. In the latter case, the majority of the court make a distinction between the proof of notice and the proof of payment of valuable consideration, holding as to the former that the burden rests upon the party asserting title under the unrecorded deed, but that as to the latter, the subsequent purchaser whose deed
By the Court. — Motion for rehearing denied.