82 Kan. 358 | Kan. | 1910
The opinion of the court was delivered by
The defendant challenges the correctness of the fourth, fifth and sixth conclusions of law. The challenge must be sustained. The fourth and fifth conclusions upon which the court predicates the judg
Although the language of our recording act has been changed since the decision in Coon v. Browning, supra, the present statute has exactly the same force and effect as the former. This, in effect, was held in Holden v. Garrett, 23 Kan. 98. The reason of the rule that the burden of proof as to the payment of a valuable consideration rests upon a subsequent purchaser is that while the recital in a deed that the consideration has been paid is prima facie evidence, as between the parties, it is no evidence against a stranger. (King v. Mead, 60 Kan. 539; Doty v. Bitner, post.)
As to notice, it will be observed that the rule is equally well established that the burden is on the one who claims under the prior unrecorded deed. At least, this is true as soon as it is established that the subsequent purchaser parted with value. Many of the courts take the view that the burden of proof as to the good faith of the subsequent purchaser shifts as soon as the last purchaser has shown that he paid a valuable consideration. (Morris v. Daniels, 35 Ohio St. 406; Iron Co. v. Iron Co., et al., 105 Iowa 624; 23 A. & E. Encycl. of L. 523, and cases cited in note.) As soon as it appears that a valuable consideration has been paid the presumption arises that the purchaser acted in good faith and without notice of the rights of the parties who claim under the unrecorded deed. In Morris v. Daniels, supra, it was said:
“The rule in such case is entirely analogous to that which obtains in relation to commercial paper, and rests on the same principle. The indorsee of negotiable paper before due must prove the payment of a valuable consideration as soon as it is shown that the instrument was made without consideration, or was obtained by fraud.” (Page 417.)
In the present case the court assumed, in the absence of evidence to the contrary, that the subsequent purchaser paid value and took the title to the note and mortgage without notice of the defendant’s interests. This was error. • Until there was proof that the purchaser paid a valuable consideration there was no presumption of good faith. Of course, before the subsequent purchaser can take advantage of the failure of the prior purchaser to record his deed, he must be
From the findings of fact it appears that the bankruptcy court ordered the note and mortgage sold as personal property at public sale in May, 1900, and that it was offered for sale at that time in pursuance of the court’s order, but no sale of it was made because of lack of bidders. It does not appear by what authority the trustee proceeded to sell the same more than a year afterward at private sale, and the question of his authority to sell it when he did may have a bearing in determining the good faith of the plaintiff in the transaction. The whole case turns upon this proposition, and, since there was no evidence to support the conclusion of law that the plaintiff purchased for a valuable consideration and without notice, the judgment must be reversed and a new trial ordered.