La Forest v. Downer

126 P. 995 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1, 2. We are satisfied from the testimony that the plaintiff himself had no actual notice of the claim of Mrs. O’Connell nor of her possession of the premises; but if under the circumstances his agent, Beck, had actual notice, or such constructive notice as would put a reasonable man upon inquiry, such notice must, as a matter of law, be imputed to plaintiff. On behalf of the respondent, it is claimed that her continued possession of the premises after the execution of the deed to Downer was such constructive notice as to put plaintiff upon inquiry as to her rights in the premises, and that he is chargeable with notice of all facts which such inquiry would have elicited. In some jurisdictions such has been the holding of the courts. Pell v. McElroy, 86 Cal. 268; Brinkman v. Jones, 44 Wis. 498; Hopkins v. Garrard, 7 B. Mon. (Ky.) 312; Grimstone v. Carter, 3 Paige (N. Y.) 420 (24 Am. Dec. 230); I. C. R. R. Co. v. McCulloch, 59 Ill. 166. But the rule announced in these and other cases is not followed in this State. In Exon v. Dancke, 24 Or. 110 (32 Pac. 1045), the rule was stated by Mr. Justice Bean in the following language:

“A purchaser, from a vendee whose vendor remains in possession is not bound to inquire further as to the title, when he finds on record a deed from such vendor, properly conveying the title to the person from whom he is about to purchase. Any inquiry suggested by such possession is fully answered by the record, and is prosecuted sufficiently far when the examination of the record discloses a deed from the person in possession to the person who offers to sell, and who is claiming and asserting title under such deed.”

This holding is supported by a large preponderance of the decisions of other courts, which are found collated in 13 L. R. A. (N. S.) 58, in note to Garbutt v. Mayo, 128 Ga. 269 (57 S. E. 495).

3, 4. This places upon defendant Mrs. O’Connell the burden of showing that plaintiff or his agent, Beck, had some other actual notice of her claim that would have led an ordinarily prudent man to have made some ■inquiry, and that, in consequence of his failure to have done so, plaintiff is chargeable with knowledge of every fact which such inquiry would have developed. The evidence shows that the attachment of Piggott & Finch was brought to the notice of Beck, and that he hesitated to loan the money until Mrs. O’Connell in the most solemn manner assured him in writing, signed by her, that Downer was the owner of the property. No question of estoppel arises here. It is a question of Beck’s good faith in making inquiry; and, if defendant allowed herself to be persuaded to sign a paper containing what she knew was an absolute falsehood in regard to the title, she should not now be heard to say that plaintiff or his agent acted in bad faith in relying on her statements. It is a severe case for defendant, but the rule that, where one of two innocent persons must suffer, he whose negligence placed it in the power of another to inflict the injury should be the one to take the consequences, applies here with peculiar force. Mrs. O’Con-nell deceived Beck by a falsehood, and now says that he is guilty of constructive mala fides for believing her statements.

The decree of the circuit court is reversed, and a decree will be entered here for plaintiff, with costs.

Reversed.