28 Kan. 7 | Kan. | 1882
The opinion of the court was delivered by
“It is a general and just rule, that when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss, even without any possible fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the misfortune. A man can scarcely be cheated out of his property, especially of real estate, in such a manner as to give an innocent purchaser a right to hold according to the principles which have been mentioned, without a degree of negligence on his part which should remove all ground of complaint. Suppose him to be prevailed upon by fraudulent representations to execute a deed without asking advice of friends or counsel, he has locus*15 penitentice when he goes before a magistrate to acknowledge it.”
“ So the possessor may by his own act, in putting upon the record an instrument inconsistent with title in himself, or by executing and delivering such a recordable instrument, be estopped from relying upon his possession as evidence to subquent purchasers that he claims title to the premises. In the case cited, defendant had conveyed the land in question to*17 ■one in whom he placed confidence, subject to a secret trust. The deed of conveyance was absolute on its face, and was ■duly recorded. Relying upon the record, plaintiff purchased the premises from the apparent grantee for value, who, in making the sale, was guilty of a breach of trust. But the plaintiff took without-knowledge or notice of the trust, although the defendant, after making the conveyance, remained in possession and openly exercised acts of ownership over the property.” (Sec. 299.)
Bigelow on Fraud states:
“The rule of notice by possession does not apply in favor ■of a vendor remaining in possession, so as to require a purchaser from his grantee to inquire whether he has reserved any interest in the land conveyed. So far as the purchaser is concerned, the vendor’s deed is conclusive. Having declared by his deed that he makes no reservation, he cannot afterward set up any secret arrangement by which his grant is impaired.” (Pp. 295-6.)
Washburn on Real Property also says:
“Nor will the continued possession by the grantor of land, ■after the making of his deed, be notice of a defeasance held by him which is not recorded.” (Vol. 2, 3d ed., p. 66.)
The following decisions are in accord with these elementary writers: Van Keuren v. Central Rld. Co., 9 Vroom (38 N. J. L.), p. 165; Newhall v. Pierce, 5 Pick. 450; New York Life Ins. Co. v. Cutler, 3 Sandf. Ch. 176; Kunkle v. Wolfersberger, 6 Watts, 126; Hennesey v. Andrews, 6 Cush. 170; Crossen v. Swoveland, 22 Ind. 434; Scott v. Gallagher, 14 Serg. & R. 333; 2 Leading Cases in Eq., pt. 1., p. 118; Juvenal v. Patterson, 10 Pa. St. 203. See also 4 Cent. L. J. 122, 124; Bloomer v. Henderson, supra; Deputy v. Stapleford, supra; Cook v. Moore, supra.
In this case, as the defendants had no knowledge of the fraud practiced upon the plaintiff by their grantor, as they examined the records of the office of the register of deeds of Cowley county, and found recorded there the title in fee simple in Payson before they took their conveyances from him or paid out their money, and as in all the matters connected
Counsel for plaintiff make the further claim that plaintiff held the premises by an adverse possession at the time of the execution of the mortgage and conveyance to defendants, and therefore that Payson could not convey the land. The conclusion already obtained justifies us in saying that the grantor of Payson did not have in law, adverse possession as to bona fide purchasers after the execution and recording of her deed. Both the innocent mortgagee and the bona fide purchaser had the right to treat her merely as a tenant at sufferance of her grantee, at the execution of the conveyance to themselves.
The judgment of the district court will be affirmed.