*1 others, wife, vs. Green and Appellants, Miller Respondents.
May 4 June 1953. *2 brief Door & there was a Knowles by appellants For the Richmond, Door, oral W. T. argument by Jr. of New there was a brief and oral argument For respondents Menomonie. E. Donley Willis by Defendants Hines claim that their title under Currie, J. their deed is to the superior land-contract interest of plaintiffs inasmuch their deed was recorded first. 235.49, Stats., Sec. as follows: provides “Every conveyance real estate within this state here- made (except patents after this issued United States or state, or officers proper shall either) be recorded as law shall provided by be void as against any subsequent good faith for a valuable con- sideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded.” at question issue on this is whether appeal the defend- Hines ants under the qualify statute as foregoing subsequent *3 "m purchasers good Plaintiffs contend that the de- faith” fendants Hines do not so because the qualify plaintiffs were the 29, 1950, of on November when defendant E. Hines the W. Mrs. paid Green the toward $500 farm, and that purchase price such possession consti- of tuted constructive notice the plaintiffs’ rights under their land contract. This it makes to review the necessary evidence on such the bearing possession by or either plaintiffs, of them. 40 acres of the 63-acre tract Approximately was cultivated land and the remainder was and pasture woods. The build- house, barn, on the farm consisted of a small ings log sheds, which in a condition; some were dilapidated the house unlivable; and such had not been buildings was used for many The M. Miller Eugene had leased the years. plaintiff entire for 63-acre tract the season 1950 and crop had grown crops 40 acres and had on the cultivated livestock grazed on the The had been remaining portion. crop harvested prior November, 1950, the livestock had been removed when 22, November However, weather came about cold 1950. November 1950 date that the Millers starting (the con- father, farm tracted to this tract), Miller’s in behalf purchase 162 Millers, 50 and loads of manure to hauled between land, over the but manure was spread First the
the farm. on a came was about piled pile a snowstorm after then road, about 60 feet long such pile being from the 100 feet of manure was Such hauling taking- feet high. and several the date that defendants (the November on place on the down payment purchase the price), Hines made $500 December 8 or about 1950. Also in until continued snowstorm, November, the two acres approximately prior Miller, which land was plowed had been plowed land the from the before abutting highway visible snow- plainly storm. about one-half was located mile from this farm
The Hines tract, highway the distance was about although 63-acre the tract was visible miles. Part of from the and one-half one Hines The W. E. testified that he defendant home. Hines M. Miller had leased the tract* Eugene knew denied that he drove past but season crop for November, .1950, and highway during on the abutting tract land, hauling seen plowing having denied land, manure, he the manure although or pile the manure there following admitted finding pile spring. to the rule is that of land general have may of whatever rights possessor prem- world this well Pippin ises. The reason rule is stated underlying *4 74, 69, 130 N. 872: v. Richards 146 Wis. W. (1911), in “The of the law is that person possession theory he or title which has be asked to disclose the may right with the and the will be purchaser chargeable premises, have received had he made inquiry. actual notice he would 103, 733; Feldman, Brink N. W. v. 75 43 Mateskey Wis. 463, Frame, Jones, Va. In Frame v. 32 W. supra. man 478, the said: “ as that universal manu- ‘The has been described earth all. When therefore a man proposes to the of open eyes script.
163 to or deal with his first is to buy realty, read this duty public is, it, look and to see who is there manuscript, upon And, what are his rights there. if the person possession it, it, has an title to he is as much equitable bound to respect as if it was a title evidenced perfect legal a deed by duly ” recorded.’
An statement of this apt of general principle possession constructive notice is being stated State v. Jewell (1947), 171, 165, 825, 250 Wis. 26 N. W. 28 N. 314: (2d) W. (2d) “The of real estate possession is generally considered con- structive notice of rights possessor, whether pos- session is to be used for the sought with notice of an a purpose charging purchaser equity, or whether outstanding isit to a sought charge with notice subsequent purchaser of an unrecorded instrument and thereby defeat his right pro- tection under the acts. It recording is so held in the United courts and in States states of the Union. 55 twenty-eight Am. Purchaser, Vendor Jur., sec. p. and cases cited.”
The rule with respect possession of tenant constituting claimed such any rights tenant is stated in 5 Real Tiffany, Property (3d sec. ed.), p. 1291: that, “It has been decided a number of states by the lease, of a tenant under a chargeable notice, not lease, lease, tenant’s under only rights but also of he any have not under right may as, instance, for an under agreement lessor to sell the him, . . .” property
The authorities hold that in generally order that possession may constitute constructive notice such must be visible, exclusive, and “open, unambiguous.” Ely v. Wilcox *523; 71; 20 Wis. Wickes v. Lake (1866), (1869), Wis. Purchaser, and Am. Vendor and Jur., sec. 716. p. seen It will thus be that the requirements as to the type that will constitute constructive notice are prac- identical with the tically requirements type posses- *5 In view of sion to constitute adverse necessary possession. unusable, fact farm were plowing buildings of land November and the two acres after the manure No- every day throughout hauling practically visible,” not were vember were acts which and only “open “exclusive and were cus- unambiguous.” They but also as to which could be exercised acts of tomary possession farmlands at such time of Surely they year. unoccupied acts been sufficient to have constituted of adverse have would as acts of that the rule and it would appear possession, a constitute constructive notice to possession necessary Lake, no strict. Wickes is author- supra, is more v. on the land is not that actual residence for the ity principle to have sufficient to constitute in order required notice. constructive 593, 111 90 W. Va. S. E. Stansbury George (1922),
In a claimed title to city and defendants both 1919, had a maintained on during garden lot. plaintiff, a lot, he did not have although the following year, and a there, the owner of lot who near-by he permitted garden a to haul of dirt building large quantity for a was excavating the lot as to so fill low excavation dump from the that the defendants year this second It was during place. obtained deed which re- they purchased corded, title was recorded. The West the plaintiff’s while season, the one held that the gardening during Virginia to be hauled in of the dirt permitting followed sufficient constituted second year, dumped to the defendants rights, plaintiff’s constructive be title. If to have the superior hauling was held and plaintiff sufficient to be lot constitutes a vacant dirt onto surely hauling a subsequent purchaser, notice to constructive case, be held farmland, instant should onto manure notice. constructive to constitute effective to be equally
VO In Russell Ill. Lyman (1867), plaintiff pur 45 chased some but did not record his deed. The farmland defendants claimed under a by- executed subsequent mortgage vendor. The was whether there was such plaintiff’s question “actual, notorious, visible of the lands open, possession” constitute to constructive notice to the subse by plaintiff act Plaintiff’s of of quent mortgagees. consisted possession some in all of the land view of plowing who along passed the The Illinois court held that adjoining highway. the plain sufficient tiff’s was notice to possession put subsequent and should as notice of inquiry, operate plain tiff’s rights.
The learned trial court in the instant case was apparently that, the for of order the opinion M. Eugene the Miller’s of to have been possession premises constructive the Hines that Miller to defendants claimed of rights therein, there must have been some ownership the change of his after November type date (the into the Millers entered contract to purchase), and his This is thereto. prior very from apparent finding of fact made court, Five of trial findings by such as follows: reading finding Miller, M.
“That the plaintiff, Eugene continued in posses-, to of said continued premises, pasture sion livestock 22, 1950, November about when until it thereon was neces- weather, them because to remove sary continued the tillable use of land on make such said premises as the the month of during November, weather permitted 1950. defendant, Hines, E.W. knew at That the that time of the Miller, between the M. plaintiff, Eugene lease oral and the Green, defendant, for the 1950 season. Mary That there was in the use to the land was nothing put plaintiff, Miller, defendant, indicate to M. Hines, Eugene W. E. there had been change status of that said plaintiff relation said land.” In other words the trial found that there was pos- 4, 1950, Miller from November session of the month, there was no to the end of but change through was in the Apparently theory type possession. assume, could be- trial court that the defendants Hines lack character of cause of such change possession, after was that of a November however, authorities, and not of a tenant purchaser. no such in the character establish that clearly change pos- session is necessary. *7 4516, 413, sec. Real Property (perm, ed.), p.
8 Thompson, states: character an his by taking agree- tenant changes
“If the he has this under his lease right or to purchase, ment his amounts to his purchase, option exercises title as purchaser.” his notice of equitable Anderson v. Brinser (1889), effect see To the same 520, 521, 404, wherein the 376, 18 Atl. Pennsyl- 129 Pa. court stated: vania will, course, existence a lease give of the “Knowledge but, all its provisions; notice of the possession, constructive lease, as notice we think should be treated the from apart of be, title, whatever that claim claim may the possessor’s the first of two or be but more successive may lease the for the tenant. Whilst the under occupancy acquired rights the have under articles may tenant purchased for years,
a lease or, indeed, an he have equity; himself may entitled in fee his estate and failed to record the deed. legal purchased that a of the lease knowledge precedent it be supposed Would would duty with the entitle a sub- inquiry, dispense anof to the innocent protection purchaser? grantee sequent Amer., 6th Vendors from 10th on “In Sugden [volume stated, ed., London, expressly sec. and nu- p. 22] statement, support cited that if authorities merous his his character tenancy change by having during a tenant estate, his agreed purchase amounts to notice of his as title equitable purchaser.”
It is our considered acts of that the judgment on the M. Miller part plaintiff Eugene throughout November, 1950, remainder month of following of the tract the Millers November purchase constituted constructive notice to all world which required to make as to subsequent purchaser what inquiry rights, if M. Miller claimed to have in any, Eugene assume, Subsequent could premises. purchasers safely Hines, that, without as did defendants because inquiry, season, Miller had theretofore a tenant for been there had been no in his from that of tenant subsequent rights change to that of a purchaser. reversed and
By cause remanded Judgment Court.— enter directions to for judgment prayed plaintiffs’ complaint. {dissenting). effect majority say
Gehl, J. as a matter of law land and its any entry upon occupation, no matter acts of be entry may infrequent and the be for short occupation may interrupted periods, constitutes *8 such as to put purchaser as to possession upon the inquiry of the so that rights person occupying; possession, regardless extent, of its nature or serves as to notice the put prospective buyer upon inquiry. erroneous. Possession to
That is constitute notice is that law, in by Wilcox, which is and is defined required Ely v. *523, *531: 20 Wis. is, next whether there
“The was such question the date of the deed to the at as to by Ely appellant be con- him the notice to of title. plaintiff’s structive The burden of was on the to such plaintiff prove proof possession. He or to that either he has failed one prove any under him was in or any actual possession part of them at is, rule be no- date deed. The that to possession, visible, exclusive,
tice, must be not open, and unambiguous; Moore, to liable be misunderstood or misconstrued. Patten v. 32 N. H. and authorities there cited. The had no such possession.” Lake,
In Wickes v. Wis. the court restated the Both cases have been rule in the same considered language. and cited this court numerous times. by all cases have dealt with the precise ques-
Not of later involved; are to here referred as only indicating tion they is that the court has not overlooked likely that quite never, so far as I have been able stated. It has rule there find, this court that to be con- been held by notice, be nature different from that there may structive with cite a number cases dealing The majority defined. in the instant case. The that presented similar to situations upon cases described those court of one claim- to the contention relied in opposition the party different from those used terms bona purchaser ing fide But a of those cases. reading in the two earlier there found was such that the possession cases will disclose of the earlier definition. meet the requirements as to Case, and the supra, the Ely as it is stated The rule Case, identical with stated is in substance supra, Wickes Purchaser, 1090, sec. 716: p. Vendor in 55 Am. Jur., of real estate constitute may that possession “In order party posses- rights ato purchaser held, is such posses- the possession of which virtue sion or full, notorious, clear, visible, unequivocal, open, be sion must title or adverse to the or inconsistent unambiguous, vendor, to be misunderstood likely interest sufficient misconstrued, but, 'contrary, put or his guard.” fact, Jones, Brinkman v. one of presented The issue 364; 487, N. 498; Porter, 51 Wis. 8 W. Mohr 44 Wis. *9 Purchaser, 1135, 55 Am. Vendor and Jur., sec. p.
the court’s should not be finding disturbed. That a finding has force is indicated quite First Nat. clearly Bank v. L. Savings & T. Co. Wis. 240 N. case W. a similar issues where the involving discussing that one to be a bona finding claiming did not fide have sufficient notice to him said put upon : inquiry (p. 279)
“It is not at all clear that this court could have disturbed
.”
. .
contrary finding,
It was the burden of the
plaintiffs
establish that Hines
was not a bona
purchaser. Olmsted v. McCrory, 158
fide
Wis.
N.
The trial
made no
judge
specific
finding
Miller
not that
was
law to
required by
Hines on
put
in-
find that “there was
He did
nothing
the use
quiry.
Miller,
which the land was put
plaintiff, Eugene M.
*10
Hines,
defendant,
E.
to indicate to the
W.
that
had
[there]
in the status of said
relation
been
change
land,”
I
Miller’s
to said
which construe as
that
oc
finding
land was not such as is
to
required
lawby
cupancy
event,
omission,
In
if there
Hines on inquiry.
any
put
such, make the
one
is neces
specific finding,
were
to
to a
judgment,
equivalent
finding
sary
support
contention
Robinson v. Mara
plaintiffs.
against
398;
Pierce,
200 N.
Desmond
Wis.
W.
chowsky, 184
479,
I am authorized Broadfoot Justice in this dissent. join Mr. Justice Brown Dairy Co-operative others, Respond Lake Lake another, ents, vs. Andrews Appellants. 2, 1953. May 5 June