48 Colo. 522 | Colo. | 1910
delivered the opinion of the court :
This action was brought by the appellee to quiet his alleged title to one hundred sixty acres of land in Phillips County; he, as plaintiff, alleged that he was the owner in fee and in possession, and that the defendant claimed an interest therein adverse to him, which was unfounded.
It is admitted that the land was vacant at the time of the commencement of the action. The record shows that, on or about April 1, 1893, one Yeager was the owner of the land in controversy, at which time he conveyed it (for $925.00) by warranty deed to Henry' White, a. Frenchman, who knew but little about business transactions; that he, White, kept the deed with other papers until about 1903, when the same was destroyed by fire; that it had never been recorded; that, after his purchase, White entered upon the land, constructed some buildings and lived there for a time, and after moving away he rented it for a year or two; thereafter he ceased to rent it, and failed to pay the taxes for the years from 1895 to 1905; that on June 23, 1905, he conveyed it to the appellant, Paul, by warranty deed, which was recorded upon the 28th day of June, 1905; that on or about March 7, 1905, the appellee wrote to Mr. Yeager, the former owner, who was then in Nebraska., asking his price for a quit-claim deed to the property; this was followed by another letter of March 15, again by another of March 16, followed by several others, the substance of which were to the effect that the appellee would attempt to make a sale for Yeager of a quit-claim deed to the property. In the first letter he stated that a tax deed had been issued against the land, which*, he admitted at the time of the trial, was not true. He further stated that there was a large mortgage standing against the property which, he admitted at the time of the trial, was incorrect, and that he was
“If I can obtain the assignment of the mortgage at-a reasonable figure, I can make this deal go for yon, and I have been thinking about the best thing to do would be to draw up. a deed for you to sign it up,. and you sign it and return it to. me, and then I will hold it, waiting to see what we are able to do about the mortgage. If the mortgage cannot be bought at a reasonable figure, of course I will send the deed back to yon; but if it can, I will remit you the money.”
In another letter, he forwarded a deed with the name of the g*rantee as B. M. Webster; the consideration named, and was to. be, $25.00. In this letter, he requested the deed be sent to a bank in Denver or direct to him at Holyoke.
On April 4, he wrote again, stating- that Mr. Webster would like to. know if he, Yeager, had ever issued any other quit-claim deed to this property besides this one, in which he states: “Some way he seems to be a little leery about it. If that point is 'once settled, I think it is all settled.” In reply to this letter, Yeager, on April 6, wrote the appellee as follows:
“Yours at hand and contents noted. No, I never made a quit-claim deed to any property before, and 'especially that, but if you will kindly return that-deed to. me I will be very glad. ’ ’
In reply to this letter, the appellee wrote:
“I could not contemplate returning the deed to you at all, because I don’t think that Mr. Webster wishes to. sell his interest in the property, and as he has had the deed filed for record, it is entirely out of my hands, because the clerk has no authority to turn it over to me. ’ ’
The deed from Yeager to Webster was dated
In vol. 23, American and English Encyclopaedia of Law, second edition, at page 518, the rule upon this subject is stated as follows:
*527 “As a general rule, the purchaser is not entitled to protection if he receives notice before- he acquires title by conveyance, even though before notice he has paid the entire purchase price. And the same principle applies a fortiori to a case where a part payment has been made before notice. As a consequence of the foregoing propositions, it has been deduced as a general rule in the United States that, if the purchaser has not obtained the legal title before notice of the prior equity, even though by contract and payment without notice he has acquired an equitable title, he cannot, after notice, acquire the legal estate and thereby defeat or postpone the prior equity, unless his own equity is of superior merit; but in order to produce such a result, he must acquire not only the equitable, but the legal title, without notice.”
To the same effect are: Goldsborough v. Turner, 67 N. C. 412; Nantz v. McPherson, 23 Ry. 597; Bush v. Bush, 3 Strobhart’s Equity Reports (S. C.) 131; Anketel v. Converse, 17 Ohio St. 21; Gallion v. M’Caslin, Blackford’s Reports, vol. 1, p. 91 (Ind.); Gerson v. Pool, 31 Ark. 85; Baldwin, Jr., v. Sager, 70 Ill. 503; Mason et al. v. Mullahy, 145 Ill. 383.
In this case, it was admitted by the appellee, and shown by other evidence, that the substance of his letters to Yeager in pretending’ to act for any one other than himself or making the sale to "Webster, were not correct. Likewise, his statements concerning a tax deed, as well as a mortgage being on the land at the time the letters wére written, were untrue. In the pleadings he states that his reasons for having the legal title taken in the name of Webster was upon account of the tax deed being in existence, and that Mr. Webster, being an attorney-at-law, could make a better settlement and adjustment concerning that cloud upon tire title than he could. The
It was further shown that, at the time Yeager requested the return of his deed, the $25.00 had not then been paid, and there was no reason except the desire of the appellee to ultimately secure title to the land, why such title as the quit-claim conveyed could not have been retransferred to Mr. Yeager, who, probably having been smitten by a guilty conscience, desired the return of the deed, so that the title might stand as originally conveyed by him through the warranty deed executed many years prior thereto, and through which the title of the appellant could not have been questioned had.it not been for the execution and recording of the quit-claim deed to Mr.. "Webster.
The record further shows that the appellee, after taking title in the name of Webster, delayed having a deed executed from Webster to himself for some
Accepting the findings of fact by the trial court as conclusive, it follows that the appellee, McPherrin, advanced the $25.00 without notice, the legal title was then placed in the name of Webster, and the appellee afterwards, with notice, took from Webster the legal title. Webster was not a bona fide purchaser. He paid nothing for his title. The total extent of McPherrin’s interest, if any, at the time he had actual notice, was a resulting trust to the extent of the $25.00 which he paid Mr. Yeager for the quitclaim deed to Webster before notice. He was not a bona fide purchaser at the time the deed was made to Webster; he had not then obtained a legal title, and did not obtain it until after he received notice of the former transfer. His reason, given upon the witness stand, for having the legal title placed in the name of Webster and later transferred to him, is such that he ought not to be given the privilege awarded to an innocent purchaser without notice.
Counsel for the appellant, following the rule laid down in certain Illinois cases, appear to concede that, at the time of his actual notice, McPherrin had an interest in the property in the way of a resulting trust to the extent of the $25.00, which he paid Yeager for the quit-claim deed to Webster before notice. Without deciding whether this rule is applicable in this case where fraud appears to be shown in securing the equity, by this concession upon the part of
This disposition of the main contention makes unnecessary any consideration of the other assignments of error urged by the appellant.
The cross-assignment of error relates to overruling objections to- the introduction of oral testimony pertaining to the conveyance to appellant’s grantor concerning which it is claimed no description whatever of the contents of the deed was offered in evidence, and that there was no proof of its contents sufficient to show that the instrument itself contained all the clauses and language sufficient to convey title to the property — that is, that while the witnesses show the execution of the deed, they could not state its contents or language sufficient to show that a deed sufficient in form to convey title under the law was executed-, in answer to which it is sufficient to say that the trial court appears to have taken the other view. The evidence, perhaps, 'could have been more full and explicit upon this subject, but there is evidence upon which the court’s findings can be sustained, and under the well-known rule it is not the province of this court to disturb them.
For the reasons stated, the judgment is reversed, and the cause remanded. Reversed.
Chief Justice Steele and Mr. Justice Gabbert concur.