59 Kan. 640 | Kan. | 1898
This was an action to quiet title to a tract of land, brought by the defendant in error Worster, as plaintiff, against C. W. Smith, the plain
Judgment of foreclosure and for the amount of the mortgage was rendered November 8, 1889, against Worster and others' liable therefor. May 9, 1890, an order of sale of the land was issued, and on June 10, following, the land was purchased at the foreclosure sale by Worster, the defendant in error, for a portion of the judgment, soon after which he paid the remainder to the judgment creditor. This sale was confirmed June 30, 1890. Although the deed to C. W. Smith, the plaintiff in error, had been recorded intermediate the issuance of the order of sale and the sale of the land, the defendant in error Worster was ignorant thereof and of the said Smith’s claim of title. C. W. Smith, however, knew of the pendency of the
The question at issue can be shortly stated. It is this : Can the grantee in a conveyance, with knowledge of the pendency of a-suit to foreclose a prior mortgage lien upon the land, brought and maintained upon the assumption that he had no interest in the subject-matter of the action, and who never, by possession of the land or otherwise, gave notice of his claim to it, withhold his deed from record until the case has progressed ,to judgment and the issuance of an order of sale, and then by filing it in the register’s office arrest the conclusion of the case and bring to naught the efforts that far made to convert the land into money for the payment of the debt; and when sued by the purchaser, can one of the judgment debtors who was legally bound for its payment, in an action to quiet his title, successfully defend upon the ground that he, not having been made a party to the case, had an equity of redemption or other interest in the land of which he had not been foreclosed and barred ? Our very decided judgment is that he cannot do so. C. W. Smith was a grantee of mortgaged premises. He was a grantee before suit upon the mortgage, but he purchased with knowledge of the existence of the mortgage. Pie knew that without voluntary payment of the mortgage debt by those obligated to such duty the mortgage would be foreclosed as against those supposed to be interested in the land. With knowledge of this fact he neglected to put himself in the way of receiving information of the fore
Section 21 of the act concerning conveyances of real estate declares —
“No such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the Register of Deeds'for record.” Gen. Stat. 1897, ch. 117, § 21.
This statute therefore prescribes a penalty for the neglect of duty towards others and lack of diligence to protect one’s own interests. That penalty is that the unrecorded conveyance, except as between the parties thereto and those who have actual knowledge thereof, shall be invalid as long as it remains unrecorded. If, then, the deed of plaintiff in error was invalid until recorded it was as though he had no interest in the land until record was made. If he had no such interest until record was made, his rights dated from the time of record the same as though they had not been acquired until then. That being true, he was as a purchaser pendente lite. He was as though he bought pending the suit.
It cannot be claimed that an unrecorded deed is invalid for the time being simply because unrecorded, but that when recorded it carries the grantee’s rights back in time and effect to the period of purchase, as against those who have acquired rights meanwMle. The record of a conveyance gives it no such retroactive effect. Until recorded it is invalid ; until then it has in legal contemplation no existence. Any other construction would not only nullify the intent but would change the actual letter of the statute. Had another in good
Before C. W. Smith placed his deed upon record — that is, before he in legal contemplation purchased the land, a judgment of mortgage foreclosure had been .rendered against his grantors and sale proceedings ihad been commenced. That j udgment was res judicata. ;and the right to institute and conduct the sale proceedings under the status fixed by the -judgment followed as a necessary consequence. The principle
“The title and estate of a person holding an unrecorded deed is, as to third persons without notice, wholly in the grantor, and the grantee is in privity with its [his] grantor, and any decree rendered against the grantor affecting the grantor’s title is also in effect a decree rendered against the grantee, and it equally affects his title ; and the decree is res adjudicata, as to the interests of all.”
In that case it was likewise remarked : “ Where a deed is recorded a long time after its execution, it probably takes effect, as to innocent third persons without notice, at the same time that it would if it were executed and recorded on the day on which it is recorded.”
No construction can be evolved out of section 20 of the act concerning convejmnces which militates against the above views. The declaration of that section that all subsequent purchasers and mortgagees shall be deemed to purchase with notice of recorded instruments from the time of their being filed for record means no more than it says. It simply establishes a rule of constructive notice. It does not assume to define rights, but only to declare a rule of notice as to rights. It gives to notice of rights no retroactive effect. On the contrary, it expressly limits the effect of such notice to the time of filing the instrument for record. Those rights therefore date only from the time of the notice as the origin of their existence. One of them perhaps, was the right to redeem in equity, but the right to stay a foreclosure proceeding, intervene in the suit and compel the parties to litigate the case anew is not one of them.
As opposed to these views, the case of Holden v. Garrett (23 Kan. 98), is cited and much commented upon.. In that case it was held that an unrecorded mortgage,, given before the levy of an execution issued upon a
“The holder of an unrecorded deed at the time a suit is commenced and lis pendens comes in force must be placed in the category of & pendente lite purchaser. This is specially true where the recording laws declare that the instrument shall be effective as against purchasers and creditors from and after the filing for record or recording. As between the parties to the instrument it is valid without reference to its record; but under such statutes the instrument does not become effective as against purchasers and creditors until it is recorded. So, if prior to such record a suit is commenced involving the property, the lis pendens would take precedence to the rights of a grantee under an unrecorded deed or mortgage, and such grantee or mortgagee could have no better right than if the instrument had actually been made after the lis pendens had come in force, for the recording, as in favor of such persons, is one of the essentials to its validity. This is not an exception to the rule of Us pendens, but an application of the rule.itself.”
The judgment of the court below is affirmed.