36 Cal. 691 | Cal. | 1869
Lead Opinion
In the judgment, through which the plaintiff claims title, it is recited that “the defendant, having been regularly served with process, and having failed to appear and answer the complaint of the plaintiff on file herein, and the legal delay for answering having expired, and the default of the said defendant in the said premises having been duly entered,”
Upon this question the language of the Court in Seale v. Mitchell, 5 Cal. 403, and in Hickman v. O’Neal, 10 Cal. 294, may now be cited with peculiar force and significance, as thirteen years have elapsed since the decision in the first case, and ten years since that in the second, and we apprehend that those decisions have as generally been acquiesced in, as settling the question, as those upon any controverted point arising in the Courts. In the first case Mr. Justice Heydenfeldt says: “ The clear result from that case is, that the Superior Court has constitutionally all the powers which are specified in the Act, and such has been the uniform understanding of the profession. That decision (People ex rel. Hughes v. Gillespie, 1 Cal. 342) has remained as an exposition by the tribunal of the last resort of the character of the Court in question for nearly five years. The community to be affected by it have acted upon it in a vast number of judicial relations; rights of property have grown up under it, have changed hands, and passed through numerous ramifications, until it has become imperative to regard it as
The only remaining question which we deem it necessary to consider, is that in relation to notice to the plaintiff of the title claimed by Mrs. Austin. In 1855 Austin made a deed of gift of the premises to his wife, but the deed was not recorded, nor did the plaintiff have actual notice of it. In March, 1856, Austin and his wife united in a conveyance of the premises to Compton, and .in June of the same year Compton conveyed the premises to Mrs. Austin. The Sheriff sold and conveyed the premises to Ryekman, under a judgment against Austin, in 1861, and Ryekman, who had made the purchase and taken the conveyance as the agent of the plaintiff, conveyed the premises to him in 1862. The defendant’s position is, that the deed to Compton, having been executed by Mrs. Austin as well as her husband, the record was constructive notice to the plaintiff of Mrs. Austin’s unrecorded deed—that it furnished a clue which, if followed by him with due diligence, would have disclosed her title. Aside from the authorities upon the general doctrine of constructive notice, the case of Ramsdell v. Fuller, 28 Cal. 37, is principally relied upon by the defendants. In that case the
Judgment affirmed, and ordered that this judgment be entered as of the fifth day of October, A. D. 1868.
Concurrence Opinion
I concur in the judgment; but, in my opinion, the fact that Mrs. Austin united with her husband in the deed to Compton, was not only insufficient to put the plaintiff on inquiry as to her unrecorded deed, but it was not sufficient to excite even a suspicion of it. It is so common a practice in this State for wives to unite with their husbands in conveyances of common property, where it is not pretended that they have any separate estate in it, that to hold that fact alone to be sufficient to put the purchaser on inquiry as to her secret equities, would extend the doctrine of constructive notice beyond all reasonable limits.
The point urged by the defendants in the petition for rehearing is, that, as the deed of Compton to Mrs. Austin was of record at the time the plaintiff purchased the property under execution, the plaintiff had notice of her title; and the point is again urged on the supposition that it was overlooked by the Court on the previous examination of the record. It was not overlooked, but it was passed because we thought, as we still think, the answer quite obvious. Both Mrs. Austin and the plaintiff claim through Austin. She took nothing, as against the plaintiff, under her deed from Compton, for it was found, upon sufficient evidence, that the deed of Austin and wife to Compton was void as to the plaintiff, and under section twenty-four of the Statute of Frauds, her deed from Compton afforded her no protection, because she was not a purchaser for a valuable consideration. She, then, can rely only upon her unrecorded deed from Austin, and not upon that of Compton, unless the plaintiff purchased with notice. We have heretofore disposed of the deed of Austin and wife to Compton, as related to the question of notice of her unrecorded deed. The deed of Compton is equally valueless as notice. Whatever force there might be in the point, if the plaintiff claimed through her —as the plaintiff in Ramsdell v. Fuller claimed through the deed to Mrs. Fuller—it was no merit whatever, when he not only claims in opposition to her, but shows that her deed is void. We know of no principle justifying us in holding that the record of a deed, void as to any person, was notice to such person of anything, except, perhaps, of the existence of the void instrument. It certainly furnishes no clue to an earlier deed to the same grantee, executed by another grantor.
The general rule is, that the record of a deed is notice to subsequent purchasers—that is to say, the subsequent purchasers from the same grantor—and it is not intended by anything that has been said to infringe upon this rule.
Rehearing denied
