22 Mo. 415 | Mo. | 1856
Lead Opinion
delivered the opinion of the court.
The question made by this case is, whether possession of real property under an unregistered déed, is actual notice to a subsequent purchaser, within the meaning of our registry acts.
In order that we may put a correct interpretation upon these words, it may not be improper to refer to the state of the law upon this subject when the act was passed. The words of the lawgiver tacitly refer to the circumstances by which he is surrounded, and we must read them in connection with those circumstances, in order to put a sensible construction upon them. After courts of equity had established their jurisdiction in enforcing the specific performance of contracts for the purchase
The first registry acts in America merely declared the unregistered deed void; in the New England states, generally,
In New York, under their statute, the question, who are bona fide purchasers ? became a question of law, and the rules of English equity in reference to actual and implied notice, became rules of law, and were administered in the law courts. (Tuttle v. Jackson, 6 Wend. 213.) In recent revisions of their statute law, several of the states have incorporated this principle of equity into their registry laws, by declaring “ that any unregistered deed shall not be valid, except against a party with notice and in the Massachusetts and Maine revised statutes, the expression is “ actual notice.”
Our original act, passed in October, 1804, (1 Terr. Laws, 46,) declared, “ that the unrecorded deed should be void against a subsequent purchaser for a valuable consideration but in the revision, in 1825, the provision was, that it should not be binding “ except between the parties and such as have actual notice,” and it has so continued ever since ; and now the question is, as already stated, whether possession is actual notice within the meaning of the act ? We think the legislature here referred to actual notice, as contradistinguished from implied notice, both of which were well known terms in our law when the act was passed; and we all concur in reversing the present judgment upon the ground that possession is not, as the Circuit Court seemed to suppose, as a mere matter of law, actual notice within the meaning of our recording acts. 'The case must, therefore, be remanded to be retried, and we defer, until all the circumstances of the transaction shall be developed upon this new trial, our opinion upon the question how far
Speaking alone for myself, I may be allowed to state my present views of the subject, without, however, committing myself to any settled opinion. In all the states, under the recording acts, as they were originally expressed, possession was always considered either as implied notice of the unregistered deed, not to be contradicted, or as evidence of the fact of notice, to be submitted to the triers of the fact, and which might therefore be met and repelled by contrary evidence. It has, however, been recently held in Massachusetts, (Pomeroy v. Stevens, 11 Mass. 244,) that possession is not evidence of notice to be submitted to the jury, without other evidence showing that the party against whom it is offered knew or imputed such possession to a title in fee, or some higher right than that of mere occupancy, although the previous decisions, both in Massachusetts and Maine, seemed to be that the statute had not changed the existing law, but only incorporated in it the principle previously acted upon (Curtis v. Mundy, 3 Mass. 405) ; and there can be no doubt but that, previously, possession in both these states had always been considered at least competent evidence to go to a jury upon the question whether the party had notice of a prior deed. (Per Wilde, justice, in McMehan v. Grilling, 3 Pick. 155; Matthews v. Demerit, 22 Maine, 312.) Actual notice, under the Statute, is a fact, and of course may be proved as any fact; and as men rarely purchase houses to live in, or improved farms to reside upon, without a personal examination, when it is within their power, it seems to me that the fact of possession may, under ordinary circumstances, be fairly presumed to have been within the purchaser’s knowledge at the time hp bought'. The notice required by the statute is not certain knowledge, but such information as
The judgment is reversed, and the cause remanded.
Concurrence Opinion
I concur in the views of Judge Leonard, set forth in the above opinion; as well in reversing the judgment as in his individual views.
For my views on this question, I refer to the case of Beattie v. Butler, (21 Mo. 313.)