43 Minn. 213 | Minn. | 1890
Action to remove a cloud from the title which plaintiff claims to have to a lot in the city of Duluth. About the 1st of August, 1886, one Austin was the owner in fee of the lot in question. He then entered into a verbal contract with the plaintiff to sell and convey the lot to him for a certain sum, part of which was to be paid in professional services, the balance in cash. These services were rendered, and on October 23d of the same year said Austin made and executed a warranty deed of the premises, in which plaintiff was named as grantee; but he refused to deliver said deed to the plaintiff until the latter paid to him the balance of the purchase-money. This was done, the last payment being on March 27, 1888, at which time the deed was duly delivered to plaintiff. The latter had been acting as agent and attorney for Austin, who died November 7,1888, for some two years prior to his decease. The lot in question, during all of the period of time covered by these transactions, was vacant and unoccupied, except a small portion in the rear, on which had been erected a brick building owned and occupied by one Buchanan, who had leased the ground from year to year from Austin. In November, 1S87, his lease being about to expire, the tenant applied to plaintiff, as Austin’s agent, for a renewal; and thereupon there was executed by Austin a lease of the ground actually covered by the building, for one year, commencing November 15, 1887. This lease was witnessed by plaintiff, and Austin’s acknowledgment thereto was taken before him as a notary public. At the same time Buchanan paid to plaintiff, for Austin as he supposed, the rent in full for one year; that is, up to November 15,1888. This lease was not recorded, and the plaintiff failed and neglected to put his deed on record until the 28th day of June, 1888. Long before this, suits had been brought against Austin in the district court of the county in which the lot is situated, and in which all of these parties then resided, for the recovery of money, in one of which this defendant was plaintiff. This plaintiff appeared in that action as Austin’s attorney, and on March 31,1888, verified his client’s answer therein. Judgment was entered and docketed against Austin, defendant in said action, on May 24,
The defendant’s claim is based solely upon his purchase at a sale on execution issued for the purpose of enforcing the payment of the judgment heretofore described. Therefore both parties assert a title derived from Austin, — the plaintiff through his deed of conveyance, the defendant by means of proceedings upon his judgment. The principal question in the case is whether the latter had such notice of the plaintiff’s rights and interests at the time of the docketing of his judgment as would render it subject and secondary to the unrecorded conveyance. If he was possessed of this notice, the defendant’s purchase and the sheriff’s certificate of sale, as evidence of a paramount title, cannot be allowed to prevail as against the plaintiff’s deed. He was not a purchaser in good faith and without notice. Lamberton v. Merchants’ Nat. Bank, 24 Minn. 281, 287. It will be observed that constructive notice only can be urged or is claimed by the appellant; and this arises, if at all, by reason of the actual, visible occupation-by Buchanan of a portion of the premises at the time of the docketing of the judgment. The doctrine is well established in this state that a purchaser, by means of the tenant’s possession, is put upon inquiry respecting the particulars of his claim and interest, and also from whom he holds; that the actual possession by a tenant not only protects him in all of his rights and interests, but that a pur
This brings us to a consideration of the relations which existed between appellant and Buchanan, when respondent’s judgment was docketed, and what facts the latter might have learned, had he then pursued such inquiries as to Buchanan’s claims as the law required. His investigations must be made at the time of the docketing of the judgment; and he will be held, in the absence of inquiries, as having knowledge of what he could have then learned. Therefore, it is quite immaterial, in this case, that Bevier, the judgment creditor, was permitted to testify that a few days subsequent to the entry of the judgment he inquired of Buchanan, the tenant, and was informed by him that he leased from Austin; and equally as immaterial that the trial court passed upon this in its findings of fact. The admission of the testimony, and the finding thereon, did not prejudice the appellant, because the rights of the respondent must be determined by what he knew, or might have learned upon proper inquiry, at the time his judgment was docketed. The lien of the judgment could not be impaired or aided by subsequently acquired knowledge as to the tenant’s interest or his landlord’s title. From the findings it appears that “in the spring or early summer of 1888” the appellant notified Buchanan of his purchase from Austin, and that he had a deed of the premises. This is indefinite, and no
Now, with this condition of affairs, was Buchanan’s possession notice to the judgment creditor of the title now asserted by the appellant ? Admitting it to have been the creditor’s duty to have followed up the suggestion which the occupancy of the premises by a third party implied, to have investigated Buchanan’s claims, and that he must be presumed to know all the facts which inquiry would have
Of the seventh assignment of error we need but to say that, if the judgment herein involved was not against the person in whose name the title to the lot appeared of record prior to the recording of appellant’s deed, the latter cannot be allowed to maintain the action. Coles v. Berryhill, 37 Minn. 56, (33 N. W. Rep. 213.) It was only
Judgment affirmed.
Note. By stipulation between the parties the decision in case of Robert R. Wilkins v. Henry H. Bell, argued with the foregoing case, by the same counsel, followed that in the foregoing case.