Drey v. Doyle
| Decision Date | 04 November 1889 |
| Parties | Drey v. Doyle, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Amos M. Thayer Judge.
Affirmed.
Joseph Laurie for appellant.
(1) Notorious and exclusive possession of realty by a third party, when known to a purchaser, puts him upon inquiry, and in the absence of evidence showing a proper but ineffectual inquiry, the presumption or conclusion charging such purchaser with actual notice of the rights of the occupant becomes absolute. Notice is actual when the purchaser is either aware of the adverse claim, or is conscious of having the means of knowing, although he may not use them. R. S 1879, secs. 691-2; Maupin v. Emmons, 47 Mo. 304; Speck v. Riggin, 40 Mo. 405; Rhodes v. Outcalt, 48 Mo. 367; Hill v. Tisseur, 15 Mo.App. 299; Cornet v. Bertelsman, 61 Mo. 118; Masterson v. Railroad, 5 Mo.App. 64; S. C., 72 Mo. 342; Meir v. Blume, 80 Mo. 179; Mason v. Black, 87 Mo. 329; Kinealy v. Macklin, 89 Mo. 444; Roan v. Winn, 93 Mo. 503; Mayor v. Buckley, 51 Mo. 231; Sensenderfer v. Kemp, 83 Mo. 581; Lee v. Turner, 15 Mo.App. 213; S. C., 89 Mo. 489; Martin v. Jones, 72 Mo. 23; School District v. Taylor, 19 Kan. 287; Brinkman v. Jones, 44 Wis. 498; Williamson v. Brown, 15 N.Y. 354; Grimstead v. Carter, 3 Paige, 421; Knapp v. Bailey, 79 Me. 195; Bispham's Equity, sec. 268. (2) Appellant is entitled to the same consideration in determining the legal effect of a possession known to the purchaser, as if he were holding under an unrecorded deed instead of a lease. This we find to be settled beyond dispute. 2 Pom. Eq., secs. 614, 618, 625; 2 White & Tudor Cases, cited in notes to La Neve's Case, 130 and 187; Cunningham v. Pattee, 99 Mass. 252; Dickey v. Lyon, 19 Iowa 544; Thompson v. Pioche, 44 Cal. 508; Edwards v. Thompson, 71 N.C. 180; Beattie v. Butter, 21 Mo. 313; Winfrey v. Work, 75 Mo. 55; Casey v. Steinmeyer, 7 Mo.App. 558. (3) The registration act is for the protection of subsequent purchasers for value and without notice. It is, therefore, necessary that such purchaser, claiming the protection of the statute as against a prior unrecorded conveyance, should have paid a valuable consideration, and this fact must be shown by other evidence than the recital in the grantor's deed. The issue as to whether such party is a purchaser for value is to be determined by the jury and the burden of proof is upon the subsequent purchaser to establish it. Keen v. Schindler, 92 Mo. 516; Aubuchon v. Bender, 44 Mo. 360; Davis v. Ownby, 14 Mo. 176; McCamant v. Patterson, 39 Mo. 110; Sillyman v. King, 36 Ia. 207; 2 Sugden on Vendors, 580; 2 White & Tudor's Leading Cases, p. 106; 3 Washburn R. P. [5 Ed.] 343; Shotwell v. Harrison, 22 Mich. 410; Watkins v. Edwards, 23 Tex. 443; Nolen v. Heirs, 16 Ala. 725; Bishop v. Schneider, 46 Mo. 472; Alexander v. Campbell, 74 Mo. 142; Allen v. Kennedy, 91 Mo. 324. (4) When a thirty days' notice undertakes to name specifically the date of the termination of the tenancy, it should fix it as the last day of the current month, and not, as in this case, the first day of the following month, whereby a new month is allowed to be commenced. 2 Taylor on Land. & Ten., sec. 477; 1 Wash. Real Prop., p. 640; Wade on Notice, secs. 609 and 631; Wilgus v. Lewis, 8 Mo.App. 339; Gunn v. Sinclair, 52 Mo. 327.
John R. Christian and David Goldsmith for respondent.
(1) The evidence does not show that Nelson and plaintiff had actual notice of the lease. (2) In the circuit court the defendant's utmost contention was, and he asked the court to give an instruction to the effect, that if defendant was in open, notorious and exclusive possession, and the plaintiff was aware thereof, these circumstances were evidence from which the jury might infer that the plaintiff had notice of the lease. Having done so, he should not now be heard to argue, that the jury were bound to make this inference, even if such an argument would otherwise have been maintainable. Holmes v. Broadwood, 82 Mo. 610; Thorpe v. Railroad, 89 Mo. 650; Reilly v. Railroad, 94 Mo. 600. (3) While actual notice must be shown, the evidence need not be direct and positive but may be circumstantial, that is, actual notice may be inferred from facts which would lead a man of ordinary prudence to discover it. Masterson v. Railroad, 5 Mo.App. 68; Vaughn v. Tracy, 22 Mo. 420; S. C., 25 Mo. 318; Maupin v. Emmons, 47 Mo. 307; Jordan v. Pollock, 14 Ga. 156; Porter v. Levey, 43 Me. 519; Mara v. Pierce, 9 Gray, 306; Stafford v. Leck, 7 Cal. 489. (4) A tenant's occupancy is not adverse to the landlord's, and, therefore, does not put a purchaser from the landlord on inquiry. Such a purchaser has the right to assume that the record shows all prior conveyances and agreements affecting the property sold to him, and, therefore, that there are none besides those shown by the record. It is only when the actual possession of the land is not consistent with the record title, that the purchaser can be said to have been put on inquiry, or that it can be said that there is constructive notice, or evidence of actual notice, as the case may be, of the unrecorded title of the person in possession. Smith v. Yale, 31 Cal. 184; Pope v. Allen, 90 N.Y. 303; Quick v. Milligan, 108 Ind. 423. (5) The recital in the deed of payment of the purchase money was prima facie evidence of payment. Jackson v. McChesney, 7 Cow. 360; Wood v. Chapin, 13 N.Y. 509; Page v. Waring, 76 N.Y. 469; Fer. Co. v. L. G. & Co., 82 N.Y. 483; Roll v. Rea, 12 A. 907; Holmes v. Stout, 10 N. J. L. 419; Baum v. Dubois, 43 Pa. St. 265. (6) In the case of the conveyance of property by a debtor to defraud creditors, the weight of authority is that the recital of payment in the conveyance is prima facie evidence of payment as against the creditors. And yet the debtor, who has made the conveyance for the very purpose to defraud, has no right, in any way, to bind the defrauded creditors. Brown v. Barter, 10 Sm. & M. 273, 274; Stockett v. Holliday, 9 Md. 480; Mayfield v. Kelgour, 31 Md. 240; Marden v. Babcock, 2 Met. [Mass.] 104; Splawn v. Martin, 17 Ark. 146; Bump on Fraud. Conv. [3 Ed.] 594. And such was also the ruling in this state in Gates v. Labeaume, 19 Mo. 25, 26. (7) The provision in the deed to McNelson, and its acceptance by him, containing the provision for his assumption of an encumbrance of one hundred and thirty-five thousand dollars, constituted a contract by him to pay the encumbrance and one which is enforcible against him personally by the holder of the debt assumed. Fitzgerald v. Barker, 70 Mo. 685; Heim v. Vogel, 69 Mo. 529; Jackson v. Winslow, 9 Cow. 13; 2 Pomeroy's Eq. Juris. 206. (8) The notice to quit was sufficient. Drey v. Doyle, 28 Mo.App. 256. Besides the objection made to the notice, that it was irrelevant, immaterial and incompetent, was insufficient. Ector v. Ins. Co., 32 Mo.App. 53; Margrave v. Ausmuss, 51 Mo. 561.
OPINION
-- This is ejectment for a lot in St. Louis upon which there is a livery stable. Doyle, the defendant, leased the property from Mr. Lucas for a period of five years, the term ending the last of May, 1884. The lease, though in writing, was never recorded. The evidence tends to show that at the expiration of the lease the parties agreed upon a renewal for four years upon the same terms, except the rents were increased from seven hundred and twenty dollars to eight hundred and forty dollars per annum, payable monthly. Defendant continued to occupy the premises, paying the agreed rental. By a writing, which was never recorded, bearing date June 21, 1884, but, in fact, executed not earlier than June 21, 1886, the lease was renewed for the further period of four years, thus reaching back and covering the two years for which there was no written lease.
Mr. Lucas conveyed this and other property to Mr. Nelson by a deed executed and recorded on the ninth of July, 1886. Nelson conveyed the undivided one-half to Hammitt, and these two persons conveyed the lot in question to plaintiff Drey, by a deed dated the fourteenth, and recorded the twenty-eighth, of July, 1886, for the recited consideration of twenty thousand dollars. Nelson and Hammitt were to have the July rents, which were collected by Turner, who was the agent of Mr. Lucas, and paid to them. This is the only evidence tending to show that they had any notice of the renewed lease. Turner had collected the rents for several years and he says he did not know that defendant had a written lease.
When plaintiff purchased, he evidently knew the defendant occupied the property as a tenant on some terms. He says he saw defendant at the stable after he had made the purchase and paid part only of the purchase money; that he told defendant of the purchase and asked the latter what rent he would pay; that defendant said he would pay the same he had been paying to Lucas, but not a cent more, unless better improvements were put upon the property; that defendant did not then claim to have a lease; and that he, plaintiff, first heard of the written lease after he had completed the purchase, and then through defendant's attorney.
Defendant says he told plaintiff of the lease in the conversation at the stable just mentioned; that plaintiff and another person came to the stable in the preceding February to look at the property for a warehouse, and he then told them of his lease. This conversation is denied by plaintiff.
On this evidence the court gave a number of instructions, one of which is as follows:
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