82 Mo. 379 (Mo. 1884), Tydings v. Pitcher

Citation:82 Mo. 379
Opinion Judge:MARTIN, C.
Party Name:TYDINGS et al. v. PITCHER et al., Appellants.
Attorney:Harding & Buller and Phelps & Brown for appellants. J. C. Cravens for respondent.
Judge Panel:PHILIPS, C., concurs. EWING, C., having been of counsel, did not sit; SHERWOOD, J., absent.
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 379

82 Mo. 379 (Mo. 1884)

TYDINGS et al.

v.

PITCHER et al., Appellants.

Supreme Court of Missouri.

April Term, 1884

Appeal from Jasper Circuit Court. --HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

Harding & Buller and Phelps & Brown for appellants.

The recital in the second deed made by Rickerson to Tieman, dated March 6th, 1861, that a sale previously made by him to Tieman was null and void, did not cancel the first deed, nor was it such a recital of record as to constitute notice of the unrecorded deed of Tieman to Rickerson of November 16th, 1860. Roberts v. Grace, 16 Minn. 126; 2 Am. Lead. Cases in Eq., pp. 144, 161; Seely v. Holland, 1 Swan 396. A purchaser of land is only affected with notice of conveyances lying in the chain of title. 10 Mo. 34; 2 Washburn Real Prop., (2 Ed.) p. 630; Dingman v. McCollum, 47 Mo. 372. And if he finds a good deed to his vendor, he is not bound to look any further, much less is he bound by any deed outside of that title. 7 Watts 382; 10 Ohio 83; 1 John. Ch. 573; 14 Mass. 303; Trull v. Bigelow, 16 Mass. 405; Bank v. Beveridge, 15 Minn. 205. Pitcher being a bona fide purchaser at a sheriff's sale, is protected as against a prior unrecorded deed. Draper v. Bryson, 26 Mo. 108. The court erred in permitting plaintiff to introduce in evidence the unsealed instrument purporting to be a deed from Tieman to Rickerson. Mastin v. Halley, 61 Mo. 196; Dougherty v. Mathews, 35 Mo. 520.

J. C. Cravens for respondent.

The recital in the deed from Rickerson to Tieman, that $515 of the purchase money remained unpaid, was notice to Pitcher of an outstanding equity in favor of Rickerson. Major v. Buckley, 51 Mo. 229; Johnson v. Gwathmey, 4 Lit. (Ky.) 317; Thornton v. Knox, 6 B. Mon. 74. Notice of this equity made it incumbent as a matter of law on Pitcher to examine the records further for a release or discharge of the lien. 3 Washburn on R. P. (4 Ed.) 596; Jackson v. Livingston, 10 Johns. 874; Reeder v. Barr, 4 Ohio 155; Fitzhugh v. Barnard, 12 Mich. 105; R. S., § 692. It is a settled rule of evidence, that the recitals in deeds, patents and instruments of like character, are binding on the parties and all privies whether in estate, blood or law. Durette v. Briggs, 47 Mo. 360; Carver v. Jackson, 4 Pet. 1; Groff v. Castleman, 5 Rand. 195; White v. Foster, 102 Mass. 375; George v. Kent, 2 Allen 16; Carver v. Astor, 4 Pet. 79; Baker v. Mather, 25 Mich. 51; Scott v. McCullock, 13 Mo. 13. The effect of recorded instruments as to notice is not confined to deeds or sealed instruments, but covers " every instrument in writing that conveys any real estate or whereby any real estate may be affected in law or equity, proved and acknowledged, etc." 1 R. S., §§ 691, 692; McClurg v. Phillips, 57 Mo. 214. The legal title to the land being in the state till Dec., 1868, the various sales and transfers up to that time could in any event pass only an equitable estate. The purchaser of an equity is bound to take notice of a prior equity, and as between equities the prior one must prevail. 2 Story's Eq. (11 Ed.) § 1502; Vattier v. Hinds, 7 Pet. 252; Boone v. Childs, 10 Pet. 177; Nelson v. Wishon, 68 Mo. 387. There is no evidence that either Vernon or Shriver purchased from Pitcher for a valuable consideration and without notice. They should have averred and proved every fact necessary to make them innocent. Harris v. Norton, 16 Barb. 264; Boone v. Childs, 10 Pet. 210; Lloyd v. Lynch, 28 Pa.St. 419; Duncan v. Johnson, 13 Ark. 190.

MARTIN, C.

This was a suit in equity to divest defendants...

To continue reading

FREE SIGN UP