Tydings v. Pitcher

Decision Date30 April 1884
Citation82 Mo. 379
PartiesTYDINGS et al. v. PITCHER et al., Appellants.
CourtMissouri Supreme Court

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 R. 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 of title to a tract of land and vest the same in plaintiff, Catharine E. Tydings. It was commenced on the 24th day of April, 1877. The only point in the case, necessary to consider, involves the question of constructive notice, to purchasers of land, of outstanding titles or equities.

The land is a part of what is known as the “Swamp Land Selection,” donated to the State by act of congress. The title of both sides to this controversy starts from William A. Tieman. The defendants' chain begins with a judgment in an attachment suit against Tieman in which the land was attached in favor of one Nathan Bray on the 11th of September, 1866. At the execution sale which came off on the 6th of October, 1866, the defendant, Oliver S. Pitcher, became the purchaser and received the sheriff's deed for the land. In November, 1867, Pitcher, by virtue of his title as evidenced by the sheriff's deed, obtained a deed from the county of Jasper; and in December, 1868, he acquired a patent from the State. In April, 1869, Pitcher conveyed to Vernon, and in November, 1870, Vernon conveyed to defendant, Shriver, the present possessor of the land. Mrs. Tydings' title rests upon a deed from William A. Tieman dated November 16th, 1860, to W. C. Rickerson, her former husband. Rickerson, by deed of April, 1861, conveyed to Moses R. Harris, and on the 10th of July, 1861, Harris conveyed to the plaintiff, Mrs. Tydings. It seems that Rickerson owned the land before Tieman acquired title and on the 27th day of February, 1860, conveyed it to him by warranty deed. The deed of Tieman conveying the land back to Rickerson in November, 1860, seems to be without any seal, although it recites the affixing of seals. It was not recorded till June 6th, 1867. It was again recorded September 4th, 1878. Both of these recordings were subsequent to the purchase by Pitcher.

In the deed of Rickerson to Tieman of February 27, 1860, is contained the following recital: “Witnesseth that the said William C. Rickerson and Catharine his wife for and in consideration of the sum of $720 to-wit: $25 cash and other considerations, consisting of notes of this date amounting to $515, the receipt whereof is hereby acknowledged, do hereby grant bargain, sell, etc.” This deed was acknowledged and recorded in April and May, 1860. On the 16th day of March, 1861, was recorded another deed from Rickerson to Tieman, dated March 6, 1861, which makes conveyance of other property therein described for a recited consideration of $1,500. In this deed occurs the following habendum clause, which, it is claimed, refers to the land in controversv and the unpaid purchase notes mentioned in it:

“To have and to hold upon this express condition: Whereas, the said William Tieman executed two certain promissory notes for about $300 each to William C. Rickerson, said notes are described in a deed of conveyance from said Rickerson to the said Tieman, which sale is null and void, and the notes are to be used for the payment of the within named land. The land on which the notes were given is as follows, to-wit: the southeast quarter of the south half of section 1, township 29, range 32, containing 160 acres; also three other promissory notes dated September 25, 1860, each for $239.60, due twelve, twenty-four and thirty-six months after date. It is expressly understood that when the above described notes are paid the said Rickerson binds himself to warrant and defend the title to the land to the said Tieman,” etc.

The only oral testimony submitted by defendants at the trial came from Mr. Pitcher, who, in substance, testified that when he bought the land in 1866, he was living close to it and owned a good deal of the land in the neighborhood; that he saw it advertised for sale and went to Mr. Bray, the execution plaintiff, to inquire about the title; that he was told by him it was good and was advised by him to buy the judgment if he wanted to buy the land; that he bought the judgment, paying its full value; that he had no notice till long after the sale of any adverse claim to the land; that he examined the records before the sale and found the deed from Rickerson to Tieman of February 27, 1860, and concluded that the title was good, as he found no deed from him; that he did not see the record of the second deed between Rickerson and Tieman of March 6, 1861, until several weeks or months after the sale, when he examined the records again; that he bought the land largely upon the representations of Mr. Bray; that he was a lawyer by profession but was not practicing at that time, but commenced again within a year after that time; that he never saw the deed of March 6, 1861, revoking the prior deed until, at least, six months after he had bought the land, and that he did not care anything for the other land levied upon under the same execution as it was rocky and worthless and was bid in by him only as incidental to his other purchase. The court upon this evidence rendered its decree divesting the defendants of all title to the land, and vesting the same in plaintiff and adjudging that plaintiff have nothing by way of rents and profits but that they should be offset with defendants' improvements. From this decree the defendants appeal.

Unquestionably a deed of conveyance, or instrument of any kind, lying outside of the chain of title, will impart no notice to a purchaser. Crockett v. Maguire, 10 Mo. 34; Dingman v. McCollum, 47 Mo. 372; Burke v. Beveridge, 15 Minn. 205. In accordance with this principle, the second deed of Rickerson to Tieman, made and recorded more than a year after he had parted with his title by a former recorded deed, would constitute no notice of itself or any recital in it. It may be passed here without further consideration. But it is equally true that a purchaser is bound with constructive notice of all recorded instruments in the chain of title he is buying, as well as all recitals in them. Scott v. McCullock, 13 Mo. 13; Durette v. Briggs, 47 Mo. 356.

In obedience to this principle it becomes necessary for us to consider the effect of the recital in the first deed of...

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