Anthony v. Beal

• Decision Date: 31 October 1892
• Parties: Anthony, Appellant, v. Beal et al
• Court: Missouri Supreme Court

20 S.W. 326

111 Mo. 637

Anthony, Appellant, v. Beal et al

Supreme Court of Missouri, First Division

October 31, 1892

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

Boyle Adams & McKeighan for appellant.

(1) Aside from provisions of statute, the general rule is that a quitclaim deed simply transfers whatever interest the grantor may then have, and is subject to a prior deed of the same grantor, although the grantee had neither actual or constructive notice of such prior deed. Sharp v Cheatham, 88 Mo. 498; Munson v. Ensor, 94 Mo 509. (2) The rule is modified by statute so that the prior unrecorded deed is invalid except as between the parties thereto, and those having actual notice thereof. Revised Statutes, 1879, sec. 693. (3) But to entitle a grantee of land, without notice, to protection against a prior unrecorded conveyance, he must have parted with some valuable consideration. Aubuchon v. Bender, 44 Mo. 560; Bishop v. Schneider, 46 Mo. 472; Fox v. Hall, 74 Mo. 315. Direct and positive knowledge, and a knowledge of facts to which one chooses to be blind, lest following up the inquiry would lead to the disclosure, are both actual knowledge, not differing in kind, but only in the character of the proof. Hill v. Tissier, 15 Mo.App. 299. Where one is put upon inquiry, it is equivalent to knowledge of every fact which would have been disclosed by reasonable prosecution of the inquiry. Meier v. Blume, 80 Mo. 179; Swisher v. Sensenderfer, 84 Mo. 104. And where a purchaser is conscious of having the means of knowledge, but does not use them, he is chargeable with actual notice. Speck v. Riggin, 40 Mo. 405; Sensenderfer v. Kemp, 83 Mo. 582; 2 Pomeroy on Equity, sec. 597. The law imputes to a purchaser of land knowledge of all facts relating thereto appearing at the time of his purchase upon the muniments of title which it was necessary for him to examine in order to ascertain the sufficiency of such title. Mason v. Black, 87 Mo. 329; Wolfe v. Dyer, 95 Mo. 545. And he is bound to read a prior recorded deed in the light of all the facts shown upon its face, and is chargeable with the information such facts fairly and reasonably suggest. Wolfe v. Dyer, 95 Mo. 545. Proof of the notoriety of a fact is competent to show knowledge thereof by one whose interest is affected by such fact. Crane v. Railroad, 87 Mo. 588; Musick v. Barney, 49 Mo. 458. (4) A deed made by a minor may be disaffirmed after reaching majority by the making of another deed. Baker v. Knecht, 54 Mo. 82; Mfg. Co. v. Lamb, 81 Mo. 221. And any matter occurring after suit brought may be set up in a supplemental pleading. Revised Statutes, 1889, sec. 2104; Kortzendorfer v. St. Louis, 52 Mo. 204.

E. C. Kennen and George Robertson for respondents.

(1) The record at the time defendants bought disclosed a complete chain of title from the government down to Woodward, and the purchasers, Reed and Beal, were not bound to take notice of any deed of record outside of this chain. The deed from Cook to Hulda Anthony being outside of this chain was no notice to anyone of anything. Crockett v. McGuire, 10 Mo. 34; Tydings v. Pitcher, 82 Mo. 384; Sensenderfer v. Kemp, 83 Mo. 582; 1 Devlin on Deeds, sec. 713, and note; St. John v. Conger, 40 Ill. 537. The deed of the heir will prevail over the prior unrecorded deed of the ancestor. Youngblood v. Foster, 64 Mo. 239; Callaway v. Fash, 50 Mo. 422; Tiedeman on Real Property, sec. 817. (2) These defendants, Reed and Beal, paid a valuable consideration for their title, as did Woodward for the deed from Wilcox heirs, and, although they each took quitclaim deeds, a purchaser by quitclaim for value is as well protected by the registry acts as he would have been had he taken title by warranty deeds. Fox v. Hall, 74 Mo. 315; Boogher v. Neece, 75 Mo. 364; Willingham v. Hardin, 75 Mo. 429; Vance v. Corrigan, 78 Mo. 96; Campbell v. Gas Co., 84 Mo. 364; Cowell v. Grey, 85 Mo. 177; Anderson v. McPike, 86 Mo. 299; Sharp v. Cheatham, 88 Mo. 510; Munson v. Ensor, 94 Mo. 509; 1 Devlin on Deeds, sec. 672, and notes; Coal Co. v. Bingham, 97 Mo. 196. (3) Although Woodward may have procured his deed through fraud, or may have had notice of the prior unrecorded deed from Bruce Wilcox to Cook, yet he could give good title to an innocent purchaser or to one without such notice. Craig v. Zimmerman, 87 Mo. 475; 5 American & English Encyclopedia of Law, pp. 452-3. (4) Plaintiffs cause of action was barred by the statute of limitations and the judgment was, therefore, properly entered for defendants. Revised Statutes, 1879, sec. 3229; Hunter v. Hunter, 50 Mo. 488; Robinson v. Ware, 94 Mo, 678. (5) Plaintiff waived his right to complain of the action of the court in striking out a part of his amended petition by not standing upon his original pleading. His proceeding to trial upon the amended pleading was an acquiescence in this action of the court. Ely v. Porter, 58 Mo. 158; Gale v. Maupin, 47 Mo. 276; Fuggle v. Hobbs, 42 Mo. 537. (6) Plaintiff was guilty of such laches as will estop him now from making a claim adverse to defendant's interest. Landrum v. Bank, 63 Mo. 49; Kline v. Vogel, 90 Mo. 248; Stamper v. Roberts, 90 Mo. 688. (7) The court properly ruled in striking out that part of the amended petition charging that Helen D. and Robert B. Wilcox were minors when making the deed to Woodward and that since the commencement of this suit they had joined in a deed to plaintiff. The matter thus stricken out constituted a new and different cause of action than was stated in the original petition, and would require different proof to sustain it. Lumpkin v. Collier, 69 Mo. 170; Scovill v. Glasner, 79 Mo. 449.

OPINION

Brace, J.

This is a proceeding commenced in the Audrain circuit court on the fourteenth of November, 1888, under the provisions of article 4, chapter 58, Revised Statutes, 1879.

It appears from the record that notice of the filing of the petition was duly published as required by section 3455 of said act, and a copy of such notice served on H. F. Woodward, W. H. Beal, J. W. Reed, B. E. McNama and Abraham Whisner, two of whom, viz.: W. H. Beal and J. W. Reed, appeared at the January term, 1889, of said court and filed a demurrer to the petition, which being overruled, they afterwards on the twenty-second day of February, 1889, filed separate answers thereto, to which the plaintiff replied on the fourth day of June, 1889.

Afterwards on the twenty-sixth of July, 1889, the plaintiff having first obtained leave filed a supplemental and amended petition, in words and figures as follows, omitting caption, signatures and affidavit:

"Your petitioner, the said plaintiff, now comes and represents and shows to the court by way of amended and supplemental petition herein, leave of court having been first had and obtained, that he is the owner by fee simple absolute of the northeast quarter of section 36, township fifty-two (52) north, range 7 west of the fifth principal meridian in said county of Audrain; that the title to said land passed out of the United States to one Thomas H. Luck by patent dated December 1, 1857, and which was recorded in the recorder's office of said county of Audrain, on the first day of April, 1869, in book R, page 612; that on, to-wit, the twenty-first day of April, 1858, said Luck, by deed of general warranty, sold and conveyed said land to one Thomas B. Hudges, Jr., which deed was recorded in the office of recorder of deeds of said Audrain county, on, to-wit, the sixth day of July, 1858, in book 1, page 432.

"That on, to-wit, the twenty-eighth day of June, 1858, said Thomas B. Hudges, by deed of general warranty, conveyed said lands to one Bruce Wilcox, which deed was duly recorded in the office of the said recorder of deeds, on, to-wit, the sixth day of July, 1858, in book 1, page 433.

"That on, to-wit, the day of October, 1862, as he is informed and believes and charges the said Bruce Wilcox and his wife, Abigail D. Wilcox, by deed of quitclaim, duly delivered, conveyed said land for a valuable consideration to one Wm. Z. Cook.

"That on, to-wit, the twenty-fourth day of October, 1862, said Cook and his wife, by deed of general warranty, conveyed said land to one Hulda Anthony, which deed was duly recorded in the office of the recorder of deeds for said county, on the first day of May, 1863, in book L, page 584.

"That on, to-wit, the fifth day of November, 1888, the said Hulda Anthony conveyed by general warranty deed said land to plaintiff.

"Your petitioner states that as he is informed and believes and charges the said W. Z. Cook, upon receiving said deed to said land from the said Bruce Wilcox and wife, to-wit, on or about the day of October, A. D. 1862, sent by mail from Rochester, New York, postage prepaid, said deed, for record, to the recorder of deeds of said county of Audrain including lawful fee with instructions when recorded to send same to plaintiff.

"Your petitioner states that said deed as he is informed and believes and so charges the truth to be was lost or miscarried and never reached said recorder, or, if it did reach him, was by him lost or mislaid, so that it never was recorded.

"Your petitioner states that as he is informed and believes and so charges the said Wm. Z. Cook furnished the purchase money, to-wit, $ 2,700, to buy said land from said Hudges and caused the title to be put in the name of said Wilcox as trustee for said Cook, and said lost deed was given for the purpose of executing said trust and putting the title in said Cook, which said lost deed was properly acknowledged by said Wilcox and wife, recited a nominal consideration, named said Cook as grantee and contained the general granting and conveying words of quitclaim deeds.

"Your peti...