B v. Cooper

• Decision Date: 07 December 1912
• Docket Number: 17,215
• Citation: 88 Kan. 210,128 P. 362
• Parties: W. B, PENROSE, Appellee, v. S. W. COOPER et al. (S. W. COOPER, Appellant)
• Court: Kansas Supreme Court

128 P. 362

88 Kan. 210

W. B, PENROSE, Appellee, v. S. W. COOPER et al. (S. W. COOPER, Appellant)

No. 17,215

Supreme Court of Kansas

December 7, 1912

Decided July, 1912.

Appeal from Sedgwick district court. Opinion on rehearing filed December 7, 1912. Reversed. (For original opinion, see 86 Kan. 597, 121 P. 1103.)

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PURCHASER--Notice--Unrecorded Deed--Due Diligence. Before filing an action in ejectment plaintiff, without actual notice of an unrecorded deed, inquired of the tenant on the premises and learned the name of the person to whom the tenant paid rent. Relying upon his knowledge that the same person had acted as the attorney for the record title-holder and had been until a few days before renting the premises as agent for the record owner, he made no further inquiry. It did not appear that further inquiry of the tenant would have disclosed the existence of the unrecorded deed or the claim of the grantee therein. Upon these uncontroverted facts it became a question of law whether he exercised due diligence; and upon the facts as stated it is held that he was not bound to make further inquiry.

J. A Brubacher, J. A. Conly, and Stanley, Vermilion & Evans, all of Wichita, for the appellant.

S. W. Shattuck, jr., of Wichita, for the appellee.

PORTER J. JOHNSTON, C. J., MASON and BENSON, J. J., dissenting.

OPINION OPINION ON REHEARING.

PORTER, J.:

A rehearing was granted in this case and the only point reargued is this: Upon the facts found by the jury was it a question of law to be determined by the court, or one of fact for the jury, whether the appellant exercised due diligence? The sixth paragraph of the syllabus of the former opinion reads:

"The plaintiff, who occupied the relation of a purchaser without actual knowledge of an unrecorded deed, inquired of the tenant and learned the name of the agent to whom the tenant paid rent. Relying upon his knowledge of the fact that the same person had been, until a short time before that, managing the property as agent for the record owner of the title, he failed to make any inquiry of the agent to learn the name of the owner. Upon these facts, it is held that the question whether he acted with due diligence was one for the jury to determine, and not of law for the court." ( Penrose v. Cooper, 86 Kan. 597, 121 P. 1103.)

The facts are fully stated in the opinion in the former hearing. So far as pertinent to the question here they are as follows: S.W. Shattuck, jr., was the attorney and agent for the Anthony Investment Company, which was in possession under a tax title. Shattuck had appeared as its attorney in a former ejectment suit brought by Cooper, which was dismissed by the plaintiff without prejudice October 1, 1901. The next day the investment company made a quitclaim deed to W. B. Penrose, a son-in-law of the president of the company. From March, 1901, Shattuck had been in charge of the property as agent for the company, securing tenants and collecting the rents. After the execution of the quitclaim deed to Penrose he continued in charge of the property in precisely the same way, but held a paper signed by Penrose authorizing him to represent Penrose under the direction of the president of the investment company. The tax deed would become five years old on December 7, 1901. Cooper, desiring to begin another action before that date, went to the property about December I for the purpose of ascertaining what interest, if any, the tenants occupying the place had or claimed, in order that he might make every person known to be interested a defendant. He inquired of the tenants and was informed by them that they paid rent to S.W. Shattuck, jr. He knew that the latter had been representing the investment company which held the record title, both as attorney and as agent in charge of the property. Cooper, with knowledge of these facts and with no actual notice or knowledge of the existence of the quitclaim deed to Penrose, which had been withheld from record, made no further inquiry. There is no evidence nor finding to show that if he had made any further inquiry of the tenants he would have learned the true state of the title. The jury, in answer to special questions, have found that Cooper had no actual notice of the outstanding deed; also that in their opinion he did not exercise due diligence to ascertain whether or not any other person had or claimed an interest in the property. They have found, however, every fact from which they have drawn the conclusion that he failed to exercise due diligence, and it may be said that the evidence fails to disclose any other fact or circumstance putting the appellant upon inquiry or notice of the existence of the deed to Penrose or that Penrose had claimed any interest.

The recording act (Gen. Stat. 1909, § 1672) provides that conveyances of real estate not filed for record shall be void except as between the parties thereto and such persons as have actual notice thereof. In the recent case of Faris v. Finnup, 84 Kan. 122, 113 P. 407, it was ruled as follows:

"Under the statute providing that no conveyance of real estate shall be valid, except as between the parties and as to those who have actual notice, until it is deposited for record (Gen. Stat. 1909, § 1672), actual notice may be express, when it consists of knowledge actually brought personally home, or it may be implied, when it consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. In the latter case, the known facts must be sufficiently specific to impose the duty to investigate further, and they must furnish a natural clue to the ultimate fact." (Syl. P 1.)

Where due diligence is a mixed question of law and fact it is beyond any doubt one for determination of the jury.

"The question of actual notice is one of fact for the jury, but whether constructive notice is imputable to a party from particular facts is a question of law for the court, especially where the facts are not controverted." (29 Cyc. 1126.)

In C. B. U. P. Rld. Co. v. Henigh, Adm'r, 23 Kan. 347, 33 Am. Rep. 167, it was held that where the jury stated the facts in detail and made a general finding that the defendant was guilty of negligence the latter amounted to nothing more than a conclusion from the detailed facts and that the detailed facts govern. In the opinion Valentine, J., speaking for the court, said: "Generally, when the facts are established, it is a question of law for the court to determine whether they constitute negligence, or not, and generally, when the jury find the facts in detail, they can not then say, in general terms and conclusively, that such facts constitute negligence, unless they in fact do constitute negligence." (p. 359.) And for the reason that this court held there was no culpable negligence shown by the facts as found, the judgment was reversed and judgment ordered in defendants' favor. The case has been followed and approved in numerous instances. (A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 115, 27 P. 824; A. T. & S. F. Rld. Co. v. Brown, 2 Kan.App. 604, 42 P. 588, 2 Am. & Eng. Rld. Cas., n. s., 113; Railway Co. v. Laughlin, 73 Kan. 567, 85 P. 597.) The same principle had previously been declared in A. T. & S. F. Rld. Co. v. Plunkett, Adm'r, 25 Kan. 188.

Applying the doctrine of Faris v. Finnup, supra, can it be said here that the known facts were such as to impose upon Cooper the duty to investigate further, and were they such facts as must have furnished a natural clue to the ultimate fact, the existence of the Penrose deed? It is elementary that the presumption of actual notice arising from circumstances may be rebutted by the person sought to be charged. Thus in Chadwick v. Clapp, 69 Ill. 119, it was held:

"Where circumstances are brought directly home to the knowledge of a purchaser, sufficient to put him upon inquiry, and thus amount to notice, he will be entitled to rebut the presumption of notice which would otherwise arise, by showing the existence of other and attendant circumstances of a nature to allay his suspicions, and lead him to suppose the inquiry was not necessary.

"Where the circumstances relied on as sufficient to charge a party with notice, by requiring him to make inquiry, may be equally as well referred to a different matter or claim, as to the one he is sought to be chargeable with notice of, they will not be sufficient." (Syl. PP 2, 3.)

The same doctrine, expressly declared by this court in Faris v. Finnup, supra, and by the Illinois court in the opinion above quoted, was stated by the court in Cook v. Travis, 20 N.Y. 400, where it was said:

It is quite true, generally, that the law regards the actual occupancy of land as equivalent to notice to all persons dealing with the title, of the claim of the occupant. But this is not an absolute proposition which is to be taken as true in all possible relations. The circumstances known may be such that the occupancy will not suggest to a purchaser an inquiry into the title or claim under which it may be held; and...