Bannard v. Duncan
| Decision Date | 24 May 1907 |
| Docket Number | 14,792 |
| Citation | 112 N.W. 353,79 Neb. 189 |
| Parties | OTTO T. BANNARD, APPELLEE, v. MARY E. DUNCAN ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
W. E Gantt, for appellants.
Milchrist & Scott and William P. Warner, contra.
JACKSON C. DUFFIE and ALBERT, CC., concur.
The plaintiff had a decree quieting his title in certain real estate. The defendants appeal.
The plaintiff's chain of title is based on a patent issued August 20, 1869, to David Brendlinger, a quitclaim deed from David Brendlinger to J. M. Morse and John Comstock, dated August 12, 1885, recorded August 15, 1885, for a consideration of $ 40, a tax deed issued by the county treasurer June 26, 1880, to Thomas L. Griffey, a quitclaim deed from Thomas L. Griffey to John Comstock under date of October 1, 1885, for the consideration of $ 269, recorded October 9, 1885, and a warranty deed from John Comstock and wife and James M. Morse and wife, dated December 5, 1891, to Stephen Cain, recorded December 14, 1891, for the consideration of $ 1,200. The latter deed appears to have been made pursuant to a contract of sale between the parties in 1888. Cain borrowed the money to make the payment from the Fidelity Loan & Trust Company, and gave a mortgage for $ 1,200 to that company under date of December 2, 1891, recorded December 12, 1891. This mortgage, by a series of assignments, came into the possession of the Fidelity Securities Company, and, default having been made in the performance of the conditions of the mortgage, the latter company instituted foreclosure proceedings and had a decree of foreclosure in June, 1897. The property was sold in December, 1898, to the plaintiff herein, the sale confirmed, deed issued, and recorded January 13, 1899. The defendants claim under a warranty deed from David Brendlinger executed September 24, 1870, recorded January 11, 1898.
The first contention of the appellants is that the plaintiff's petition fails to state a cause of action, for the reason that it is not charged that the plaintiff is a bona fide purchaser of the land in controversy. The plaintiff's petition recites the several conveyances upon which the title is based, and alleges that Stephen Cain, for a consideration of $ 1,200, purchased the land from John Comstock and James M. Morse, and received a conveyance with covenants of warranty, which he caused to be recorded; that the transaction was in good faith, without knowledge, either actual or constructive, of any adverse claim by the defendants or any other person or persons; relying upon the deed and the title as it appeared of record, that Cain immediately went into possession, and that such possession continued for more than ten years; that the Fidelity Loan & Trust Company took its mortgage from Cain and wife in good faith and without notice of any adverse conveyance or claim of equity existing in favor of the defendants, relying upon the title of Cain. The petition does not charge in express terms that the plaintiff purchased the property at the sheriff's sale in good faith, nor do we think it important that it should do so. The purchaser of real estate at judicial sale under the foreclosure of a mortgage buys at his peril, but he acquires all of the interest of the mortgagor and the mortgagee in the mortgaged premises. He acquired that interest as effectually as he would have done by deed from the parties, and he may protect himself under their rights. Snowden v. Tyler, 21 Neb. 199, 31 N.W. 661; Byron Reed Co. v. Klabunde, 76 Neb. 801, 108 N.W. 133. The bona fides of the interest in the property acquired by Cain and the trust company appears from the petition, and the pleading is sufficient to meet that contention.
The next complaint is that the evidence is insufficient to sustain the decree. One feature of this contention arises out of the quitclaim deed from Brendlinger to Morse and Comstock, and the contention that such a conveyance is subject to all existing equities against the grantor. That rule, however, does not go to the extent claimed for it by the appellant. We have never gone to the extent of holding that a good faith purchaser might not acquire title to real estate by quitclaim as against an unrecorded, outstanding conveyance, of which the purchaser had no knowledge. In Snowden v. Tyler, supra, it is said that a quitclaim deed, while affording cause of suspicion, where it appears in a chain of title in the proper records of the county, is sufficient to justify a bona fide purchaser for a valuable consideration in relying upon it as a valid defense. It is the bona fide purchaser who is protected. To the same effect is Schott v. Dosh, 49 Neb. 187, 68 N.W. 346. It appears from the testimony of Cain that before he purchased the property from Morse and Comstock he procured an abstract of the title to be made by the county clerk of the county where the land is situate, found no conveyance of record affecting the title of his grantors, and that he bought the property (so far as the record discloses) for a full consideration, relying upon the record title. The outstanding tax lien at the time of the purchase by Morse and Comstock would furnish a sufficient reason why Brendlinger would not care to give a warranty deed. It is also disclosed that, before advancing the money upon the loan made to Cain, the Fidelity Loan & Trust Company procured the title to be examined by an attorney, who, finding no conveyances of record affecting Cain's title, advised that company that their mortgage constituted a first lien on the premises. This evidence is not disputed, and is sufficient to justify the trial court in concluding that Cain was a bona fide purchaser, and that the rights of the mortgagee could not be affected by the unrecorded conveyance under which the defendants claim title.
The conveyance from Brendlinger to Morse and Comstock is in the following form: "Know all men by these presents, that I David Brendlinger ...
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