Chumasero v. Vial

• Decision Date: 31 January 1879
• Citation: 3 Mont. 376
• Parties: CHUMASERO, appellant, v. VIAL, respondent.
• Court: Montana Supreme Court

3 Mont. 376

CHUMASERO, appellant,

v.VIAL, respondent.

Supreme Court of the Territory of Montana.

January Term, 1879.

Appeal from Third District, Lewis and Clarke County.

THIS action was tried by WADE, C. J., without a jury.

CHUMASERO & CHADWICK and W. F. SANDERS, pro se, for appellants.

The appellants were bona fide purchasers without notice of any outstanding equities between Turner and Vial. The secret trust between these persons cannot affect appellants, who in law and equity are entitled to protection against it. Perry on Trusts, § 218; Prevo v. Walters, 4 Scam. 35;Moore v. Hunter, 1 Gilm. 317; Martin v. Dryden, Id. 187.

A purchaser in good faith is one who has advanced the consideration of the purchase, or a creditor, who applies the purchase-money in payment of his debt, or one who buys at an execution sale to satisfy a debt. A creditor, who satisfies an execution to the extent of his bid, is a bona fide purchaser. Jackson v. Town, 4 Cow. 605;Ray v. Birdseye, 5 Denio, 625; Herman on Execution, §§ 328, 338; Hunter v. Watson, 12 Cal. 363;Wood v. Chapin, 13 N. Y. 509;Ayers v. Duprey, 27 Tex. 593;Evans v. McGlasson, 18 Iowa, 150; Miller v. Finley, 26 Mich. 249;Wood v. Moorehouse, 1 Lans. 412.

The title of a purchaser at an execution sale relates back to the date of the judgment. Such a purchaser is treated as if he had bought at the same date from defendant in the execution. McClure v. Englehardt, 17 Ill. 47;Reichert v. McClure, 23 Id. 516;Robinson v. Rowan, 2 Scam. 501.

A purchaser at a sale under a judgment is protected from claims of third persons, of which he had no notice, the same as a purchaser at a private or voluntary sale. Leeds v. Marine I. Co., 2 Wheat. 380;Gilner v. Poindexter, 10 How. 257;Goepp v. Gartiser,35 Penn. St. 130; Paine v. Moorland, 15 Ohio, 435;Butterfield v. Walsh, 36 Iowa, 534.

Purchasers at execution sales are to the same extent as other purchasers entitled to the benefit of statutes requiring instruments affecting the title to real estate to be recorded. Waldo v. Russell, 5 Mo. 387;Scribner v. Lockwood, 9 Ohio, 184;Stewart v. Freeman,22 Penn. St. 120.

Where one claims under an unrecorded deed, he must prove actual notice, to entitle him to recover. Curtis v. Mundy, 3 Metc. 406; Lawrence v. Stratton, 6 Cush. 163;Sibley v. Leffing-well, 8 Allen, 584.

Our statute provides that conveyances, or agreements to convey real estate, to operate as notice, shall be recorded. Cod. Sts. 400, §§ 23, 25.

E. W. & J. K. TOOLE, for respondent.

There was no motion for a new trial, and the facts cannot be reviewed on this appeal.

Under our statute, the purchaser acquires no greater title than the judgment debtor had at the time of the levy and purchase. If the judgment debtor had no beneficial interest in the property that would pass by the sale, the statute defines his remedy and rights. Cod. Sts. 87, § 279; 89, § 286; Harston's Pr., § 708 and notes; Cross v. Zane, 47 Cal. 603. In the absence of the statute the rule is the same.

BLAKE, J.

The appellants bring this action in the nature of ejectment to recover the possession of certain mineral land. The complaint alleges that the title of the appellants is based upon their purchase of the property at a sale thereof by the sheriff of Jefferson county, Montana Territory, by virtue of an execution issued in favor of C. K. Peck and against J. A. Vial. No question arises respecting the validity of the judgment obtained by Peck against Vial, and the proceedings under the execution. Vial and D. C. Turner, two of the respondents, stated in their answers that Turner owned the property at the time when the officer levied upon and sold it.

The case has been brought before this court by an appeal from the judgment of the court below. No motion for a new trial has been made. A jury was waived at the trial and the findings of the facts and conclusions of law appear in the transcript. The court found that Turner was the legal owner of a part of the land and the equitable owner of a part thereof, the legal title to which was in Vial; that Turner furnished the money and purchased the same through Vial, who held a part thereof, at the time of the sale under said execution, in trust for Turner; that, at the commencement of this action, Vial had no interest in the property; and that Turner was entitled to the proceeds and possession of the same. A judgment was entered in conformity with these findings.

The appellants maintain that they are bona fide purchasers of the property without notice of any equities or trust between Vial and Turner, and that unrecorded deeds from Vial to Turner, of which the appellants had no notice, could not affect their title. Can the appellants be heard upon these propositions? This action was commenced June 19, 1877, and must be governed by the Civil Practice Act, approved January 12, 1872. The appellants did not request a finding in writing upon any issue of fact at the trial, nor move to correct the findings. The questions for our consideration are determined without difficulty. The argument of the appellants is based upon the assumption of certain facts, which have not been found by the court, and maintains that the findings are against the evidence, and that the evidence is insufficient to justify the same. This court cannot review the testimony and make proper findings. Barkley v. Tieleke, 2 Mon. 435. Questions of fact cannot be examined if there is no appeal from an order granting or refusing...