Drey v. Doyle

• Decision Date: 04 November 1889
• Citation: 99 Mo. 459,12 S.W. 287
• Parties: DREY v. DOYLE.
• Court: Missouri Supreme Court

12 S.W. 287

99 Mo. 459

DREY v. DOYLE.

Supreme Court of Missouri.

November 4, 1889.

BONA FIDE PURCHASERS — LANDLORD AND TENANT — NOTICE TO QUIT.

1. Under Rev. St. Mo. § 693, providing that no conveyance shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record, the notice to a purchaser of real estate which will make his interest therein subject to a prior unrecorded lease, is a question of fact, and in an action by him against the lessee it is sufficient to instruct the jury that knowledge of such facts as would put an ordinarily prudent person upon inquiry in regard to defendant's title, and lead him to discover the truth respecting it, is actual notice, and that knowledge of defendant's possession is evidence tending to show actual notice of his title.

2. An instruction that, to entitle a purchaser to protection against a prior unrecorded lease, it must appear otherwise than from the mere recital of the deed that he paid a valuable consideration, is properly refused, where in such deed he assumes the payment of an incumbrance upon the property, which, of itself, constitutes him a purchaser for value.

3. Where the vendee sends to the lessee a notice to quit, which is irregular in respect of the time for its expiration, the lessee waives the irregularity by replying that he holds a lease from the grantor, and intends to retain possession until its termination. BARCLAY, J., dissenting.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Jos. S. Laurin, for appellant. John R. Christian and David Goldsmith, for respondent.

BLACK, J.

This is ejectment for a lot in St. Louis upon which there is a livery stable. Doyle, the defendant, leased the property from Mr. Lucas for a period of five years, the term ending the last of May, 1884. The lease, though in writing, was never recorded. The evidence tends to show that at the expiration of the lease the parties agreed upon a renewal for four years upon the same terms, except the rents were increased from $720 to $840 per annum, payable monthly. Defendant continued to occupy the premises, paying the agreed rental. By a writing, which was never recorded, bearing date the 21st June, 1884, but in fact executed not earlier than 21st June, 1886, the lease was renewed for the further period of four years, thus reaching back and covering the two years for which there was no written lease. Mr. Lucas conveyed this and other property to Mr. Nelson by a deed executed and recorded on the 9th July, 1886. Nelson conveyed the undivided one-half to Hammitt, and these two persons conveyed the lot in question to plaintiff, Drey, by a deed dated the 14th and recorded the 28th July, 1886, for the recited consideration of $20,000. Nelson and Hammitt were to have the July rents, which were collected by Turner, who was the agent of Mr. Lucas, and paid to them. This is the only evidence tending to show that they had any notice of the renewed lease. Turner had collected the rents for several years, and he says he did not know that defendant had a written lease. When plaintiff purchased he evidently knew the defendant occupied the property as a tenant on some terms. He says he saw defendant at the stable after he had made the purchase and paid part only of the purchase money; that he told defendant of the purchase, and asked the latter what rent he would pay; that defendant said he would pay the same he had been paying to Lucas, but not a cent more, unless better improvements were put upon the property; that defendant did not then claim to have a lease; and that he (plaintiff) first heard of the written lease after he had completed the purchase, and then through defendant's attorney. Defendant says he told plaintiff of the lease in the conversation at the stable just mentioned; that plaintiff and another person came to the stable in the preceding February to look at the property for a warehouse, and he then told them of his lease. This conversation is denied by plaintiff. On this evidence the court gave a number of instructions, one of which is as follows: "(No. 6.) By the term `actual notice,' as used in the instructions, the jury are not to understand that plaintiff and said Nelson must have actually seen the written renewal of said lease, or been informed of its existence. Knowledge by them of facts, if they had such knowledge as would put an ordinarily prudent person on inquiry as to the nature of defendant's title, and lead him to discover the truth respecting the same, is equivalent to actual notice. And the court further instructs you that the fact, if it be a fact, that the defendant was in the open, notorious possession of the premises in controversy at the date of the respective purchases by plaintiff and Nelson, and that they were aware of such possession, if it appears that they were aware of such possession, is evidence tending to show actual notice of defendant's title."

The defendant takes the ground here that possession by him and knowledge thereof by these purchasers is actual notice to them of his renewed lease, and that the jury should have been so instructed in terms. The instructions asked by the defendant and refused by the court all proceed upon the theory that such possession and knowledge is evidence from which the jury could infer notice, and all this is embraced in the instructions given. Having asked no instructions presenting the theory of law now contended for, he is in no position to demand a reversal because the instructions given do not go as far in his favor as they might have gone. But the part of the instruction in question goes far enough. According to our statute, "no such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record." Section 693, Rev. St. What then is actual notice, within the meaning of this act? This court said in Vaughn v. Tracy, 22 Mo. 420: "The former [actual notice] was actual knowledge or information; and the latter [implied notice] facts and circumstances not amounting to knowledge or information, from which the law conclusively presumed notice, and which it would not allow to be contradicted by contrary evidence. Actual notice, like any other fact, might be proved by direct evidence, or inferred from the facts and circumstances of the transaction; but however proved, whether by direct evidence, or inferred from other facts, it was actual notice, and clearly distinguishable from implied notice. * * * We think the legislature here referred to actual notice as contradistinguished from implied notice, both of which were well-known terms in our law when the act was passed; and we all concur in reversing the present judgment upon the ground that possession is not, as the circuit court seemed to suppose, as a mere matter of law, actual notice, within the meaning of our recording acts." That case came before this court again, and is reported in 25 Mo. 318. The plaintiff had been in possession of a mill-site, with an acre of ground attached, for eight or ten years, claiming under an unrecorded purchase. The defendant purchased a tract of which the mill-site was a part. He had never seen the land, but his declarations were put in evidence to the effect that his grantor told him plaintiff had a...