Edwards v. Myers

• Decision Date: 12 January 1929
• Docket Number: 28,170
• Citation: 273 P. 468,127 Kan. 221
• Parties: MARY E. EDWARDS, Appellant, v. JAMES A. MYERS, Appellee
• Court: Kansas Supreme Court

273 P. 468

127 Kan. 221

MARY E. EDWARDS, Appellant, v. JAMES A. MYERS, Appellee

No. 28,170

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VENDOR AND PURCHASER--Registration Law--Persons Protected. R. S. 67-223 is for the protection of a purchaser of real property for a valuable consideration without actual notice of an outstanding unrecorded conveyance.

2. SAME--Registration Law--Actual Notice. The "actual notice" mentioned in R. S. 67-223 may be express or implied. It is implied when it consists of knowledge of facts so informing that a reasonably cautious person would be prompted to further inquiry, which further inquiry would inform him of the outstanding unrecorded conveyance.

David F. Carson and William Drennan, both of Kansas City, for the appellant.

C. W. Trickett, of Kansas City, for the appellee.

OPINION

HARVEY, J.:

This is an action in ejectment. Defendant answered and sought to quiet his title. It was tried to the court, judgment was for defendant, and plaintiff has appealed.

The facts as disclosed by the record and statements of counsel are as follows: The plaintiff is defendant's sister. Their father, J. N. Myers, was the owner of quite a tract of farm land in Wyandotte county on which he had lived for many years and reared his family. In 1916 J. N. Myers, being then a widower, executed four deeds, one to each of his four children, conveying to each certain described land then owned by him. Collectively these deeds conveyed all the land owned by him except about fifteen acres. In form they were warranty deeds, but contained a clause by which the grantor reserved the rents and profits of the land during his lifetime, and also contained this clause: "This deed is delivered, but it is not to be recorded until after the death of the grantor." Plaintiff, the youngest child, had not then reached her majority, and was living at home with her father. She married in 1918, and she and her husband lived at the old home place with her father until sometime in 1920; then some discord arose and she and her husband moved away. The father continued to live at the old home place until his death, March 6, 1925, and for the last year or more before his death took his meals at the home of his son, the defendant, who lived on land adjoining the old home place on the north, which had been conveyed to him by the deed of his father in 1916.

The deed to plaintiff was recorded March 11, 1925. It conveyed to her the old home place, being a tract of about 48 acres, which was specifically described by metes and bounds. Plaintiff claims under this deed.

On August 19, 1924, J. N. Myers executed to the defendant a general warranty deed for three small tracts of land, describing them by metes and bounds. One of these tracts was 25 feet wide by 204 feet long, another was 100 feet by 284 feet. These two tracts constituted a part of the yard or garden of defendant as the same was then being used by him. A third tract was a roadway 16 feet wide leading across the old home place from the residence of defendant north thereof to a main highway south of it. This particular strip had been used as a private driveway for many years and passed between the house and the barn on the old home place. This deed was recorded August 19, 1924. All of the land described therein was within the description of the deed from J. N. Myers to plaintiff. The defendant claimed title to it by reason of the deed of August 19, 1924. The action here is for the possession of these three small tracts of land.

Appellee in the main seeks to sustain the judgment of the trial court under our registry statutes, and especially R. S. 67-223, which reads:

"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 register of deeds for record."

Appellant contends that this statute, as it has been heretofore construed, does not sustain the judgment of the trial court, for the reasons: First, that appellee cannot take advantage of that statute without showing that he was a purchaser for a valuable consideration of the tracts of land in controversy, which he did not show--in fact, his evidence was to the contrary; and, second, that the trial court misconstrued the words "actual notice," as used in the statute. Both of these contentions must be sustained.

As to the first of these contentions it may be said: Our original registry act (Laws 1859, ch. 30, § 13) provided:

"No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice, unless recorded . . ."

Construing this statute in Coon v. Browning, 10 Kan. 85, it was held: "Priority over an unrecorded deed could be claimed only by a purchaser for a valuable consideration." That is, one to be within the benefit of the statute must in fact have been a purchaser of the real property in question for a valuable consideration and without notice of the prior unrecorded deed. In 1868 our registry act was amended and chapter 30 of Laws of 1859 repealed by chapter 22 of the General Statutes of 1868, section 21 of which has since remained unchanged and is our present R. S. 67-223. It may be noted that this amended statute does not use the phrase "for a valuable consideration," as did the statute of 1859. However, in view of the general purpose of registry laws and other sections of the statute relating thereto, it has been held that this section can be taken advantage of only by those who are purchasers, or who have acquired liens for a valuable consideration and without actual notice of the prior unrecorded instrument. See Holden v. Garrett, 23 Kan. 98; Morris v. Wicks, 81 Kan. 790, 106 P. 1048; and Kruse v. Conklin, 82 Kan. 358, 108 P. 856, where it was specifically held: "An unrecorded conveyance of real estate is good except as against a person who purchases without notice thereof and for a valuable consideration." The general purpose of the recording act is stated in Gibson v. Uppenkamp, 83 Kan. 74 at 74-78, 109 P. 781, as "to impart notice to creditors and purchasers"; and in the specially concurring opinion in Faris v. Finnup, 84 Kan. 122, 128, 113 P. 407, it was said: "The object of the recording act is to protect those who deserve protection . . ." In School District v. Taylor, 19 Kan. 287, and in Gibson v. Uppenkamp, supra (p. 79), it is pointed out that the specific section of the registry act under consideration cannot in all cases be literally construed, and should not be construed apart from the purpose for which registration laws are enacted.

Applying this statute, and the interpretation heretofore given to it by this court, to the case before us it is clear that defendant cannot avail himself of this section of the registry act without showing that he was a purchaser, for a valuable consideration, of the three tracts of land in dispute. It is further clear that evidence on his behalf fails to show any consideration for the deed to him of August 19, 1924. The deed recites a consideration of one dollar, but there is no evidence even that was paid; but if it was it would constitute only a nominal consideration as distinct from a valuable consideration. (Morris v. Wicks, 81 Kan. 790, 792, 106 P. 1048. See, also, page 794 as to the testimony concerning the consideration.) In this case, with respect to actual consideration for this deed, the defendant testified:

BY DEFEN...