Gray v. Zellmer
| Decision Date | 11 April 1903 |
| Docket Number | 12,797 |
| Citation | 72 P. 228,66 Kan. 514 |
| Parties | EMMA H. GRAY v. AUGUST ZELLMER, JOHN KOCH, et al |
| Court | Kansas Supreme Court |
Decided January, 1903.
Error from Norton district court; A. C. T. GEIGER, judge.
STATEMENT.
THE defendant in error Koch purchased a quarter-section of land agreeing to pay $ 560 therefor. Of this he paid $ 60 cash and the owner mortgaged the land for $ 500 and thus obtained the balance. With Koch's consent the land was then conveyed to Zellmer, who was to hold the legal title until Koch should pay off this mortgage. This, it seems, was done with the thought that the seller would thereby be the better protected against the note for $ 500 which he had executed. Koch took possession under this sale and has held open and notorious possession under claim of ownership ever since.
Koch paid to Zellmer, as his agent, the interest upon the mortgage as it accrued and the principal in full, but Zellmer failed to transmit all of this money to the mortgagee. Finally, when the mortgage fell due, in order to obtain the money to discharge it Zellmer executed a mortgage upon the land to one Ambler to secure a note of $ 300, which money was used in discharging the balance of the $ 500 mortgage, Zellmer having theretofore paid $ 200 out of the money given him by Koch. Ambler trusted to the title as shown by the records and made no inquiry of Koch, who was in possession of the land, as to his rights. The Ambler mortgage was assigned to the plaintiff in error, and this action was one to foreclose it. She had personal judgment against Zellmer, but foreclosure was refused as against Koch.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. TITLE AND OWNERSHIP -- Possession as Notice. It is a general rule that open and notorious possession of real estate is constructive notice to all the world of the rights of the one in possession.
2. EQUITABLE ESTOPPEL -- One who has Knowledge. The doctrine of equitable estoppel does not operate in favor of one who has knowledge of another's rights, or who has convenient and available means of obtaining such knowledge.
3. MORTGAGE -- Subrogation -- Fraud of Agent. Subrogation to the rights of a prior mortgagee cannot be claimed, where his mortgage has been paid without the knowledge or consent of the mortgagor out of the proceeds of a subsequent invalid mortgage executed by an agent without authority.
L. H. Wilder, for plaintiff in error.
C. D. Jones, for defendant in error John Koch.
OPINION
Koch's possession of this land, being open and notorious, was notice to all the world of his rights therein and claim thereto. One seeking to be informed as to the title of real estate cannot safely limit his investigations to what is shown in the records of the county in which the land is situated. He must also inquire about, and take notice of, the rights of those who are in open and notorious possession of such real estate. It is a general rule that such possession is constructive notice to all the world of the rights of the one in possession. (Moore v. Reaves, 15 Kan. 150; Greer v. Higgins, 20 id. 420; Deetjen v. Richter, 33 id. 410, 6 P. 595; 23 A. & E. Encycl. of L., 2d ed., 498.) Therefore, both Ambler, when he took the mortgage, and Gray, when she took the assignment, knew, as a matter of law, that Koch, and not Zellmer, was the owner of the land.
It is contended, however, that inasmuch as Koch consented that the title should be put in Zellmer he is now estopped, as against one who has acted to his disadvantage upon the theory that Zellmer was the true owner, from asserting otherwise. The doctrine of equitable estoppel does not warrant this conclusion. It must be borne in mind that, while Koch was consenting that Zellmer should hold the title, he was at the same time asserting to all the world, by means of his possession, that he was the real owner of the property. The doctrine of equitable estoppel does not operate in favor of one who has knowledge of another's rights, or who has convenient and available means of obtaining such knowledge. One may not disregard the ordinary indices of danger and be protected by this doctrine. So it is held that actual occupancy of land gives thereby all the information necessary to prevent the operation...
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