Hallett v. Alexander

• Decision Date: 06 March 1911
• Parties: HALLETT et al. v. ALEXANDER.
• Court: Colorado Supreme Court

114 P. 490

50 Colo. 37

HALLETT et al. v. ALEXANDER.

Supreme Court of Colorado

March 6, 1911

Error to District Court, City and County of Denver; Carlton M Bills, Judge.

Charles W. Waterman and W. C. Kingsley, for plaintiff in error.

William Young, for defendant in error.

WHITE J.

September 4, 1906, Johanna Alexander brought suit in the court below to partition certain lots in the city of Denver, claiming that she was the owner in fee of an undivided one-half interest in the premises by virtue of a sheriff's deed made to and held by her, purporting to convey the interest of John J Reithman therein. To this action Moses Hallett and Marie G Wagner were made parties defendant; the allegation being that Mrs. Wagner owned in fee an undivided one-half interest, subject to a mortgage held by Hallett. The pleadings present, and the proof shows, that one Magdalena Reithman died intestate January 17, 1905, leaving as her sole heirs at law her husband, John J. Reithman, and certain children, one of whom was her daughter, Marie G. Wagner; that some time prior thereto Mrs. Reithman had become the owner of the lots in question, and at the time of her death the recorded title thereto was in her; that at the time her husband, John J. Reithman, was a judgment debtor of Johanna Alexander to the amount of over $26,000. March 23, 1905, Mrs. Alexander caused an execution to be issued upon the judgment and a levy thereunder made upon John J. Reithman's interest in and to the lots in question. April 17, 1905, Reithman's interest, if any, in the property, was sold under the execution to Mrs. Alexander, and thereafter in due time she received a sheriff's deed therefor, which was duly recorded. August 17, 1905, a quitclaim deed, bearing date December 16, 1904, from Magdalena Reithman to Marie G. Wagner, in consideration of $1, purporting to convey the property in question, was filed for record, together with a mortgage deed bearing date March 16, 1905, from Marie G. Wagner to Moses Hallett, conveying the same property to secure the payment to Hallett of Mrs. Wagner's note in the sum of $3,422. At the time of the levy of the execution and the sale thereunder, Mrs. Alexander had no notice or knowledge of the deed to Mrs. Wagner or the mortgage to Judge Hallett, nor did she acquire such knowledge, either actual or constructive, until the filing of the last-named instruments. On and prior to December 6, 1904, Mrs. Reithman was indebted to Judge Hallett upon three promissory notes for money loaned in the aggregate sum of $1,900, and, being in poor health, conveyed the lots to Mrs. Wagner 'for the purpose of having her secure the said indebtedness' by a mortgage upon the lots to Judge Hallett. March 6, 1905, Mrs. Wagner received from Judge Hallett $1,100 for the purpose of paying the general taxes on said lots for the year 1903, and redeeming the premises from certain tax sales and assessments for public improvements, and thereupon executed and delivered to Judge Hallett her promissory note for the sum of $3,422, being the amount of such advancements and the indebtedness of Mrs. Reithman. At the same time, to secure the payment thereof, she executed and delivered the mortgage deed hereinbefore mentioned. In November, 1906, Judge Hallett redeemed the property from a sale for the taxes of 1904, and paid the taxes thereon for 1905, the two sums aggregating about $264. The evidence further shows that administration was had upon the estate of Magdalena Reithman; that June 19, 1905, the administrator petitioned the county court for an order to sell the lots in question to pay the debts of the deceased; that some time subsequent to August 21, 1905, plaintiff in error appeared, in the administration proceedings, and filed an answer to the petition to sell the lots, specifically alleging that the lots were not the property of Magdalena Reithman at the time of her death, and were no part of her estate, but were the property of Marie G. Wagner, subject to the mortgage of Hallett, and thereupon secured the annulment of the order to show cause. The lots were vacant and unimproved, and not in the actual possession of any one. They were assessed as the property of Magdalena Reithman for taxation to, and including, the year 1905. Trial was had, and resulted in a judgment in favor of Mrs. Alexander. The premises, not being subject to partition without loss, were thereafter sold under the direction of the court, and the net proceeds ordered distributed, one half to Mrs. Alexander and the other half to Judge Hallett as the mortgagee of the interest of Mrs. Wagner. The sum decreed to Judge Hallett being insufficient to liquidate the indebtedness to him, he appealed to this court.

1. Mrs. Alexander has interposed a motion to dismiss the appeal because the judgment rendered was not of that class from which an appeal will lie. The motion must be sustained. No money judgment was rendered, nor does the judgment relate to a franchise or freehold. Section 388, Mills' Ann. Code. Whether Judge Hallett has a lien by virtue of his mortgage or the moneys advanced or paid for taxes superior to the interest in the premises claimed by Mrs. Alexander are the sole questions for determination, and in no sense involve a franchise or freehold. Murto v. King, 28 Colo. 357, 359, 64 P. 184; Scheeren v. Stramann, 24 Colo. 111, 48 P. 966; Cravens v. Lee, 24 Colo. 225, 49 P. 424. This court, therefore, has no jurisdiction to entertain the appeal; but, as Mrs. Alexander has entered her appearance and filed briefs herein within the time a writ of error might have been sued out, and scire facias served, the cause will be entered as pending upon error by virtue of section 388a, Mills' Ann. Code, and we will proceed to determine the controversy.

2. One contention of plaintiff in error is that Mrs. Alexander acquired no interest in the premises superior to the lien created by the Hallett mortgage, because Magdalena Reithman had previously conveyed all her title in the lots to Marie G. Wagner, and no interest therein descended to John J. Reithman, notwithstanding such deed to Wagner and mortgage to Hallett were not recorded until long after the death of Mrs. Reithman, and subsequent to the levy of the execution and sale thereunder upon which the sheriff's deed was based. By virtue of section 694, Rev. St. 1908 (section 446, Mills' Ann. St.), deeds, conveyances, or agreements in writing affecting title to real estate, or any interest therein, must recorded in the office of the recorder, wherein such real estate is situated, before they can 'take effect as to any subsequent bona fide purchasers and incumbrancers by mortgage, judgment or otherwise, not having notice thereof.' By numerous decisions of this court, it is established that one who takes property, voluntarily to by judicial procedure, in payment of a pre-existing debt, is a purchaser for a valuable consideration, and that an unrecorded deed does not take effect as against an execution creditor, without notice. Knox v. McFarran, 4 Colo. 586, 596; McMurtrie v. Riddell, 9 Colo. 497, 13 P. 181; Jerome v. Carbonate N. Bk., etc., 22 Colo. 37, 40, 43 P. 215; West. Chem. Mfg. Co. v. McCaffrey, 47 Colo. 397, 107 P. 1081, 135 Am.St.Rep. 234. Such is conceded to be the law, but it is argued that the rule does not apply where the judgment creditor, as in the case at bar, claims the benefit of the provisions of the statute under a levy upon the alleged interest of an heir, but who, in fact, because of an unrecorded deed of his ancestor, had no interest in the property levied upon. As the heir, taking by descent, is not within the class excepted by the statute from the effect of an unrecorded deed or conveyance, it necessarily follows that such unrecorded instrument of the ancestor binds the heir to the same extent, as it would if recorded before the death of the maker thereof. This is necessarily true, because by the common law the priority of liens upon real estate is measured by the date of their acquisition; the first in order of time standing first in order of rank. It is equally true that a deed duly executed and delivered is sufficient as between the parties to it to convey the whole title of the grantor to the grantee, though the instrument be not recorded. So in the case at bar, after the execution and delivery of the Wagner deed, Mrs. Reithman actually retained no interest in the premises which she could by right convey to any person, yet it is firmly established that if she had thereafter made a deed of conveyance of the premises in controversy to a bona fide purchaser, without notice of the Wagner deed, or, if a like judgment creditor, had, by judicial procedure, received a deed for her interest therein, such person would have taken an absolute fee. The reason of the rule is that by virtue of the statute the unrecorded deed, under such circumstances, has no force or effect. As to bona fide purchasers or incumbrancers without notice, an unrecorded deed, though binding upon the grantor, his heirs, and devisees, is a nullity. 'As to them the person who appears of record to be the owner is to be taken as the true and actual owner, and his apparent seisin is not divested or affected by any unknown and unrecorded deed that he may have made.' Earle v. Fiske, 103 Mass. 491, 492. The rights acquired by a bona fide purchaser of real estate without notice of an unrecorded deed are not measured by the actual interest of the seller in the land, but rather by his apparent interest. Western Chem. Mfg. Co. v. McCaffrey, supra.

But it is asserted that the title of an heir to property standing upon the record in the name of his ancestor is not apparent. If the statute of descent required registration to be made either of the fact of death or descent,...