Harris v. Reed

• Decision Date: 15 February 1912
• Citation: 21 Idaho 364,121 P. 780
• Parties: ELIZABETH H. HARRIS and GEORGE S. YOUNG, Respondents, v. WILLIS E. REED et al., Appellants
• Court: Idaho Supreme Court

121 P. 780

21 Idaho 364

ELIZABETH H. HARRIS and GEORGE S. YOUNG, Respondents, v. WILLIS E. REED et al., Appellants

Supreme Court of Idaho

February 15, 1912

REAL PROPERTY-SUIT TO QUIET TITLE-INNOCENT PURCHASER FOR VALUE - UNRECORDED CONVEYANCE-UNACKNOWLEDGED CONVEYANCE-RECORD OF ACKNOWLEDGED CONVEYANCE-CONSTRUCTIVE NOTICE.

(Syllabus by the court.)

1. Under the provisions of sec. 3153, Rev. Codes, before any instrument may be recorded, its execution must be acknowledged by the person executing it, or if executed by a corporation, by its president or secretary, or proved and certified in the manner prescribed by statute, unless such instrument is one that is expressly excepted from the requirements of the statute as to such acknowledgment or proof.

2. Under the provisions of sec. 3159, Rev. Codes, a recorded conveyance of real property which has not been acknowledged or proved and certified as required by law, does not impart constructive notice of its contents to subsequent purchasers and mortgagees.

3. Under the provisions of sec. 3159, in order that a recorded conveyance of real property may impart constructive notice of its contents to subsequent purchasers and mortgagees, it must be "acknowledged or proved and certified" as well as recorded.

4. The record of a written instrument which is not by law entitled to be recorded imparts no constructive notice to anyone.

5. The conveyance of real property which sec. 3159 provides shall constitute constructive notice to "subsequent purchasers and mortgagees" is a conveyance made by the person from whom such "sub- sequent purchaser or mortgagee" is compelled to deraign his title, and has no reference to and does not include conveyances made by strangers to the record title.

6. The subsequent purchasers of whom sec. 3159, Rev. Codes, speaks are those claiming title under the same grantor, and it is to these only the record is constructive notice.

7. Facts examined in this case, and held that they do not support a finding that certain purchasers from the original grantor had forfeited their contract and the payments made thereunder.

8. A forfeiture is a harsh remedy and will not be allowed except upon clear proof of the breach of the terms of the contract upon which such forfeiture shall be declared.

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.

Action to quiet title. Judgment in favor of the plaintiffs. Defendants appeal. Judgment affirmed as to one of the respondents and reversed as to one of them.

Judgment reversed as to the respondent Young and cause remanded, with direction. Judgment affirmed as between respondent Harris and appellants, and reversed as between respondent Young and appellants.

N. D Jackson, for Appellants.

A purchaser is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the record would have disclosed. (Northwestern National Bank v. Freeman, 171 U.S 620, 19 S.Ct. 36, 43 L.Ed. 307.)

An instrument properly recorded is notice to the world, not only of facts therein expressly set forth, but also of all other material facts which an inquiry, thereby reasonably suggested, would have developed. (Loser v. Plainfield Saving Bank, 149 Iowa 672, 128 N.W. 1101, 31 L. R. A N. S., 1112.)

If the appellants were entitled to relief against Young, they are entitled to the same relief against respondent Harris, who took with notice. (Wilson v. Emig, 44 Kan. 125, 24 P. 80; Peasley v. Hart, 65 Cal. 522, 4 P. 537; Laverty v. Moore, 33 N.Y. 658.)

Forfeitures are not favored, and that construction will be adopted which will avoid the forfeiture. (Post v. Garrow, 18 Neb. 683, 26 N.W. 580; Continental Ins. Co. v. Vanlue, 126 Ind. 410, 26 N.E. 121, 10 L. R. A. 843.)

A contract to convey by good and sufficient deed has reference not only to the form of the deed, but to its effectiveness to convey a fee simple title. (Taft v. Kessel, 16 Wis. 273; Cunningham v. Sharp, 30 Tenn. (11 Humph.) 116; Story v. Conger, 36 N.Y. 673, 93 Am. Dec. 546; Thompson v. Hawley, 14 Ore. 199, 12 P. 276.)

Young has never been in a position to give a deed effective to convey a fee simple title, and being unable to perform on his part, he could not declare a forfeiture because of the vendee's failure to make deferred payments within the specified time. (Higginbotham v. Frock, 48 Ore. 129, 120 Am. St. 796, 83 P. 536; Sievers v. Brown, 36 Ore. 218, 56 P. 171; Getty v. Peters, 82 Mich. 661, 46 N.W. 1036, 10 L. R. A. 465; Warren v. Crew, 22 Iowa 315; Wheeling Creek Gas Co. v. Elder, 54 W.Va. 335, 46 S.E. 357; Mix v. Beach, 46 Ill. 311; Converse v. Blumrich, 14 Mich. 109, 90 Am. Dec. 231.)

B. H. Miller, and Millsaps & Moon, for Respondents.

"A purchaser of property takes free from unrecorded equity existing between former owners and third persons." (Duson v. Roos, 123 La. 835, 49 So. 590.)

There was not a word from the appellants to show that respondent Harris had knowledge of the existing claim of Reed Bros. or Rohwer, and consequently it must be acknowledged that respondent was, as she said, an innocent purchaser without notice for value. (Woolridge v. Thiele, 55 Ark. 45, 17 S.W. 340; Alden v. Trubee, 44 Conn. 455; Spicer v. Waters, 65 Barb. (N. Y.) 227; Hayden v. Charter Oak D. P., 63 Conn. 142, 27 A. 232; Bowman v. Griffith, 35 Neb. 361, 53 N.W. 140; D. S. G. & Co. v. G. P. G. & Co., 10 Cal.App. 415, 102 P. 548; Ryle v. Davidson (Tex. Civ. App.), 116 S.W. 823; Powers v. Perry, 12 Cal.App. 77, 106 P. 595; Fowles v. Bentley, 135 Mo.App. 417, 115 S.W. 1090; Osceola L. Co. v. C. M. & L. Co., 84 Ark. 1, 103 S.W. 609; Laffare v. Knight (Tex. Civ. App.), 101 S.W. 1034.)

She would not be charged with notice, for the reason that said contract, not being acknowledged, would impart no notice whatever, either constructive or otherwise, and as a subsequent purchaser it would have no binding effect in so far as she is concerned. (Reid v. Kleyenstauber, 7 Ariz. 58, 60 P. 879; Lee v. Murphy, 119 Cal. 364, 51 P. 549, 955; Fisher v. Cowles, 41 Kan. 418, 21 P. 228.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

STATEMENT OF FACTS.

This action was commenced for the purpose of quieting plaintiff Harris' title to a tract of land described in the complaint and to procure the cancellation of a certain real estate mortgage dated May 7, 1909, made by Paul G. Rohwer and Myrtle Rohwer, his wife, to Willis E. Reed and Claude H. Reed, covering the land described in the complaint, for the sum of $ 1,300; and also to have canceled a certain contract of sale of the same real estate, made and executed on October 6, 1908, by George S. Young, party of the first part, to Reed Bros., a copartnership composed of Willis E. Reed and Claude H. Reed. The Reeds answered, pleading their contract and mortgage as giving them superior rights and title to the property over the plaintiff. Rohwer and wife also appeared by separate answer and cross-complaint and set up their interest. All the defendants charged that plaintiff was not an innocent purchaser. Judgment was entered in favor of the plaintiff, and defendants, the Rohwers and Reeds, appeal.

The facts involved, the consideration of which are necessary to the determination of the case, are as follows: On October 6 1908, George S. Young was the owner of the land in controversy, and on that date entered into a contract in writing, whereby he agreed to sell the land in controversy to the Reed Bros. for the sum of $ 2,500, to be paid as follows: one hundred and fifty dollars paid at the time of the execution of the contract; $ 350 to be paid on or before December 1, 1908; $ 400 on or before January 1, 1909, and the balance to be secured by first mortgage on the land, payable in three or four years at eight per cent. Among other things, the contract contained the following stipulation: "If the party of the first part fails to promptly meet and pay the first and second payments, as provided in this contract, when the same shall become due and payable, the party of the second part shall at the option of the first party forfeit all payments made by him as liquidated damages." Young agreed to convey the premises by a good and sufficient warranty deed. This contract was not acknowledged or proven in any manner or form, and under the provisions of sec. 3153 was not entitled to record. It was nevertheless recorded on the 15th day of March, 1910, in the miscellaneous records of Fremont county, the county in which the land was situated. The $ 150 was paid at the time the contract was executed, and the $ 350 was paid when due, and the further sum of $ 400 was paid by Reed Bros. and accepted by Young, but it seems that this payment was made and accepted sometime subsequent to the date on which it became due. About the month of March, 1909, the Reed Bros. sold and transferred their interest in this land and the contract thereon to Paul G. Rohwer. Thereafter and on the 7th day of May, 1909, Rohwer and wife executed a mortgage on this land in favor of Willis E. Reed and Claude H. Reed for the sum of $ 1,300, which mortgage was thereafter and on the 24th day of September, 1909, placed of record in the records of mortgages of Fremont county. In the meanwhile it had been agreed through correspondence between Young and the Reeds that Young would make his deed direct to Rohwer instead of to the Reed Bros. Rohwer and wife made and executed a mortgage in favor of Young for the balance of $ 1,600 due on the place and forwarded the same to be delivered on the execution of a deed from Young to Rohwer. This mortgage was executed on a form not in use in this state but which seemed to have been the form commonly used in the state of...