Hoult v. Rich

• Decision Date: 06 July 1946
• Docket Number: 36579.
• Citation: 161 Kan. 587,170 P.2d 834
• Parties: HOULT et al. v. RICH et al.
• Court: Kansas Supreme Court

170 P.2d 834

161 Kan. 587

HOULT et al. v. RICH et al.

No. 36579.

Supreme Court of Kansas

July 6, 1946

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action to quiet title to land by Charles H. Hoult and another against Sam Rich and others, partners doing business as the Rich Sign Company. Judgment for the plaintiffs, and the defendants appeal.

Syllabus by the Court

1 G.S.1935, 67-223, provides: 'No such instrument [referring to instruments affecting real estate] 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.' (Emphasis supplied.)

2. The 'actual notice' mentioned in the statute 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 would inform him of the outstanding unrecorded contract or conveyance.

3. The presumption of actual notice arising from circumstances may be rebutted by the person sought to be charged with such notice.

4. The record in an action to quiet title examined, and held: (a) Whether the purchasers should have made further inquiry before buying the land with respect to the rights of others who had erected advertising display signs thereon, of which the purchasers had notice, and whether such inquiry would have apprised them of an unrecorded contract was, under the circumstances narrated in the opinion, a proper question for the trier of the facts; (b) discovery and examination of the unrecorded contract would not have disclosed defendants' right to erect or maintain the signs; (c) the trial court did not commit reversible error in the admission of testimony; and (d) neither ratification of the contract by plaintiffs nor estoppel was pleaded and the facts were insufficient to warrant invoking either doctrine had it been pleaded.

P. K Smith, of Wichita (A. M. Ebright and Ralph E. Gilchrist, both of Wichita, on the brief), for appellants.

Howard T. Fleeson, of Wichita (Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita on the brief), for appellees.

WEDELL Justice.

This was an action to quiet title to land. Plaintiffs prevailed and defendants have appealed.

The trial court found generally in favor of the plaintiffs, Charles H. Hoult and Louise K. Hoult, his wife. The defendants were Sam Rich, Bessie Rich and Max Woodburn, partners doing business as 'Rich Sign Company.' The material facts, in substance, were:

Charles H. Hoult acquired title to a southwest quarter section of land in controversy by warranty deed from D. R. Lauck on January 31, 1944; the deed contained no reservations or exceptions; the land was situated approximately five and one-half miles east of the city of Wichita and immediately north of U.S. highway 54; in 1940 appellees had acquired the adjoining southeast quarter and lived thereon; that quarter section was also situated immediately to the north of highway 54; on the southwest quarter now involved and along the north side of the highway appellants had erected fifteen or sixteen advertising display signs of various sizes for different business concerns; the signs except for the intervening spaces covered the entire length of that quarter section; the name 'Rich Sign Company' appeared on each sign; some of them were swinging signs; the signs were set in concrete; when Charles H. Hoult purchased the southeast quarter four years previously appellants had similiar signs located along the highway on that quarter section; at that time appellees requested appellants to remove the signs therefrom and appellants complied promptly; they did not advise appellees of any contractual or other right to erect and maintain the disply signs thereon; Charles H. Hoult testified that when he acquired the southwest quarter he believed appellants would remove the signs from that quarter; after appellees purchased the southwest quarter they constructed a road from their home onto the adjoining southwest quarter and also sowed oats thereon; approximately five months after purchasing the southwest quarter appellees requested appellants by letter to remove the signs on that land; appellants did not then assert contractual or other rights in or to the land; on the contrary they advised appellees they had no help at that time but would remove the signs after the war; a few months after this action was commenced appellants sent appellees a rental check which appellees neither cashed nor returned.

Appellants defended primarily on the ground they had been in the open, notorious and peaceful possession of the land under an unacknowledged and unrecorded written contract with appellees' vendor since Cotober, 1938; under the terms of that contract which they claimed to have fully performed they had a right to the possession and occupancy of the premises for the purpose of erecting and maintaining the advertising signs thereon until October 16, 1947; appellees had actual notice of that possession prior to their purchase and acquired the land subject to appellants' rights therein.

Appellants also now assert appellees ratified the contract and are estopped to deny appellants' rights in the land.

It is conceded the 1938 written contract under which appellants claimed the right to erect and maintain the signs on the land in question was not recorded. It is likewise conceded appellees had notice of the signs on the land before they purchased. G.S.1935, 67-223 provides:

'No such instrument [referring to instruments affecting real estate] 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.' (Emphasis supplied.)

In Pope v. Nichols, 61 Kan. 230, 59 P. 257, the words 'actual notice' were construed and it was held:

'The words 'actual notice' do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.' (Syl. 3.)

In Faris v. Finnup, 84 Kan. 122, 113 P. 407, the statute was again interpreted as follows:

'Under the statute providing that no conveyance of real estate shall be valid, except as between the parties and as to those who have actual notice, until it is deposited for record (Gen.St.1909, § 1672), actual notice may be express, when it consists of knowledge actually brought personally home, or it may be implied when it consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. In the latter case the known facts must be sufficiently specific to impose the duty to investigate further, and they must furnish a natural clue to the ultimate fact.' (Syl. 1.)

In Edwards v. Myers, 127 Kan. 221, 273 P. 468, it was declared:

'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.' (Syl. 2.)

These earlier interpretations of the statute were followed in a recent case involving a purchaser's notice of the use of a stairway located in an adjoining building. Federal Savings...