Johnson v. Abbe

• Decision Date: 06 December 1919
• Docket Number: 22,262
• Citation: 185 P. 738,105 Kan. 658
• Parties: CHARLES RICHARD JOHNSON, Appellant, v. B. R. ABBE et al. (W. V. YOUNG, Appellee)
• Court: Kansas Supreme Court

185 P. 738

105 Kan. 658

CHARLES RICHARD JOHNSON, Appellant, v. B. R. ABBE et al. (W. V. YOUNG, Appellee)

No. 22,262

Supreme Court of Kansas

December 6, 1919

Decided July, 1919.

Appeal from Lane district court; ALBERT S. FOULKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONVEYANCE--Purchaser Charged with Notice of Encumbrances Suggested by Recitals in his Deed. A purchaser of property on which there were three mortgages, one for $ 2,700, another for $ 1,502.50, both of which were of record; and also an unrecorded mortgage for $ 600.00 which was placed on record after the purchase, but before the transfer was completed, accepted a deed of conveyance which contained a recital:

"Made subject to a mortgage of $ 4,800.00, which is now a lien upon the above land, which the grantee agrees to assume and pay with interest at six per cent from date, as a part of the purchase price."

He had no actual knowledge of the unrecorded mortgage when the purchase was made, nor any notice except such as is afforded by the foregoing recital. Held, that the recital as to encumbrance on the property was such as to require him to inquire as to the liens that made up the recited encumbrance and if the inquiry had been pursued with reasonable diligence, he would have learned of the $ 600 mortgage and is chargeable with notice of it.

R. D. Armstrong, H. H. Rennick, both of Scott City, Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, for the appellant.

J. A. Simmons, of Dighton, for the appellee.

OPINION

JOHNSTON, C. J.:

The main question presented on this appeal is whether or not a recital in an instrument of conveyance constituted notice to a purchaser of an outstanding unrecorded mortgage.

There is little dispute as to the facts upon which the issue depends. Binnie, who owned a tract of land, conveyed it to Roberts, taking a mortgage thereon to secure the payment of $ 2,700 of the purchase money, which was recorded. Roberts conveyed the land to Watts, subject to the mortgage for $ 2,700, taking a second mortgage of $ 1,502.50 for part of the purchase price, and this mortgage was also placed on record. Watts transferred the tract to his wife, and the instrument recited that it was made subject to a mortgage of $ 4,200, which the grantee agreed to assume and pay. Later, and on July 14, 1914, Watts and wife executed a mortgage on the tract to their son, for $ 600, and the conveyance contained a recital that it was subject to a mortgage for $ 2,700, and another for $ 1,502.50, but this mortgage was not recorded until June 14, 1915. Prior to the recording of the $ 600 mortgage, and on December 26, 1914, Watts and wife conveyed the land to the defendant Rozzelle for a consideration of $ 50, and the deed contained the following recital:

"Made subject to a mortgage of $ 4,800.00, which is now a lien upon the above land, which the grantee agrees to assume and pay with interest at six per cent from date, as a part of the purchase price."

Rozzelle executed a conveyance of this tract with others to the plaintiff, Johnson, on March 23, 1915, but the deed and other papers were placed in escrow and were not actually delivered until about December 20, 1915, and the abstract of title which he delivered with the deed showed the existence of the $ 600 mortgage. It appears that the $ 2,700 mortgage was released of record on April 26, 1915, and the one for $ 1,502.50 was released on August 23, 1915. Rozzelle purchased the land...