Maupin v. Emmons

• Decision Date: 31 January 1871
• Citation: 47 Mo. 304
• Parties: A. W. MAUPIN AND R. A. KING, Plaintiffs in Error, v. R. J. EMMONS AND EMELINE EMMONS, Defendants in Error.
• Court: Missouri Supreme Court

47 Mo. 304

A. W. MAUPIN AND R. A. KING, Plaintiffs in Error,

v.R. J. EMMONS AND EMELINE EMMONS, Defendants in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Ewing & Smith, for plaintiffs in error.

Lay & Belch, for defendants in error.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs brought their action for the possession of 320 acres of land owned and occupied by defendants, and relied upon a sale and purchase by them upon execution against one Hammack, the grantor of defendant Emeline Emmons. The execution sale was on the 20th of April, 1864, and the sheriff's deed was made on the 20th of September following, and placed on record the 29th. Hammack, the execution debtor, had sold the property and conveyed the same to Emeline Emmons, wife of the other defendant, on the 16th of November, 1858, and received a full consideration therefor. But the purchasers failed to put their deed upon record until after the sheriff's sale and the record of the sheriff's deed, although they went into immediate possession of the property, have ever since resided thereon, and have made valuable improvements. One of the plaintiffs, on examining the records, and finding that defendant's deed was not recorded, directed the sheriff to levy upon the property, and at the sale bid it in for a nominal consideration. It is one of those attempts, generally unsuccessful, though too often otherwise, to take advantage of the negligence of those who rest secure in the possession of their property, and to transfer it to those who are watching for opportunities to prey upon the unwary.

The case was submitted to the court, and the defendants recovered judgment. I need not consider in detail the numerous declarations of law given and refused, but the record shows a full and fair trial, and that no other result could have been reached. The effect of a failure to place upon record one's title deeds has often been considered by this court, and it has always been held here, as elsewhere, that, as between the purchaser and his vendor, it is of no importance that the deed be recorded at all. The same is held as between the holder of the first conveyance and subsequent purchasers from the same vendor, if they purchase with notice of the original conveyance, or if their purchase was not made upon payment of a good and valuable consideration. The payment of the consideration raises the equity that invalidates the first deed. (Paul v. Fulton, 25 Mo. 156; Aubuchon v. Bender, 44 Mo. 560.) The statute invalidating the original unrecorded deed is held to operate in favor of bona fide purchasers at sheriffs' as well as private sales, provided the original deed be not recorded until after the sale. (Davis v. Ownsby, 14 Mo. 170; Draper v. Bryson, 17 Mo. 71, and 26 Mo. 108; Valentine v. Havener, 20 Mo. 133; Reed v. Ownby, 44 Mo. 204.) But differences have often arisen as to what constitutes the notice spoken of in the statute.

The following is the section declaring the effect upon the unrecorded instrument of a failure to file for record: “Sec. 26. No such instrument 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 recorder for record.”

The actual notice required by the statute is used in contradistinction to the constructive notice given by a record. It does not mean that there must necessarily be direct and positive evidence that the subsequent purchaser actually knew of the existence of the deed. Any proper evidence tending to show it--facts and circumstances coming to his knowledge that would put a man of ordinary circumspection upon inquiry--should go to the jury as evidence of such notice. The second sale by one who has already conveyed the property is necessarily fraudulent; and if it appears in evidence that the purchaser knows that the holder of the unrecorded deed is in possession of the property as owner, or that he is informed that such holder has bought the property, the jury has a right to infer full knowledge or voluntary ignorance; and if he buy with such knowledge, or such means of knowledge, he becomes a party to the fraud, and will not be permitted to take advantage of it. In Speck v. Riggin, 40 Mo. 405, the court holds that “notice is actual where the purchaser either knows of the existence of the adverse claim or title, or is conscious of having the means of knowing, although he may not use them.” And the majority of the court, per Leonard, J., in Vaughn v. Tracy, 22 Mo. 417, and 25 Mo. 318, holds that evidence of possession and apparent ownership, brought home to the knowledge of the second purchaser, should go to the jury, and ought to be deemed sufficient information “that the possessor is the owner in fee under a title derived from the former owner.” Proof of actual knowledge of the existence of the former deed has never been held to be necessary; but the jury has the right to infer such knowledge from facts that would naturally suggest it, and from which the actual relation of the prior purchaser of the land might be reasonably inferred. The doctrine of Judge Scott, in Beattie v. Butler, 21 Mo. 313, was expressly disclaimed by his associates, and has never been sustained by this court.

It will be thus seen that the court committed no error in refusing to declare as law, at the instance of plaintiffs, that “actual notice consists in the fact that the purchaser of lands has the direct and positive information that...