Mcbee v. O'connell
| Decision Date | 04 December 1914 |
| Docket Number | No. 1693.,1693. |
| Citation | 19 N.M. 565,145 P. 123 |
| Parties | MCBEEv.O'CONNELL ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Upon a second or subsequent appeal, nothing will be considered, except the proceedings occurring after remand; the former decision being the law of the case, whether right or wrong, so that a question which could have been considered on the former appeal will not be considered on the subsequent appeal.
A person who purchases an estate in the possession of another than his vendor is in equity (that is, in good faith) bound to inquire of such possessor what right he has in the estate. If he fails to make such inquiry, which ordinary good faith requires of him, equity charges him with notice of all the facts that such inquiry would disclose.
The possession of the tenant is sufficient to put an intending purchaser from a third person upon inquiry as to the landlord's rights and to charge him with constructive notice thereof if he fails to make such inquiry.
An exception to the rules stated should be made where the subsequent purchaser shows that he pursued an inquiry with proper diligence, and failed to obtain the knowledge of the unrecorded instrument or of the right of the parties claiming under it.
Appeal from District Court, Curry County; G. A. Richardson, Judge.
Ejectment by W. D. McBee against Pat O'Connell and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.
Where a purchaser has diligently pursued an inquiry and failed to learn of an unrecorded instrument or right under it, he is not chargeable with constructive notice thereof.
This is an action in ejectment in which the plaintiff seeks to recover from the defendants possession of lot 5 in block 20 in Clovis, Curry county, N. M., together with damage for its detention. Plaintiff's claim to ownership of the said lot is based on an executory contract of sale, entered into between the Santa Fé Land & Improvement Company and one J. M. Ray on June 27, 1907, which contract was subsequently assigned by said Ray to the plaintiff on October 3, 1907. On October 30, 1907, the said Ray receipted to plaintiff for an amount stated to be in full payment of his entire interest in the lot in question and house thereupon erected, and thereafter, or some time during the month of October, the plaintiff entered into possession of the said lot and improvements thereupon, and through an agent, one J. S. Fitzhugh, secured a tenant for the property, who entered into the possession thereof, and continued in possession of the same until the defendants entered upon the property, taking possession thereof as purchasers on the 9th day of March, 1908, from the said J. M. Ray, for a valuable consideration, of the above-described lot and its improvements, and claiming by their answer in this cause to be without knowledge of any interest, equity, right, or title of the plaintiff in or to the said property, conveyance being made to the defendant Annie L. O'Connell, herein designated as Mrs. Pat O'Connell, who was joined with her husband in this action as parties defendant.
The tenant, one Leeper, continued in possession of the premises up to the time that the agent, Fitzhugh, learned that the defendants were claiming the property, which is fixed as about the fall of 1908; and it is uncontroverted that the defendant Pat O'Connell occupied a part of the house situate upon the lot in question as a subtenant of Mr. Leeper during a portion of the time that Leeper remained in possession of the property as the tenant of the plaintiff.
The assignment from Ray to plaintiff of his contract with the land company was acknowledged before a notary public of Roosevelt county, the assignment being written upon the same sheet of paper containing said contract, and was filed for record in the office of probate clerk of Roosevelt county on December 7, 1907, and duly recorded by such clerk.
A former trial of this cause resulted in a verdict for the plaintiff, appellant here, and said cause having been appealed to the territorial Supreme Court, being reported as McBee v. O'Connell, 16 N. M. 469, 120 Pac. 734, the territorial Supreme Court reversed and remanded the cause upon the principal ground that the acknowledgment of the assignment on the back of the executory contract for the sale of the real estate in question, to which the assignment refers for particulars and description, was not under the circumstances an acknowledgment of the contract itself, and, although the contract was copied in the land records by the proper recording officer, that did not make it of record and thereby constructive notice to a subsequent purchaser, having no actual knowledge of it. After some slight amendments in the answer and reply, the case was again tried by the district court of Curry county of September, 1913, before a jury, and, at the conclusion of the testimony of the plaintiff, the defendants moved for a directed verdict upon the ground that there was no evidence in the case to show that the defendants or either of them had actual knowledge of plaintiff's claim under his assignment from said Ray, and because the plaintiff's evidence of title was not constructive notice under the laws of New Mexico, and the purchaser did not have actual knowledge of the instrument, and other grounds not necessary to refer to.
The motion was granted by the trial court upon the theory that the decision of the territorial Supreme Court in the first appeal of this cause was the law of the case and controlling upon the trial court. To which action of the trial court the plaintiff saved his exception and, after his motion for a new trial had been overruled, sued out this appeal.
W. A. Havener, of...
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