Miller v. Green

• Decision Date: 02 June 1953
• Parties: , 37 A.L.R.2d 1104 MILLER et ux. v. GREEN et al.
• Court: Wisconsin Supreme Court

Page 704

58 N.W.2d 704

264 Wis. 159, 37 A.L.R.2d 1104

MILLER et ux. v. GREEN et al.

Supreme Court of Wisconsin.

June 2, 1953.

Doar & Knowles, New Richmond, for appellants.

Willis E. Donley, Balsam Lake, for respondents.

CURRIE, Justice.

Defendants Hines claim that their title under their deed is superior to the land contract interest of the plaintiffs inasmuch as their deed was recorded first. Section 235.49, Stats., provides as follows:

'Every conveyance of real estate within this state hereafter made (except patents issued by the United States or this state, or by the proper officers of either) which shall not be recorded as provided by law shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded.'

The question at issue on this appeal is whether the defendants Hines qualify under the foregoing statute as subsequent purchasers 'in good faith'. Plaintiffs contend that the defendants Hines do not so qualify because the plaintiffs were in possession of the premises on November 29, 1950, when the defendant W. E. Hines paid Mrs. Green $500 toward the purchase price of the farm, and that such possession constituted constructive notice of the plaintiffs' rights under their land contract. This makes it necessary to review the evidence bearing on such possession by the plaintiffs, or either of them.

Approximately 40 acres of the 63-acre tract was cultivated land and the remainder was pasture and woods. The buildings on the farm consisted of a small log house, a barn, and some sheds, which were in a dilapidated condition; the house was unlivable; and such buildings had not been used for many years. The plaintiff Eugene M. Miller had leased the entire 63-acre tract for the crop season of 1950 and had grown crops on the cultivated 40 acres and had grazed livestock on the remaining portion. The crop had been harvested prior to November, 1950, and the livestock had been removed when cold weather came about November 22, 1950. However, starting November 4, 1950 (the date that the Millers contracted to purchase this farm tract), Miller's father, in behalf of the Millers, hauled between 59 and 60 loads of manure to the farm. First the manure was spread over the land, but then after a snowstorm came it was piled on a pile about 100 feet from the road, such pile being about 60 feet long and several feet high. Such hauling of manure was taking place on November 29, 1950 (the date that the defendants Hines made the $500 down payment on the purchase price), and continued until about December 8 or 9, 1950. Also in November, prior to the snowstorm, approximately 2 acres of land had been plowed by Miller, which plowed land was plainly visible from the abutting highway before the snowstorm.

The Hines farm was located about one half mile from this 63-acre tract, although the distance by highway was about one and one half miles. Part of the tract was visible from the Hines home. The defendant W. E. Hines testified that he knew that the plaintiff Eugene M. Miller had leased the tract for the crop season of 1950, but denied that he drove past the tract on the abutting highway during November, 1950, and denied having seen the plowing of the land, the hauling of the manure, or the manure pile on the land, although he admitted finding the manure pile there the following spring.

The general rule is that possession of land is notice to the world of whatever rights the possessor may have in the premises. The reason underlying this rule is well stated in Pippin v. Richards, 1911, 146 Wis. 69, 74, 130 N.W. 872, 874:

'The theory of the law is that the person in possession may be asked to disclose the right or title which he has in the premises, and the purchaser will be chargeable with the actual notice he would have received, had he made inquiry. Mateskey v. Feldman, 75 Wis. 103, 43 N.W. 733; Brinkman v. Jones, supra . In Frame v. Frame, 32 W.Va. , at page 478, 9 S.E. at page 907 (5 L.R.A. 323), the court said: 'The earth has been described as that universal manuscript, open to the eyes of all. When, therefore, a man proposes to buy or deal with realty, his first duty is to read this public manuscript; that is, to look and see who is there upon it, and what are his rights there. And, if the person in possession has an equitable title to it, he is as much bound to respect it, as if it was a perfect legal title evidenced by a deed duly recorded.'

An apt statement of this general principle of possession being constructive notice is stated in State v. Jewell, 1947, 250 Wis. 165, at page 171, 26 N.W.2d 825, at page 828, 28 N.W.2d 314:

'The possession of real estate is generally considered constructive notice of rights of the possessor, whether the possession is sought to be used for the purpose of charging a purchaser with notice of an outstanding equity, or whether it is sought to charge a subsequent purchaser with notice of an unrecorded instrument and thereby defeat his right to protection under the recording acts. It is so held in the United States courts and in 28 states of the Union. 55 Am.Jur. [Vendor and Purchaser] 1087, sec. 712, and cases cited.'

The rule with respect to possession of a tenant constituting notice of any rights claimed by such tenant is stated in 5 Tiffany, Real Property, Third Ed., p. 73, sec. 1291:

'It has been decided in a number of states that, by the possession of a tenant under a lease, a purchaser is chargeable with notice, not only of the tenant's rights under the lease, but also of any right which he may have not under the lease, as, for instance, under an agreement by the lessor to sell the property to him.'

The authorities generally hold that in order that possession may constitute constructive notice such possession must be 'open, visible, exclusive and unambiguous'. Ely v. Wilcox, 20 Wis. 523; Wickes v. Lake, 25 Wis. 71; and 55 Am.Jur., Vendor and Purchaser, p. 1090, sec. 716. It will thus be seen that the requirements as to the type of possession that will constitute constructive notice are practically identical with the requirements of the type of possession necessary to constitute adverse possession. In view of the fact that the farm buildings were unusable, the plowing of the 2 acres of land after November 4, 1950, and the hauling of the manure practically every day throughout November were acts which not only were 'open and visible', but also 'exclusive and unambiguous'. They were the customary acts of possession which could be exercised as to unoccupied farm lands at such time of year. Surely they would have been sufficient to have constituted acts of adverse possession, and it would appear that the rule as to acts of possession necessary to constitute constructive notice to a purchaser is no more strict. Wickes v. Lake, supra, is authority for the principle that actual residence on the land is not required in order to have sufficient possession to constitute constructive notice.

In George v. Stansbury, 1922, 90 W.Va. 593, 111 S.E. 598, both the plaintiff and defendants claimed title to a city lot. The plaintiff, during 1919, had maintained a garden on the lot, and the following year, although he did not have a garden there, he permitted the owner of a nearby lot who was excavating for a building to haul a large quantity of dirt from the excavation and dump it on the lot so as to fill a low place. It was during this second year that the defendants purchased the premises and obtained a deed which they recorded, while the plaintiffs' title was not recorded. The West Virginia court held that the gardening during the one season, followed by the permitting of the dirt to be hauled in and dumped the second year, constituted sufficient possession to be constructive notice to the defendants of plaintiff's rights, and plaintiff was held to have the superior title. If hauling dirt onto a vacant lot constitutes sufficient possession to be constructive notice to a subsequent purchaser, surely hauling manure onto farm land, as in the instant case, should be held to be equally effective to constitute constructive notice.

In Lyman v. Russell, 1867, 45 Ill. 281, plaintiff purchased some farm land but did not record his deed. The defendants claimed under a subsequent mortgage executed by plaintiff's vendor. The question was whether there was such 'actual, open, notorious and visible possession' of the lands by plaintiff as to constitute constructive notice to the subsequent mortgagees. Plaintiff's act of possession consisted of plowing some of the land in view of all who passed along the adjoining highway. The Illinois court held that the plaintiff's possession was sufficient notice to put a subsequent purchaser on inquiry, and should operate as notice of plaintiff's rights.

The learned trial court in the instant case apparently was of the opinion that, in order for the plaintiff Eugene M. Miller's possession of the premises to have been constructive notice to the defendants Hines that Miller claimed rights of ownership therein, there must have been some change in the type of his possession after November 4, 1950 (the date the Millers entered into the contract to purchase), and his possession prior thereto. This is very apparent from...