Willis v. Stager

• Decision Date: 18 February 1971
• Citation: 257 Or. 608,481 P.2d 78
• Parties: Oliver M. WILLIS and Della May Willis, Respondents, v. Alma G. STAGER and Floyd Stager, Appellants.
• Court: Oregon Supreme Court

Page 78

481 P.2d 78

257 Or. 608

Oliver M. WILLIS and Della May Willis, Respondents, v. Alma G. STAGER and Floyd Stager, Appellants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 15, 1970.

Decided Feb. 18, 1971.

Steve Anderson, Salem, argued the cause and filed briefs for appellants.

William B. Wyllie, Salem, argued the cause for respondents. With him on the brief were Williams, Skopil, Miller, Beck & Wyllie, Salem.

Before O'CONNELL, C.J., and DENECKE, HOWELL and TONGUE, JJ.

TONGUE, Justice.

This is a suit to quiet title brought by the holders of an unrecorded deed against the holders of a subsequent deed from the same grantor. Plaintiff had also failed to pay any real property taxes on the property involved, resulting in a tax foreclosure decree. Defendants paid such taxes on the day before expiration of the one-year redemption period.

Defendants appeal from a decree quieting title in plaintiffs, subject to a lien in favor of defendants for the amounts paid by them for their deed and for delinquent property taxes, with interest. In urging reversal of that decree defendants contend that the trial court erred (1) In failing to hold that defendants were bona fide purchasers, without notice or knowledge of plaintiffs' deed; (2) In failing to consider the effect of the tax foreclosure, under which plaintiffs would have lost all interest in the property; and (3) In failing to hold that plaintiffs' claim was barred by laches and estoppel for failure to record their deed and for failure to pay taxes on the property. The facts of the case are important in considering all three contentions.

On February 1, 1960, plaintiffs entered into an installment contract with William H. and Hazel B. Lemire for purchase of a 4.8 acre treact of unimproved land north of Salem. A deed to plaintiffs was executed on the same date and placed in escrow with a bank for delivery upon completion of payments to the bank in the total sum of $1,200. The record does not show the name of the realtor involved, if any. On October 11, 1961, payments were completed and the deed was delivered to plaintiffs, but was not recorded.

Plaintiff Oliver M. Willis, an insurance salesman, testified that he relied on the bank to do 'what was necessary to be done' and did not know that he should have recorded the deed, although he had purchased some property before. He offered no explanation why the real property taxes were not paid other than that bills such as tax bills were paid by his wife, who did not testify. On April 28, 1965, a tax foreclosure decree was entered for failure to pay real property taxes for the years 1960--61, 1961--62, 1962--63 and 1963--64.

Defendant Alma G. Stager, the wife and secretary of defendant Floyd Stager, a Salem attorney, made a practice of examining tax records for property about to be foreclosed for delinquent real property taxes. In March 1966, she became interested in this property. The redemption period for payment of the delinquent taxes expired on April 28, 1966. Thus, she had over four weeks to investigate the title to the property.

Upon checking the deed records Mrs. Stager found that Hazel B. Lemire was the record owner of the property. She then traced Mrs. Lemire to North Dakota and called her there by telephone. Mrs. Lemire told her that although 'they had owned quite a large amount of property, * * * she thought that she had sold all the property they had in Oregon,' but would check with her son. On Saturday morning, April 23, 1966, Mrs. Lemire called back and told Mrs. Stager that 'they had turned all the property over to a realtor in Salem to sold,' and gave her the name of the realtor.

On the same Saturday morning Mrs. Stager called the realtor (whose name she could not remember at the time of trial) and found that he was not at his office, but was at home getting ready to go fishing. The realtor told Mrs. Stager that he had sold the property, and said that he had sold it 'to a certain man in Salem.' She then called that man, who said that he had purchased property from Mrs. Lemire, but not in that location.

By then Mrs. Stager had also talked with purchasers of other property from Mrs. Lemire and had apparently checked the tax records, as well as the deed records, and had been unable to find the name of any owner other than Mrs. Lemire. She and her husband also drove by the property, which they found to be overgrown with brush, and inquired of one neighbor without success. They also saw no signs posted on the property with the name or telephone number of the owner. (Plaintiffs testified that such signs had been posted on the property in 1965.)

On that same Saturday, and without waiting to check again with the realtor at his office, where further records might have been available, Mrs. Stager again called Mrs. Lemire and 'told her it looked as though there had been a piece of property that had been missed in selling.' Her husband then prepared a deed, which was mailed to Mrs. Lemire. On the same day she also sent $650 to Mrs. Lemire by telegram. At that time the property had an assessed value of $2,560, with approximately $230 in delinquent taxes, with interest. The assessed value later was increased to $5,260 by the time of trial in September 1969.

On the following Monday, April 25, 1966, the deed was executed by Mrs. Lemire and was mailed back to Mrs. Stager. On Wednesday, April 27, 1966, the delinquent real property taxes and interest were paid and a 'Sheriff's Certificate of Redemption' was issued to F. P. Stager, who apparently made that payment. On the following day, April 28, 1966, the one-year redemption period for payment of such taxes would have expired. One day later, on April 29, 1966, the deed from Mrs. Lemire to Mrs. Stager was recorded. Five weeks later, on June 3, 1966, Mrs. Stager conveyed an undivided one-half interest in the property to her husband, Floyd Stager. On the same date that deed was also recorded.

Plaintiffs did not record their previous deed until May 3, 1968, and then offered to reimburse defendants for the payments made by them, in return for a further deed. On defendants' refusal to do so plaintiffs filed this suit to quiet title.

Defendant were not bona fide purchasers.

ORS 93.640(1) provides:

'Every conveyance affecting the title of real property within this state which is not recorded as provided by law is void as against any subsequent purchaser of the same real property, or any portion thereof, in good faith and for a valuable consideration whose conveyance is first filed for record, * * *'

Findings of fact were made by the trial court that defendants 'were aware of sufficient facts * * * to cause any reasonable person of comparable experience * * * to believe that she (Hazel B. Lemire) did not own the property' and that defendants were not bona fide purchasers. We agree.

It may be that the possession of the property by plaintiffs was not sufficiently open and visible so as to give constructive notice of their claim of ownership. Cf. Belcher v. La Grande Nat. Bank, 87 Or. 665, 171 P. 410 (1918), and Chaffin v. Solomon, 255 Or. 141, 465 P.2d 217 (1970). But in this case defendants had actual notice from the record owner that she did not claim to be the owner and understood that she had previously sold all of her interest in the property.

As stated in Merrill on Notice 78, § 71 (1952):

'Clearly a statement by a grantor or mortgagor that the property is subject to an outstanding claim should be heeded. Similar credence should be given to a disclaimer of title by a grantor, or to any statement by the person with whom one is dealing concerning the business at hand. It is not necessary generally that the statement should refer to a particular claim, although there are some cases imposing such a requirement.'

and later, at p. 82:

'Many decisions hold that information of the existence of some sort of a claim to land constitutes notice though there is no specification of the nature of the claim.'

To the same effect, see 8 Thompson on Real Property 415, 422, 458, §§ 4321, 4323, 4326.

In Belt v. Matson, 120 Or. 313, 252 P. 80 (1927), Moore made a contract to sell to Thompson all the timber on his land, to be removed in five years. Thompson paid the full purchase price, but did not record the contract. Moore later sold the land to plaintiff by a deed which reserved to Moore the timber and provided that such timber as was not removed within five years would 'go with the said place.' Plaintiff admitted that Moore told him that the timber had been sold, but testified that Moore did not mention the name of the purchaser. Plaintiff did not, however, inquire further by insisting upon production of the previous contract for examination. Instead, he proceeded with the purchase of the land on the assumption that the previous contract was a mere license, revocable at the pleasure of Moore, and that the sale of the land to him would revoke such a license to cut and remove the timber.

This court rejected that contention and held, at p. 324, 252 P. at p. 83:

'* * * the law is well settled in this state that the plaintiffs having been informed that the timber had been sold and that a contract existed, though unrecorded, evidencing this sale of the timber, the plaintiffs are charged with knowledge of the contents of that contract, unless they could show that such knowledge could not have been acquired by reasonable diligence.'

See also Paris v. Smith, 224 Or. 95, 98, 355 P.2d 635 (1960), and Merrill, Supra, 423--4, § 461. ¹

In this case defendants were told by Mrs. Lemire that she had sold all of her property in Oregon and were given the name of the realtor who did so on her behalf. That information constituted actual notice of a disclaimer of title by Mrs. Lemire. In addition, that information imposed upon defendants the duty to make a diligent inquiry to either determine the name of the actual owner or to show that his name could not have...