Smith v. Dall

Terry, C. J. delivered the following opinion : This is an action of ejectment for a lot in San Francisco: both parties deraign title from the same source, through various mesne conveyances; the defendant claiming under a prior unrecorded title, accompanied by possession in himself or his tenants.

It appears from the record that the premises in question were originally granted by T. M. Leavenworth, Alcalde of San Fran[511]cisco, to Charles Richardson, who, acting by his Attorney, John II. Brown, conveyed the same to Malachi Fallon, by a deed which was never recorded.

Afterwards the same property was conveyed by Charles Richardson to Whitcomb and Lien, and by them to the plaintiff. The deed from Richardson to Whitcomb and Lien, was under seal and duly acknowledged. It was recorded on the day after its execution; but on the books of the record there is no copy of seal, or mark, indicating that there was a seal to the instrument. At the time of the conveyance from Whitcomb and Lien to the plaintiff, defendant was absent from the State, and the premises were in the possession of his tenants, and plaintiff was a purchaser for a valuable consideration, and had no actual notice of the existence of the deed from Richardson to Fallon. The Referee reported a finding and judgment in favor of plaintiff, which report was set aside and a new trial granted, and from this order plaintiff appeals.

Two questions are presented by the record :

1st. Is the possession of\\ tenant notice of his landlord’s title?

2d. Does the fact that the Recorder failed to make some mark upon his books to indicate that there was a seal to the conveyance recorded vitiate the record ?

Upon the first point, the weight of authority is that possession (if notice at all under the recording act,) is notice of the title of the possessor alone, and no other*. “Uotiee of a tenancy will not, it seems, affect a purchaser with constructive notice of the lessor’s title. Therefore, if a person equitably entitled to an estate let it to a tenant who takes possession, and then the person having the legal estate, sells to a person who purchases bona fide, and without notice of the equitable claim, the purchaser must hold against the equitable owner, although he had notice of the tenant being in possession.” (2 Sug. on Vendors, 558.)