Fair v. Stevenot

California Supreme Court Jul 1, 1866Published

Before: Rhodes

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Holding. The court held that possession of real property under an unrecorded deed is evidence tending to prove notice to a subsequent purchaser, rather than a conclusive presumption of notice. Consequently, a trial court errs by granting priority to a recorded deed solely based on its recording date without considering whether the prior possessor's occupation provided sufficient notice to put the purchaser on inquiry.

Issues

Whether possession of real property under an unrecorded deed constitutes constructive notice or merely evidence tending to prove notice.
Whether a trial court may grant priority to a recorded deed without considering evidence of a prior possessor's occupation.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the fact of possession is only evidence tending to prove notice.”

“Notice, therefore, is the ultimate fact to be proven, and possession is evidence upon that issue”

“priority should not have been assigned to the constable’s deed, because first recorded, irrespective of the question of notice to the purchasers, of the existence of Morgan’s deeds.”

Synopsis

Notice arising from Possession under an Unrecorded Deed.—Possession of real estate by the grantee in a prior unrecorded deed is not of itself conclusive notice of the grantee’s title to a subsequent purchaser whose deed is first recorded, but such possession is only evidence tending to prove notice.

Same.—If the grantee in a prior unrecorded deed relies alone on the fact of possession of the property sold, to show notice to a subsequent purchaser whose deed is first recorded, the subsequent purchaser may show in rebuttal that he used due diligence in making inquiry and failed to attain a knowledge of the prior unrecorded deed.

Same.—Open, notorious, and exclusive possession of a prior grantee in an unrecorded deed is sufficient to put a subsequent purchaser whose deed is first recorded upon inquiry, and such possession is sufficient evidence of notice, unless the subsequent purchaser after making due inquiry fails to attain a knowledge of the unrecorded deed.

A Prior Deed not Conclusive as to Title—A deed which has been recorded is not conclusive evidence of title in the grantee, as against a grantee in a prior unrecorded deed who is in possession.

Consolidation of Causes in Supreme Court.—If the plaintiff and defendant each appeal from different portions of the same judgment, and the parties do not stipulate that either transcript may be added to the other, each appeal must be heard on its own transcript.

By the Court, Rhodes, J. The plaintiff appealed from that portion of the judgment, which was entered in favor of the defendant for one seventh of the premises sued for. This appeal and the appeal designated as No. 369 are taken from different portions of the same judgment. The first appeal was heard upon the judgment roll alone, and this cause is presented on a statement on appeal filed by the plaintiff, to which is attached a stipulation, by which it is agreed, among other things, that the cause “may be argued on the foregoing statement.”. The causes have not been consolidated in this Court, and the parties have not stipulated that either transcript may be added to the other, and this cause must be heard on the transcript filed herein, without the aid of that filed on the appeal taken by the defendants.

The rehearing was granted in this cause mainly that a re-argument might be had upon the question of notice to the defendants of certain unrecorded deeds under which the plaintiff claims, made prior to the deed under which the defendants claim.

It appears from the statement, that the deeds to Morgan, under whom the plaintiff claims, all of which were executed prior to the year 1858, were recorded on the 17th day of October, 1860; and that the constable’s deed under which the defendants claim was executed July 7th, 1859, and was recorded on the 22d day of September following; and that the constable’s sale, in pursuance of which the deed was executed, took place on the 28th of December, 1858. The statement does not contain a finding of the facts nor the evidence, except certain portions of that introduced by the defendants, to which objections were taken by the plaintiff, but certain facts are stated as facts in the case. It is stated as a fact that “ Morgan was an owner and in possession of his interests in the mine, superintending and working the same through himself or his agents from the year 1851 to the time of the eviction by the defendants or their grantors in 1859.” The only interest in the mine that is stated in the transcript to have [488]vested in Morgan was the interest of Rowe, which was the undivided one seventh of the mine. It further appears that in the progress of the trial “ the Court decided that as the various deeds of Rowe’s interest vesting the same in Morgan were not recorded until after the constable’s deed to the execution creditors, who became purchasers under such execution for the amount of their judgment, said execution creditors and purchasers were subsequent" bona fide purchasers, for a valuable consideration without notice; that their deed, being first recorded, had priority over Morgan’s subsequently recorded deed, and entitled them to Rowe’s interest of the one seventh so purchased by them at the constable’s sale, to which decision plaintiff then and there excepted.” 1

Fair v. Stevenot

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