Graff v. Middleton

By the Court,

Belcher, J.: This is an action to quiet the title to certain real property in the City of San Francisco. Both parties claim under one William Chandler, who, it is admitted, became the owner of the premises in fee in December, 1848.

There can be no doubt that Eggleso purchased of Chandler in good faith and for a valuable consideration, for it is admitted that he paid thrée thousand seven hundred and fifty dollars for the property, and took his deed without notice, actual or constructive, of any prior deed or other defect in the title. It is manifest that he supposed he was purchasing a good title. He received a quitclaim deed and at once placed it on record. The plaintiffs also purchased of him in good faith and for a valuable consideration, and placed their deed of record. As early as 1856 they entered into the actual possession of the premises, and have held that possession ever since.

It appears that Chandler in fact conveyed the premises to Jones and McCormick in 1849, but their deed was destroyed by fire in June, 1850, and was never recorded, and no possession was ever taken under it. The defendants claim under this deed, and insist that it was effectual to pass the title as against the subsequent quitclaim deed to Eggleso.

[343]The plaintiffs had judgment in the Court below, and the defendants appeal.

Sections twenty-six and thirty-six of the Act concerning conveyances are as follows:

“Sec. 26. Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this Act, 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, where his own conveyance shall be first duly recorded.”

“Sec. 36. The term conveyance,’ as used in this Act, shall be construed to embrace every instrument in writing by which any real estate or interest in real estate is created, aliened, mortgaged, or assigned, except wills, leases for a term not exceeding one year, executory contracts for the sale or purchase of lands, and powers of attorney.”

The Act concerning conveyances was passed April 30th, 1850, and it is settled that it requires conveyances made before its passage to be recorded, and denounces the same penalty for failing to record them as in the case of conveyances made after its passage. (Stafford v. Lick, 7 Cal. 479; Clark v. Troy, 20 Cal. 219; Anderson v. Fisk, 36 Cal. 625.)