Scheerer v. Cuddy

Works, J. John Bryson, being the owner of certain real estate, leased certain of the rooms in the building thereon to the appellant Los Angeles Lodge No. 42, F. & A. M., for the term of ten years, by a written lease. The lodge took and held actual possession of these rooms, but the lease was not recorded. Subsequently, and while the lodge was in possession, Bryson sold and conveyed the property to the plaintiff, and his deed was duly recorded. Whether the plaintiff had actual notice of possession of the premises by the said appellant, or not, is one of the controverted questions in the case; but it is a conceded fact that he knew of it soon after his purchase, and that he received and collected the rents for the [272]premises from the lodge for six months thereafter, at the rate agreed to be paid in the lease, and that the lease was recorded during this time, and three months’ rent was collected by the plaintiff after the lease was recorded, and he had actual knowledge of its contents. After receiving the rents, be commenced this action in ejectment against the appellants, the other defendants being officers of the lodge. The court below found that, as against the claim of the appellants, the respondent was a bona fide purchaser for value. Whether he was, or not, depends upon whether the circumstances were such as to put him upon such inquiry as would have disclosed the rights of the defendant Los Angeles lodge, as between it and Bryson. As between Bryson and the lodge, the lease was binding without being recorded. (Civ. Code, sec. 1217.)

As against, the plaintiff, it was void, if not recorded, unless he had notice of its existence, or such notice as should put him upon such inquiry as would disclose its existence. (Civ. Code, secs. 1214,1217.)

That the lodge was in the actual possession of the property at the time of the plaintiff’s purchase, is an undisputed fact in the case, but the plaintiff testifies that he did not know it was in possession, and that when he looked at the house before purchasing it the doors of these rooms were locked, and he did not know that they were occupied.

We think the finding of the court below, that, under these circumstances, admitting the truth of the plaintiff’s testimony, he was a bona fide purchaser, was not sustained by the evidence. The actual possession of the premises by the appellant was sufficient to put the respondent upon inquiry as to the nature and extent of its claim. (Pell v. McElroy, 36 Cal. 268; O’Rourke v. O’Conor, 39 Cal. 446; Moss v. Atkinson, 44 Cal. 9, 17; Hunter v. Watson, 12 Cal. 363; 73 Am. Dec. 543; Lestrade v. Barth, 19 Cal. 660, 675; Dutton v. Warschauer, 21 Cal. 610; 82 Am. Dec. 765.) The effect of such possession,