Faris v. Finnup , 84 Kan. 122 ( 1911 )

The opinion of the court was delivered by

Burch, J.:

The only subject involved in this appeal is that of actual notice of an unrecorded deed, under the act relating to conveyances of real estate, which reads as follows:

“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Gen. Stat. 1868, ch. 22, § 21, Gen. Stat. 1909, § 1672.)

T. C. Mitchell acquired title to the land in controversy by means of a tax deed, dated October 23, 1899, and recorded October 24, 1899. Mitchell quitclaimed to H. P. Faris on May 1, 1900. This deed was not recorded until October 25, 1904. On February 14, 1903, Mitchell conveyed the land to George Lynn Miller, the deed being recorded March 5, 1903. On July 8, 1904, Miller conveyed to George W. Finnup by ;a warranty deed, which was at once filed for record. In an action of ejectment brought by Faris the trial court held that Finnup was entitled to the land because when he purchased he had no actual notice of the unrecorded deed from Mitchell to Faris. Faris appeals.

Three matters are relied on as affording actual nobice of the appellant’s unrecorded deed. In March, 1900, Mitchell brought suit against a large number of defendants, including the appellant, to quiet his title to a large number of tracts of land, including the one in controversy. On December 6, 1900, this- suit was dismissed as to the appellant. The Mitchell deed to-Miller was somewhat peculiar in form. It remised, released and quitclaimed Mitchell’s interest in the land in controversy and thirty other quarter sections, and then provided as follows,:

“The said parties of the first part, hereby warrant to the -said party of the second part against all conveyances made by the said parties of the first part, to any of said lands to the amount of the purchase price paid for said land.”

When the appellee purchased he knew of no outstanding interest, but he was told by Miller that the title was good except as to one quarter section, which had some little defect which he would have fixed in a few days or in a week or so. The particular quarter section was not specified.

Actual notice may be either express or implied; that is, it may consist of knowledge actually brought personally home, or it may consist of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. (Pope v. Nichols, 61 Kan. 230.) No claim of express notice to the appellee is made. Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigate further, .and when such facts furnish a natural clue to the ultimate fact.

The appellee purchased upon a warranty of full title. Consequently he was not put upon inquiry like one who accepts a quitclaim deed. (Rich v. Downs, 81 Kan. 43.) He could safely rely upon his vendor’s warranty unless the public records disclosed the appellant’s claim or unless cogent facts outside the records, duly brought to his attention, apprised him of it.

Miller’s statement was so utterly indefinite that it directed attention to nothing. It purported to relate to some small matter easily remedied and not to something which went to the very foundation of the title. It opened no path leading to knowledge of any specific defect. Therefore no duty rested upon the appellee, in consequence of the remark, to look beyond the records and the facts suggested by possession. It is not pretended that the appellant ever held possession of the land.

The record of the suit to quiet title afforded no suggestion that the appellant might own the land in controversy. There is nothing to connect his name with any particular tract of the many described in the petition, and the fact of dismissal as to him indicates that he made no claim to any of it, and. so was misjoined, as definitely as it indicates anything.

The appellee was required to take notice of facts appearing upon the face of recorded instruments in his grantor’s chain of title. (Knowles v. Williams, 58 Kan. 221.) The deed from Mitchell to Miller covered many pieces of real estate, aggregating nearly 5000 acres. All of them were in fact conveyed. The collateral contract of warranty contained in the deed did not affect the character of the instrument as a conveyance. Nor did this contract admit that the grantor had made previous conveyances of any of the lands. It merely provided for a return of the consideration for any tract should a previous conveyance of it be produced.

What line of inquiry would such an instrument naturally suggest to a purchaser taking title under a warranty deed ? He would go to the office of the register of deeds to see if any conveyances of his tract had been made. Finding none, he would be assured that it was not involved. He would not be required to find Mitchell and interrogate him. The law casts the duty upon the grantee in a deed to give notice of his right to third persons, and not upon the grantor. Unrecorded deeds are invalid as to subsequent purchasers without information that they have been given, until they are deposited with the- register of deeds for record. Such a purchaser may assume the nonexistence of any instrument which has not been made valid against him in this manner; and before a purchaser taking a warranty deed can be deprived of the benefit of this assumption information that a prior deed is in fact outstanding and unrecorded must be quite definite and specific.

The appellant cites a case in which a deed expressly excepted and reserved from the grant lands which had previously been conveyed. (Adams v. Hopkins, 144 Cal. 19.) The only question determined in respect to that instrument was, however, the scope of the grant. The question of notice was not passed upon, and it was held that the words “previously conveyed” were used in the sense of “previously sold-.”

The judgment of the district court is affirmed.

Mason, J., not sitting.