Fallass v. Pierce

The following opinion was filed at the June term, 1870: Cole, J. If we assume that the quit-claim deed containing the release of the two mortgages was fraudulent and void, so far as William H. Pierce is concerned, and that Parks is an innocent purchaser, for a valuable consideration, how then would the case stand under the recording acts ? That quitclaim deed was executed by Blanchard, the mortgagee, to Pierce, August 10, 1859, and recorded December 8,1860. The mortgages were assigned by Blanchard to Rice, previously, April 2, 1859 ; but those assignments were not recorded until June 21, 1861. Assuming these as facts clearly established, the evidence that Pierce had full notice when the quit-claim deed was executed by Blanchard to Mm, of the prior assignments of the mortgages, and that the land in his hands was subject to those liens, what is the position of his grantee, Parks, who purchased without notice of such assignments, and before they were recorded? It appears that Parks purchased the mortgaged premises September 19, 1860, though his deed was not recorded until January 10, 1868. And therefore the question is, whether the assignments to Rice, being made before the deed to Parks, and recorded after, but before that deed -was recorded, shall have priority over that deed, the mortgage 1 being apparently discharged when that deed was given, but [448] not when it was recorded ? It is claimed bj tbe counsel for tbe respondent, that Parks could only acquire a preference by recording bis deed before tbe assignments were recorded. We are referred, in support of this position, to tlie eases of Jackson v. Post, 15 Wend., 588; Van Rensselaer v. Clark, 17 do., 25, and Foot v. Burch, 5 Denio, 187. Without stopping to analyze these cases, it seems to us a sufficient comment to malee upon them, to say that they establish a rule different from, and in conflict with tbe one laid down by this court in Ely v. Wilcox, 20 Wis., 523. In this latter case, tbe New York rule referred to, which bolds that the record of a prior deed, though not recorded till after the second deed, and before the conveyance by the vendee in the second deed, is notice to a purchaser from him, not only of the first deed, but such notice that he is bound to inquire whether the grantee in the second deed was a Dona fide purchaser, and that rule is disapproved, as carrying the doctrine of constructive notice to an unreasonable extent. It is true there is a difference between the case of Ely v. Wilcox, and the one under consideration, that the deed from Mat-son and wife to Ely, of January 23d, 1856, which was in due form of law, was subsequent in date, and was upon record when the fraudulent grantee, Nathaniel Gr. Wilcox, conveyed the property to Timothy D. Wilcox, while here, when Parks purchased the premises in September, 1860, neither the assignments of the mortgages by Blanchard to Bice, nor the quit-claim deed executed by Blanchard to William H. Pierce, were upon record. But still we cannot see that the assignee of the mortgages can derive any advantage from this circumstance, since the assignments were not then recorded, and were not, in fact, recorded until after the conveyance to Parks and the quit-claim was upon record. Besides, Parks testifies that when he purchased of William H. Pierce, he delivered to him this quit-claim deed, and that he bought upon the faith of that deed, believing the mortgage upon the property actually released by that instrument. Of course, as already observed, there was nothing [449] upon record to give notice to Parks of the fraudulent character of this quit-claim deed, and that Blanchard had no right to release the mortgages upon the property. There was produced and shown him a good and sufficient release of the mortgages executed by Blanchard, the mortgagee. And while in this condition of the record, Pierce, the fraudulent grantee in the quitclaim deed, conveys the mortgaged premises to Parks, a bona fide purchaser, without notice of the assignment of the mortgages. Does he not take the property discharged of those liens ? It seems to us that he is to be protected by the rule that if one purchases Iona fide for a valuable consideration, without notice, from a fraudulent grantee, he takes a valid title, and is not affected by the notice of his grantor. See Mass, cases cited in Ely v. Wilcox. In this case, if Parks had not purchased until after the assignments were recorded in June, 1861, the quitclaim deed having been recorded in December, 1860, when it in fact was, then he would come fully within the doctrine laid down in Day v. Clark, 25 Vermont, 402, and be protected. The doctrine of this case is approved in Ely v. Wilcox, as containing a more reasonable rule than that laid down by the New York cases. And we are unable to perceive any valid ground for holding that Parks is now in a worse position, having purchased the mortgaged premises in September, 1860, when he did without notice of the assignment of the mortgages by Blanchard, and believing that those incumbrances had actually been released by the quitclaim deed, than he would have been if he had not purchased until after 21st of June, 1861. Section 25, chap. 86, R. S., which provides that every .conveyance of real estate within this state thereafter made, which shall not be recorded as provided by law, 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, whose conveyance shall be first duly recorded, obviously applies to successive purchasers of the same real estate, from the same seller, and must be limited to cases of that description. Raynor v. Wilson, 6 Hill, 469. [450] But again, it is said that Parks is not entitled to protection as an innocent purchaser, because he does not fully state in his answer what he gave for the land, and how and when this consideration was paid. He was permitted to prove, and did, in fact, prove the actual consideration paid, which was, as he stated, $6,000, in notes he held against William H. Pierce, and $1,000 in money. This evidence was without objection, and it seems to us too late now to object that the answer was insufficient for not stating what the precise consideration was, and how and when paid. Manifestly if any such point had been made on the trial, the court would, upon application, have permitted Parks to amend his answer, so as to obviate the objection. We are, therefore, inclined to hold the answer good, asno point was made upon it in the court below. We do not notice the other questions discussed by the counsel, since the point decided is fatal to the judgment. By the Court. The judgment of the circuit court is reversed and the cause remanded for further proceedings.