Hoyt v. Jones

The following opinion was filed at the January term, 1872. LyoN, J. The conveyances from Wilcox to Taylor, from Taylor to Milo Sykes, from him to Byron Sykes, and from the latter to Wallace Mygatt, were effectually “ wiped out ” by the judgment of July 18th, 1859. From thenceforth those conveyances, and the record thereof, ceased to have any force or effect as evidence of title in the respective grantees therein named, or either of them, or as notice to subsequent purchasers from Wilcox. The court which rendered that judgment had — 393 — jurisdiction of tbe subject matter thereof, and of tbe persons of tbe defendants named therein ; and it was adjudged that tbe foregoing conveyances were void and of no effect, and tbe title to tbe premises, or tbe lot in controversy in this action, was, by tbe terms of such judgment, confirmed in Seymour Wilcox. Instead of thus confirming tbe title thereto in Wilcox, bad tbe judgment directed Wallace Mygatt to execute a release of tbe premises to Wilcox, and bad such release been duly executed and recorded, obviously tbe effect would have been the same. That would merely have been tbe use of different means to accomplish tbe same end. In that case it would appear by the records, as it now appears, that Wilcox bad a perfect record title to tbe premises when be conveyed the same "to Babcock. It does not appear that either Wilcox or Babcock bad any notice, actual or constructive, of tbe existence of tbe unrecorded conveyances-from Wallace Mygatt to Edgar Gr. Mygatt, and from the latter to tbe plaintiff. Babcock was a purchaser of tbe premises from Wilcox in good faith, and for a valuable consideration. He was in the actual possession thereof under tbe bond previously executed to him by Wilcox, and after tbe same was conveyed to him be retained such actual possession by virtue of tbe conveyance. He also recorded such conveyance before tbe deeds to Edgar Gr. Mygatt and to plaintiff were recorded. We see no good reason why, under these circumstances, Babcock did not take a perfect title to the premises in controversy. Suppose tbe plaintiff’s claim of title was founded upon an unrecorded conveyance from Wilcox directly to Edgar Gr. Mygatt, or even directly to tbe plaintiff, of tbe existence of which Babcock bad no notice when be took tbe conveyance from Wilcox. In such case there can be no doubt that Babcock would bold tbe premises under bis recorded conveyance, by virtue of tbe recording act. K. S., cb. 86, sec. 25. We think tbe case as it stands involves tbe same principles — that there — 394 — is no substantial difference between tbe case supposed and tbe one presented by this record. Our conclusion is, that tbe deeds to Edgar Gr. Mygatt and to tbe plaintiff, respectively, are void as against tbe subsequent conveyance to Babcock, wbicb was first recorded; Babcock being a purchaser in good faitb and for a valuable consideration. It necessarily follows that tbe conveyance of the premises, executed by Babcock to tbe defendant, vested a good title thereto in the defendant, and that tbe judgment of the circuit court was properly in bis favor. These views render it unnecessary to decide tbe other questions discussed in the arguments of tbe respective counsel, with a single exception. In adjusting the costs, the taxing officer-allowed an item of sixty dollars for an abstract of title ; and, on a review of tbe taxation, the circuit court, pro forma, ap proved tbe bill thus taxed, and allowed tbe item to remain therein. We do not think that tbe cost of an abstract of title is a taxable disbursement. The examination of the records for tbe purpose of ascertaining tbe state of tbe title seems to be the proper duty of tbe attorney, and if, for convenience, some other person is employed to perform such duty, we are aware of no statute wbicb authorizes the expense thereof to be included in tbe taxed bill of costs. Unless, therefore, tbe defendant remits tbe amount of that item, there must be a retaxation at tbe cost of tbe defendant, and tbe objectionable item stricken out. But this does not work a reversal of the judgment. By the Court. — Judgment affirmed. Tbe appellant moved for a rehearing, and his counsel, Messrs. Mariner, Smith & Ordway, contended that a judgment is operative only between parties and privies pendente lite and post litem (Gray v. Schenck, 4 Coms., 461; Story’s Eq. Pl., Redf. ed., § 72 ); that to affect tbe title to land by a judgment, the owner of tbe land must be a party to the action (Hodson v. Treat, 7 — 395 — Wis., 281; Morse v. Cord, 14 id., 217; Green v. Dixon, 9 id., 538; Stark v. Brown, 12 id., 572 ); that all men are presumed to know tbe law, and tbe judgment against Taylor and others was a public record, and whoever took a deed of the premises in question after the rendition of that judgment, is conclusively presumed to have known that if the title had passed out of Wallace Mygatt before that action was commenced, the true owner of the land was not bound by the judgment; that the judgment itself merely adjudges the title to be in Wilcox as against Wallace Mygatt and all persons claiming under him since the filing of the notice of pendency of said action; that the provisions of the registry law here relied on, being in derogation of the common law, must be strictly construed; that to hold the judgment as of like effect as a release from Wallace Mygatt, and as standing in place of a deed, is a wide departure from the terms of the law; that Wilcox was not a purchaser from Wallace Mygatt (2 L. C. in Eq., 1; Jackson v. Dubois, 4 Johns., 221; Anderson v. Roberts, 18 id., 515; Dickerson v. Tillinghast, 4 Paige, 222; Thomas v. Kelsey, 30 Barb., 268; 29 id., 505, 539); that he did not pay a valuable consideration (Coddington v. Bay, 20 Johns., 637; Wright v. Douglass, 10 Barb., 97; Arnold v. Patrick, 6 Paige, 310); that he did not have a conveyance in any sense in which that word is. used, because the judgment did not attempt to pass the title, but merely to declare the true state of the ti tie; that his conveyance, if any, was not first nor at any time duly recorded, (Wood v. Chapin, 3 Kern., 518; 4 Kent, 9th ed., 171); that Babcock was not a purchaser for value without notice; and that appellant should be permitted to show that-Wilcox and Babcock took with actual notice of appellant’s deed. Counsel further argued that the court, in the action of Wilcox against Taylor and others, had no jurisdiction of the subject matter, i. e., of the title to the land in dispute, except so far as it had jurisdiction of the parties who had the title. Winborn v. Gorrell, 3 Ired., 117; 9 Paige, 136.