Cutler v. James

Cassoday, J. The recorded deed from Morris D. Cutler to Samuel D. James, and the judgment expanding the description therein so as to include the strip of land in question, must together be regarded, between the parties to that action, as a completed conveyance to him of the nature indicated bji- the language in the deed. The statute expressly declares that “ all judgments, ... in cases where the title to land shall have been in controversy, may be recorded in the office of the register of deeds, . , . with Wee effect as conveyances.” Sec. 2236, R. S. Such judgment, having been duly recorded, must have the same effect as the original deed, with the description corrected, re-executed, and re-recorded, woidd have had. True, the plaintiff herein was not a party to that action. But the statute, in effect, declares that “from the time” of filing notice of lis pendens in such action “ the pendency of such — 176 — action shall be constructive notice thereof to a purchaser or incumbrancer of the property affected thereby; and every purchaser or incumbrancer, whose conveyance or incum-brance is not recorded or filed, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by the proceedings in the action to the same extent and in the same manner as if he were a party thereto.” Sec. 3187, E. S. This being so, the judgment must relate back to the time of the filing of such notice, and hence, as to such purchasers or incumbrancers, be treated as recorded as of that date. Under that statute, and so far as that action was concerned, the plaintiff must be regarded the same as though he had purchased subsequently to the filing of the notice of lis pen-dens therein, and hence is bound by the proceedings and judgment in that action. Wright v. Jackson, 59 Wis. 577; Coe v. Manseau, 62 Wis. 89. Treating the deed as so reformed and re-recorded, even as against the plaintiff, and it is still claimed that it was a mere release and quitclaim of any interest -which Morris D. Cutler might have had in the land at the time of its execution, and hence ineffectual as against his prior unrecorded warranty deed to the plaintiff. The statute declares, in effect, that “ a deed of quitclaim and release of the form in common use,” or “ of the form ” therein given, “ shall be sufficient to pass all the estate which the grantor could lawfully convey by deed of bargain and sale.” Sec. 2207, E. S. The form given is simply to the effect that the grantor “ hereby quitclaims ” to the grantee. And the statute then declares that “ such deeds . . . shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of all right, title, interest, and estate of the grantor, either in possession or expectancy, in and to the premises therein described, and all rights, privileges, and appurtenances thereto belonging.” Sec. 2208, E. S. These two sections in terms, as it seems to the writer, ele — 177 — vate a mere “ deed of quitclaim and release ” into a “ deed of bargain and sale.” Russell v. Coffin, 8 Pick. 143; Hunt v. Hunt, 14 Pick. 374; Matthews v. Ward, 10 Gill & J. 443; Givan v. Doe, 7 Blackf. 210; Hall v. Ashly, 9 Ohio, 96; Wood v. Chapin, 13 N. Y. 517. Here tbe grantor, “for and in consideration ” of tbe purchase price paid in and by tbe deed as reformed, did “ give, grant, bargain, sell, remise, release, and quitclaim, unto tbe said” Samuel D. James, “ and to bis beirs and assigns, forever,” tbe land in dispute, “ to bave and to bold tbe same, together with all and singular tbe appurtenances and privileges thereunto belonging, or in anywise thereunto appertaining, and all tbe estate, right, title, interest, and claim whatsoever of tbe said party of tbe first part, either in law or equity, to tbe only proper use, benefit, and behoof of tbe said party of tbe second part, bis beirs and assigns, forever.” Tbe deed itself, especially in connection with tbe circumstances attending its execution, shows that Morris D. Cutler, in possession and representing himself as tbe owner of tbe land, bargained and sold tbe same for tbe price named; and in consideration therefor did give, grant, and convey tbe same to Samuel D. James, who, relying upon such representations, paid tbe price and obtained such reformed conveyance. These attending circumstances may properly be considered as showing tbe real intent and purpose of tbe instrument. Taylor v. Harrison, 47 Tex. 461. Tbe question is not whether Samuel D. James, by virtue of bis deed so reformed and tbe possession under it, got a better title to the land than tbe plaintiff had by virtue of his prior unrecorded deed, but whether his deed, so reformed, was such as to entitle him to tbe protection given by sec. 2241, E. S. That section provides, in effect, that “ every conveyance of real estate within this state . . . which shall not be recorded as provided by law shall be void as against any subsequent purchaser in good faith and for a — 178 — valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall first be recorded.” Was the deed to Samuel D. James so reformed a “conveyance” within the meaning of this section? The statute declares, in effect, that “the term ‘conveyance,’ as used” in that section, “ shall be construed to embrace every instrument in writing by which any estate, or interest in real estate, is created, aliened, mortgaged, or assigned, or by which .the title to any real estate may be affected in law or equity, except wills, leases for a term not exceeding three years, and executory contracts for the sale or purchase of land.” Sec. 2242, R. S. The deed, so reformed, being an “ instrument in writing,” and not within any of the exceptions named, must, by the very words of the section, be embraced in the term “ conveyance,” as used in sec. 2241. This view is in harmony with previous utterances of this court, and decisions of other courts under similar statutes. Wynn v. Carter, 20 Wis. 107; Hoyt v. Jones, 31 Wis. 396 et seq.; Ehle v. Brown, 31 Wis. 405; Helms v. Chadbourne, 45 Wis. 71-74; Girardin v. Lampe, 58 Wis. 267; Wood v. Chapin, 13 N. Y. 509; Hetzel v. Barber, 69 N. Y. 1; Westbrook v. Gleason, 79 N. Y. 30, 31; Brown v. Banner Coal Co. 97 Ill. 214; Shotwell v. Harrison, 22 Mich. 410; Fox v. Hall, 74 Mo. 315; Bradbury v. Davis, 5 Colo. 265; Frey v. Clifford, 44 Cal. 335; Graff v. Middleton, 43 Cal. 341. Thus it appears that Samuel D. James purchased subsequently to the plaintiff, and for a valuable consideration paid' at the time, and that his deed, as reformed by the judgment, constituted a conveyance which was duly recorded prior to the time when the plaintiff’s deed was recorded, within the meaning of sec. 2241. It also appears that the conveyance to the plaintiff was not recorded until after such completed conveyance to Samuel B. James was recorded. From these things it necessarily follows that the conveyance to the plaintiff must be regarded, under — 179 — the section of the statute cited, as void as against Samuel JD. James, provided it appears from the record that he was a “purchaser in good faith,” within the meaning of that section. If Samuel JD. James so purchased, without any knowledge of the plaintiff’s unrecorded deed, or any information sufficient to put him upon inquiry, then, in view of the other existing conditions mentioned, he was such “ purchaser in good faith ” within the meaning of that section. Mueller v. Brigham, 53 Wis. 176; Fallass v. Pierce, 30 Wis. 468. True, there is no direct evidence that Samuel JD. James did not know nor have information of the existence of the plaintiff’s unrecorded deed, but all inferences from the facts and circumstances in proof are in that direction and none in the opposite direction. These things being so, we think the burden of proving such knowledge or information was.upon the plaintiff, if he had any reason to believe it existed. That such burden was on the plaintiff, under the facts and circumstances disclosed in the record, seems to be sanctioned by the authorities. Lampe v. Kennedy, 56 Wis. 254; Shotwell v. Harrison, 22 Mich. 411; Wood v. Chapin, 13 N. Y. 523. Finding no error in the record, the judgment of the circuit court is affirmed. By the Court.— Judgment affirmed.