Tucker v. Vandermark

The opinion of the court was delivered by Valentine, J.: This was an action of ejectment brought by Edwin Tucker, plaintiff in error and plaintiff below, against the defendants in error, defendants below, to recover the possession of the lands described in plaintiff’s petition. The facts, as found by the court, are these: That on the 25th of May, 1874, and long prior thereto, one H. C. Jackson was the owner in fee of the lands in controversy, and that on said 25th of May, said Jackson, for a good and valuable consideration, sold and conveyed by warranty deed the said lands to defendants in good faith; that on the 1st of July, 1874, the defendants entered upon and took actual possession of said lands, and have continued in possession ever since. On the 1st day of September, 1874, a writ of attachment was duly levied on said lands as the property of said Jackson, at the suit of the Eureka bank against said Jackson, in Greenwood county district court, which attachment remained in full force till the rendition of judgment in such action. On the 7th day of November, 1874, the said deed of Jackson to the defendants for said lands was duly recorded. On the 27th day of April, 1875, the said Eureka bank duly obtained judgment in said suit in said district court against said Jackson for $446.70, and $61.80 costs, and said judgment was declared a lien on said lands theretofore attached in said action; and by the terms of such judgment said lands were ordered to be sold for the satisfaction thereof, as on execution; and on the 28th day of June, 1875, an execution was duly issued on said judgment, and by virtue thereof said lands were, on the 27th day of September, 1875, duly sold to the plaintiff for the sum of $620; and on the 16th day of October, 1875, said district court duly confirmed said sale; and on the 26th of October, 1875, the sheriff of Greenwood county, in due form of law, executed and delivered to said plaintiff a sheriff’s deed, conveying to him all the right, title and interest of said Jackson in said lands, and that prior to the levying of said attachment upon said lands, the plaintiff had no actual notice of the deed of Jackson to defendants for said lands. “The court found as conclusions of law, that the plaintiff was not, at the time of the commencement of this action, the owner of or entitled to the possession of said lands, and that the defendants were entitled to judgment for costs. And thereupon said court rendered judgment in favor of the defendants for costs; and immediately afterward, and on the same day, the said plaintiff moved to set aside the conclusions of law and for a new trial, which motion was by the court overruled, to which the plaintiff at the time duly excepted, and now brings the case here.” The only question involved in this case is the following: Where an order of attachment is levied on a certain piece of' land, which the public records show belongs to the defendant in the attachment, but which in fact does not belong to him, but belongs to a third person who has the actual possession thereof, and holds the same in good faith and for a good, valuable, and sufficient consideration, under a prior but unrecorded deed, is the attachment a lien on such land as against said third person? This question we think has already been substantially settled in the negative by prior decisions of this court. (See Moore v. Reaves, 15 Kas. 150; Johnson v. Clark, 18 Kas. 157; School District v. Taylor, 19 Kas. 287; Greer v. Higgins, 20 Kas. 420, 426; especially, the case of School District v. Taylor.) As between the defendants in this case and Jackson, the defendant in the attachment, (and all others having actual notice of said deed,) the defendants in this case were the absolute owners of said land in every respect, both in law and in equity. But as between the defendants in this case and the plaintiff, who really represents the plaintiff in the attachment suit, the defendants in this case were probably only the equitable owners of the land — the legal title thereto still remaining in Jackson. But they were the absolute, unqualified, unconditional, equitable owners; and as they were in the actual possession of the property, the plaintiff, as well as all others, was bound to take notice of their equitable ownership. Of course, such possession, in order to require parties to take notice thereof, must also be open and visible; but from the record in this case, we must presume that it was open and visible, and not only as against Jackson and the parties claiming under the attachment, but also as against all other persons it was exclusive. Before the plaintiff in this case obtained any interest in said land — indeed, before any judgment was ever rendered in the attachment suit — the defendants in this case converted their said equitable title to said land into a legal title by having their deed from Jackson recorded. We decide this case upon the theory that said deed from Jackson to the defendants in this case was void as against the plaintiff in this case, when considered separate and alone, and not in conjunction with the other facts; and that it cannot be considered as valid in any case against such persons as the plaintiff in this case, except where it as a simple contract, and the other facts of the case taken together, are sufficient to constitute an equitable title. An attachment cannot be made to operate upon a mere legal title as against the equitable owners of real estate, where the parties claiming under the attachment have at the time the attachment is levied or are bound by law to take notice of the paramount outstanding equitable title. As between the parties to this action, the levy of said attachment, and all proceedings founded thereon, must be considered as void. The judgment of the court below will therefore be affirmed. All the Justices concurring.