Deetjen v. Richter

The opinion of the court was delivered by HoetoN, C. J.: The deed from which Eudolph Eichter deduced his title was prior, in point of time, to that of Deetjen, but as it had not been recorded at the time of the guardian’s sale, the question is, did Deetjen, at his purchase, have actual or constructive notice of the title of Eudolph Eichter in the premises? In other words, did he obtain his deed under such circumstances that he is bound to know the title that Eudolph Eichter has to the premises? It appears that Eudolph Eich-ter and his daughter Lydia had lived together as father and daughter upon the premises from the time the land was patented until the daughter was declared insane, and there were no other members of the family. Counsel claim that the evidence before the trial court was not sufficient to charge Deetjen with notice, or even to make him suspect that Eudolph Eichter had any claim upon the land. The evidence shows that the plow-land had been leased for the season of 1882 to Charles Stober, the lease being made in the spring of that year. Deet-jen testified that “He knew that Stober was working a part of the Eichter place during the summer of 1882; that sometime during the summer, before his purchase, Stober told him he rented the land from Eudolph Eichter; that at the time, he knew Eudolph Eichter and his daughter were living together on the premises.” Charles Stober testified that “ He rented the plow-land for the season of 1882, from Eudolph Eichter; that during the summer of 1882 he had a conversation with Deetjen, in which he told him that he rented the plow-land on the place from Eudolph Eichter.” He further testified, that “During that season he worked the plow-land on the premises.” We think, therefore, that the evidence was sufficient to sus [414] tain the finding of the trial court that “the fact that said Stober was farming the land as the tenant of Rudolph Richter was known to Deetjen at the time of his purchase;” and we also think that the trial court did not err in deciding that “as Deetjen knew that Stober was in the possession of the premises as the tenant of Rudolph Richter, he was bound to inquire as to Rudolph Richter’s title.” (Johnson v. Clark, 18 Kas. 157; School District v. Taylor, 19 id. 287; Greer v. Higgins, 20 id. 420.) We have already held that the open, notorious and exclusive possession of real estate under an unrecorded deed requires a subsequent purchaser to take notice of the occupant’s title. We do not understand the rule to be that a person must actually reside upon the land to make his possession notice; he may actually improve and cultivate it, and perform open, notorious and decided acts of ownership over it without residing upon it; he may cultivate and improve it by a tenant, for the possession of the tenant is his possession. There is some conflict in the authorities whether the possession of a tenant under a lease is notice simply of his tenancy, or of his tenancy and also of his landlord’s title. But “there seems no good reason why, if it be admitted that possession is notice, or evidence of notice, there should be any modification of the rule that the possession by the tenant is the possession of his landlord. If the purchaser has followed up the suggestion which the possession of the premises by a third party implies, he will inquire of the actual occupant with the probability of learning that he holds as lessee of another. Inquiry cannot safely stop here, for the next step suggested by the circumstances would be to inquire of the landlord.” (Wade on Notice, § 286; 1 Hilliard on Vendors, 4, subdivs. 3 to 8; Wickes v. Lake, 25 Wis. 75; 1 Jones on Mortgages, § 600; Bank v. Flag, 3 Barb. 316; Wright v. Wood, 23 Pa. St. 120.) Deetjen had notice that Stober leased from Rudolph Richter, and this was notice that Rudolph Richter was in possession by his tenant. If Deet-jen had made proper inquiries, he would have been led to the knowledge of the fact that Rudolph Richter had the title to [415] the premises. Information which makes it the duty of a party to inquire, and shows where such an inquiry may be effectual, is notice of all the facts which might be thereby ascertained. No purchaser of real estate is at liberty to remain intentionally ignorant of facts relating to his purchase within his reach, where the property is in the actual, open, visible, notorious and exclusive possession of another, and then claim protection as an innocent purchaser. The presumption of law is, that upon inquiry he will ascertain the true state of the title. We do not find anything in the record tending to show that Charles Stober gave up the possession of the land leased by him before the purchase thereof by Deetjen, or that Budolph Bichter had in any way prior to that time abandoned the premises. The latter did not actually live upon the land after his daughter was adjudged insane, but that he and his tenant were in possession thereof is shown from the circumstances that Deetjen, in order to get possession of the house on the premises, obtained the keys thereof from Bichter and Stober, and that the latter was cultivating the premises all the season as Bichter’s tenant. Deetjen did not claim any right or possession of the premises upon the trial under a lease, or as a tenant, and therefore upon the issues before the court, the turning over of the keys of the premises did not prejudice Bichter’s rights. With the permission of the trial court, Deetjen was authorized to file au amended answer so.as to be subrogated to all rights under the mortgages which he had paid off, and therefore his equities by such order were fully protected. The other matters referred to in the briefs do not need comment. The judgment of the district court will be affirmed. All the Justices concurring.