Strong v. Lynn

Vanderburgh, J.1 One Russell made a deed of assignment for the-benefit of his creditors on the 7th day of October, 1875, conveying thereby to the assignees therein named all and singular his lands- and tenements within the state, and all the property of every name and nature to or in which he had any title or interest; which was316 therein referred to as more particularly described or enumerated in the schedule thereto annexed. It was also declared in the deed that the true meaning and intent thereof was “to grant and convey to the assignees all and singular the real and personal property of the party of the first part; and any property not enumerated and described in said schedule shall nevertheless pass to said party of the second part by virtue of these presents; the said schedule being intended to describe the property of the party of the first part for easier identification, and not to restrict the general terms of these presents hereinbefore set forth.” This deed was recorded without the schedule, which was retained by the assignees, and filed by them with their final report. In November, 1879, the assignees sold the lands in controversy to the defendant for a valuable consideration, and transferred and conveyed the same by deed of quitclaim of all their right, title, and interest in and to the same, “accruing by the assignment aforesaid.” The defendant took such conveyance without notice of any outstanding unrecorded deed. At the time of the assignment the lands stood of record in the name of the assignor, and the title appeared to be in him. He had, however, previously conveyed the same by deed of warranty to the plaintiff in this action, which was sent by him to the register of deeds for record in September, 1876, but was not filed for record until the 2d day of June, 1886. On his receipt of the deed the register immediately notified plaintiff that it could not be recorded, because the taxes were unpaid. The defendants’ deed was duly recorded January 16, 1880. Upon these facts, the court was clearly right in ordering judgment for the defendant. 1. The deed was complete without the schedule, which, by the •terms of the deed, did not limit its operation; and the effect of the record was not impaired by the omission of the schedule. It was .clearly the intent of the parties, as appearing upon the face of the instrument, that all the property of the assignor should pass to the .assignees, whether designated in the schedule or not. 2. Upon the record, the title to the lands in controversy apparently passed to the assignees; and while they are not to be considered as purchasers for value, nor, as between them and their assignor, to [317] have acquired any other or better title or interest than he had in the property, yet a bona fide purchaser from them would stand precisely in the same position as if he had purchased and taken a conveyance from the assignor in ignorance of an outstanding unrecorded deed, and would be entitled to the same preference, within, the intent and meaning of the recording act. Jackson v. Van Valkenburgh, 8 Cow. 260 ; Varick v. Briggs, 6 Paige, 323. 3. A deed of quitclaim in the form executed to defendant, and under which she claims, is placed on the same footing as deeds of bargain and sale under the present statutes, (Gen. St. 1878, c. 40, §§ 4, 21;) and a bona fide grantee in such deed (if it is recorded) is entitled to the same .preference over an unrecorded deed. The amendment of 1875 was undoubtedly made ex industria to change the rule existing under the former statute as interpreted in Marshall v. Roberts, 18 Minn. 365, (405.) The object of the statute is to protect persons buying real estate in reliance upon the record. Ordinary prudence and duty required the plaintiff to see to it that his deed was seasonably recorded, and, having neglected to do so, he cannot complain if one purchasing the title in good faith as it appeared of record is preferred to him. Merchant v. Woods, 27 Minn. 396, (7 N. W. Rep. 826.) Judgment affirmed. Footnotes [1] Mitchell, J., was absent, and took no part in this case.