First National Bank of Stevens Point v. Chafee

Cassoday, O. J. Of course, the actual and open possession of the land by Mathews, as vendee under the unrecorded contract for the purchase of the same, as found by the court, was constructive notice to Ohafee and the world as to what his rights and interest in the land were. Meade v. Gilfoyle, 64 Wis. 25; Coe v. Manseau, 62 Wis. 82; Wickes v. Lake, 25 Wis. 71; Ely v. Wilcox, 20 Wis. 523. But such constructive notice related primarily to the rights and inter-' est of Mathews. Thus, it has been held that where the vendee, in such actual possession, has paid to the vendor the full amount of the purchase price for the land, then such vendee by such payment becomes the absolute equitable owner. Honzik v. Delaglise, 65 Wis. 499. In the case at bar the vendee had failed to keep up the interest', much less to reduce the principal. As Wiley informed Chafee, Mathews’ interest was practically nothing. All of Mathews’ payments had been made to Wiley personally, and Mathews did not know that Wiley had transferred his notes or the contract to the plaintiff until this action was commenced. There is no pretense that Ohafee had any knowledge or reason for believing that such transfer had been made until long after he had íoaned his money to Wiley and taken and recorded his mortgage. So far as'Ohafee was concerned,, [48] and so far as Mathews was concerned, such transfer from Wiley to the plaintiff was a secret. To hold that such possession of Mathews was a constructive notice to Ghafee of the secret "arrangement between Wiley and the plaintiff — unknown to both Mathews and Ghafee — would be to defeat the very object of the registry statutes. It does not appear that the plaintiff held any formal assignment of the land contract from Wiley, much less that any such assignment was recorded. The statute declares 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 valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall first be 'recorded.” R. S. sec. 2241. The statute also declares that “ the term £ conveyance/ as so used, 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,; and the term ‘ purchaser/ as so used, shall be construed to embrace every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration, and also every assignee of a mortgage or lease, or other conditional estate.” R. S. sec. 2242. From this last section it is apparent that a mere “ executory contract for the sale or purchase of land” is not a “ conveyance,” within the meaning of sec. 2241, R. S., and that the vendee in such contract is not a “purchaser” within the meaning of that section. This was held by Judges Davis and HopKINs in Curts v. Cisna, 7 Biss. 260. The ground of such decision is that such vendee must rely on the responsibility of his vendor. Id. But, as indicated, if the contract is so far executed that the vendee has entered into the open [49] •and notorious possession of the land contracted for, then he is protected by virtue of such possession. But the statute also provides that “ every bond or contract for the sale or purchase of lands, or concerning any interest in lands, made in writing, under seal, attested by two witnesses, and acknowledged, may be recorded in the office of the register of deeds of the county where the lands lie.” E. S. sec. 2238. The statute further provides that “ every bond or contract mentioned in section 2238, when executed, acknowledged and recorded, as provided in said section, shall be notice to and take precedence of any subsequent purchaser, and shall operate as a lien upon the lands.therein described, according to its import and meaning.” E. S. sec. 2245. But the land contract was not recorded, and it does not appear that it was so executed as to be recordable. The term “ convey-anee,” as used in sec. 2241, is construed by sec. 2242 to include a mortgage, and the word “purchaser,” as therein used, is construed to include a mortgagee. Id. In the absence of actual notice or knowledge of such facts as would put a prudent man upon inquiry which would lead to actual notice, Ghafee, as such mortgagee, had the right to rely on Wiley’s apparent record title in fee, subject, of course, to the rights and interest'of Mathews in possession. Ghafee was a Iona fide purchaser as against the plaintiff. Had Wiley, at the time of transferring the ten notes made by Mathews to the plaintiff, also executed and delivered to the plaintiff a warranty deed of the premises and then failed to record the same, such deed would, under the statutes cited, have been void as against the mortgage from Wiley to Ghafee so recorded in October, 1895. Since that would be so in respect to such warranty deed, it must, for a much stronger reason, be so with respect to the secret transfer from Wiley to the plaintiff, which did not rise to the dignity of a conveyance, and was not recorded nor recordable. It would be preposterous to hold that such secret parol transfer of the [50] notes and land contract to the plaintiff was more potential than such unrecorded warranty deed would have been. We must hold that the plaintiff’s claim upon, and interest in, the premises in question are subject and subordinate to Chafee's mortgage. Lamont v. Stimson, 5 Wis. 443; Hoyt v. Jones, 31 Wis. 389; Mason v. Beach, 55 Wis. 607. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in accordance with this opinion.