Coon v. Browning

10 Kan. 85

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action in the district court to quiet title. The case is before us on the pleadings, findings, and judgment. None of the testimony is preserved. Those findings are, 1st, a patent to H. P. Throop; 2d, “that on the 24th of November 1860 the said Throop duly conveyed the said described land, by deed duly executed and delivered, to the said plaintiff;” 3d, record of said deed on March 5th 1861; 4th, that on the 29th of November 1860 the said Throop for valuable consideration duly assigned said patent to said Clark Coon, the plaintiff; 5th, that on the 8th of November 1860 the said Throop for valuable consideration duly executed and delivered a deed for the land in controversy to Bettie Browning, the defendant in this action; 6th, record of said deed January 28,1861; 7th, that at the time said plaintiff received his said deed from said Throop he was an innocent purchaser ■of said land, and had no notice either actual or constructive of the previous conveyance to said defendant; 8th, constructive notice to plaintiff, at the date of the record of his deed, of the prior deed; 9th, no notice actual or constructive to defendant at time of record of her deed of plaintiff’s deeds. Judgment on these findings was entered for the defendant, and of this plaintiff complains. Defendant, holding the prior deed, would, but for the registry acts, have the better title. Of this there can be no question, because at the time of conveyance to plaintiff, Throop, the patentee, held no title, for he had previously conveyed to defendant. But plaintiff claims priority by virtue of § 13, ch. 30, Laws 1859, p. 290, (Comp. Laws 1862, p. 355,) which is as follows: “No instrument affecting real estate is of any validity against subsequent purchasers for a valuable consideration without notice, unless recorded,” etc. * The deed to defendant was not recorded until .■after the execution of the deed to plaintiff, but still we do not see how this section helps the plaintiff. It is only “ subsequent purchasers, for a valuable consideration,” who can claim any advantage of it. Plaintiff was not a purchaser for ■a valuable consideration. (See finding No. 2.) True, the fourth finding shows that five days after obtaining his deed the patent was for a valuable consideration assigned to him. •But the assignment of a patent after the execution of a deed passes nothing. The deed transfers the land. Buying up title papers is not purchasing the land. Without a deed the assignment of the patent would not operate to transfer the title, though it might be evidence of a contract by which a deed could be enforced. More than this; for anything in the findings to the contrary, at the time he first paid value, that is, at the time he took the assignment of the patent, he may have had actual notice of defendant’s deed. Finding No. 7 simply shows want of notice at the time of plaintiff’s deed, five days before the assignment of the patent. We see no error in the judgment, and therefore it must be affirmed.

All the Justices concurring.