O'Rourke v. O'Connor

39 Cal. 442

• Court: California Supreme Court
• Decided: July 1, 1870
• Docket: No. 2,107
• Status: Published

Opinion

Rhodes, C. J.,

delivered the opinion of the Court:

The plaintiff executed to Cody a conveyance of the premises in controversy, for the purpose of securing him against liability on a bail bond, which he had executed as a surety for the plaintiff, who had been arrested on a criminal charge. The deed was recorded, but the purpose for which it was executed, was not evidenced by an instrument in writing. From the execution of the deed to the commencement of this action, the plaintiff or his tenant was in the actual possession of the premises. Defendant, O’Connor, commenced an action against Cody, caused the premises to be attached, and judgment having been rendered and execution issued thereon, the Sheriff was about to sell the premises as the property of Cody. The prosecution against the plaintiff was dismissed, his bail was exonerated, and Cody reconveyed the premises to the plaintiff, but the deed was not recorded until after the premises were attached. The sale under the execution was enjoined, and the defendants appeal from the judgment and the order denying a new trial.

Had Cody, previous to the attachment, conveyed the premises to a third person, who had notice that the deed of the plaintiff to Cody was intended as a mortgage, such person would have taken nothing by his conveyance. That is to say, he would have taken only the naked legal title, and could not have resisted the claim of the plaintiff to have the title reconveyed to him when the bail was exonerated ;

A person who has acquired a lien by virtue of judicial process, occupies no better position, than would the third person in the supposed case.

If, then, the actual possession of the premises by the plaintiff’s tenant was sufficient to puta purchaser from Cody on inquiry as to the plaintiff’s title or interest, the judgment is right. It is well settled in this State, that the possession of the tenant is notice of his landlord’s title; that is to say, such possession is sufficient to put a person dealing with the property upon inquiry; and the law will charge him with notice of all those facts which he might have ascertained, had he pursued the inquiry with proper diligence. (Dutton Warschauer, 21 Cal. 628; Pell v. McElroy, 36 Cal. 268.) .

Judgment and order affirmed.