Scott v. McCullock

13 Mo. 13

• Court: Supreme Court of Missouri
• Decided: January 15, 1850
• Status: Published

Opinion

BIRCH, J.

On the 9th of October, 1846, the complainant sold to James H. and Burwell Taylor, certain lands in the county of Moniteau, for the sum of a thousand dollars, which he acknowledged himself to have received from them in the body of the deed, but which, by a memorandum made directly under the deed, and before the certificate of acknowledgement, it appeared, had not all been paid. That memorandum was in these words': “ One of the payments constituting a part of the within consideration of this conveyance, is a bond due the first day of January, one thousand eight hundred and forty seven. We, James H. Taylor and Burwell, the persons to whom this conveyance is made, do hereby agree that it is distinctly understood by us, that the within named parcels of land conveyed, are still held and firmly bound for the faithful discharge of the aforesaid bond, due on the first day of January, 1847, which was executed and subscribed by us for the sum of three hundred dollars. Witness our hands and seals the day and year aforesaid.” This memorandum was signed by James II. Taylor, but not by Burwell. Shortly afterwards the two Taylors sold the land in question to their brother, Ravenscroft Taylor, and the three hundred dollar payment, recited in the memorandum, having never been made to Scott, who has a judgment for it at law, he seeks by his bill to subject the land to its payment. The only question, therefore, which it becomes necessary to consider, is was the memorandum thus standing upon an unrecorded deed, sufficient to charge the subsequent vendee, with notice of the lien originally retained. The loose and too confiding custom of the country, whereby lands are so often sold and transferred without reference to the precedent muniment of title, has been courteously and ingeniously invoked by the counsel for the appellees, as a reason for relaxing or modifying the early and steady English rule upon the subject of notice. It has failed to convince us, however, of anything except that reliance is too often misplaced, either in the uprightness of grantors or their ultimate ability to make good their covenants of warranty, while the reflection thus suggested, and again given to the general subject, has but the more impressed us with the propriety of standing by the original rule alluded to. It is written by Sugden in these words : ‘‘What is sufficient to put the party upon an inquiry, is good notice, and therefore, in all cases where the purchaser cannot make out a title but by a deed which leads him to the real fact, whether by description of the parties, recital or otherwise, he will be deemed conversant thereof.” Applying the rule they quoted, to the facts in the present case, it should be noted, 'first, that Scott never parted with his land, except as denoted by a paper which it was impossible to read without encountering a memorandum, which would at least put a subsequent purchaser upon inquiry and lead him to the real fact (as subsequently established in the suit at law) namely, that a portion of the purchase-money was unpaid. Ravenscroft Taylor, then, must be deemed, either to have had sufficient notice of the equitable lien of the complainant or to have contented himself with the warranty of his brothers. If he has been mistaken in the latter, such sympathy as may be felt for his children, cannot be indulged at the expense of others, much less at the expense of one of the most beneficent and least erring principles of our jurisprudence.(

a) To say nothing, then, of other concurring circumstances in this case, the judgment of the Circuit Court must be reversed, and the cause remanded for a decree in conformity with this opinion.

(a) The purchaser of lands affected hy any instrument in writing not properly recorded, must have actual notice of the existence of such instrument, and the fact of notice is to be proved like other facts, by competent evidence. A person having notice of an instrument of writing affecting land, but not duly recorded, may protect himself by a conveyance from a purchaser without notice — Lemay v. Poupenez, 35 Mo. it. 71. An unrecorded deed is good against a judgment, if recorded before sale on execution under it — Davis v. Ownsby, 14 Mo. R. 170; Valentine V. Havener, 20 Mo. R. 133; Reed v Ownsby, 44 Mo. R. 204; Potter v. McDowell, 43 Mo. R. 93; also, see 1 Wag. Stat. title Conveyance. But see Le Neve v. Le Neve, 2 Ld. Ca. Eq. p. 24, for an elaborate exposition of the doctrine of Notico.