Tabor v. Sullivan , 12 Colo. 136 ( 1888 )

By the Court.

The first inquiry we deem it important to make relates to Eoley’s knowledge of the unrecorded deed at the time of his purchase; but, in examining the evidence upon this subject, we must bear in mind two propositions, viz.: First. That though the action in its inception was ejectment, yet the pleadings admit the legal title to be in plaintiff. Defendants, by their cross-complaint, present a defense purely equitable in its nature, and the evidence in question was admissible only in connection with this equitable defense. Therefore, while the entire case was, against plaintiff’s objection, submitted to the jury, and while the form of the verdict is that usually adopted in ejectment, yet in truth it is based upon findings of fact pertaining exclusively to equitable issues. Such findings are, under the present practice, not absolutely binding upon the court. They were in the case at bar merely advisory to the chancellor below, and this court is free to exercise great latitude in considering evidence received in support of the equitable issues involved, even though it may have been submitted to the jury. Second. That Eoley, whose testimony is mainly relied on to establish his knowledge of the unrecorded deed, is clearly shown by his own admission and other evidence to be interested on the side of defendants in the event of the suit. He was put upon the stand by them for the express purpose of attacking the title which he himself had previously conveyed to plaintiff. The latter’s title to seven-tenths of the fifty feet in controversy is sought to be undermined and destroyed by showing that Foley had notice of the existence of the unrecorded deed, and therefore did not himself take an indefeasible title under the statute. Foley’s position in the case, interested as he is with defendants, who are seeking to destroy the. title of his grantee, conveyed, as he himself acknowledges, without a word of notice or warning to such grantee, justly subjects his testimony to the suspicion of bias, warrants the most searching scrutiny, and greatly lessens its value as evidence for the defendants.

But what does Foley say as to his knowledge of the unrecorded deed at the time he purchased ? We quote a portion of his testimony: “Well, about the only thing that was said was that a piece of this ground had been deeded away,— pointed out the ground. Hughes was the man that did it. * * * I don’t think I understood as to whether it was stated that all or only a part [of the locators] had signed the deed. At that time I don’t think there was anything said about it. I received a deed for the whole of the Matchless from the same parties after I had been told some portion of it had been deeded away. * * * I took the deed for the entire ground, finding it all in their names. I never learned where this deed was. As to who signed it I have no knowledge at the present time. Whether that was mentioned or not I could not say. * * * I have no recollection of Mr. Hughes saying anything about the deed being good or bad. I could not swear as to the circumstances under which it was made, either. * * * I made an effort to find out who signed the deed, and where it was, but I did not find any trace of it.”

Besides Foley’s testimony the record contains the following (given by Starr, one of the Matchless locators, and also an interested witness, called by defendants): “Question. Well, give the substance of what you told him [Foley] as to whether you had given any of it away or not. Answer. I don’t recollect. I could not say; hut I know I told him something with regard to that portion of the ground. I may have told him about having deeded it. I don’t remember. I told him something about that portion we agreed to let Davers have. I didn’t tell him about the circumstances under which we conveyed it.”

It thus appears that Foley’s information as to the existence of a prior valid conveyance covering fifty feet of the Matchless lode, and as to the character of such conveyance, if made, was extremely slender and unsatisfactory. But, conceding that it was • sufficient to put him upon inquiry, we must assume, for the purposes of the present controversy, that he made the requisite investigation. He says: “I made an effort to find out who signed the deed, and where it was, but I did not find any trace of it.” The duty of showing the character of this “effort,” and its sufficiency, if a doubt thereof existed, did not, in our judgment, devolve upon plaintiff. Under the circumstances, he might safely accept Foley’s declaration in this regard. Moreover, were Foley the plaintiff, and undertaking to defend his own title, we are not prepared to say that this evidence would have been insufficient, especially coupled, as it should be, with matters we shall presently mention. But, considering the nature of the proceeding and attitude of the parties, it is clear that we should hold defendants’ endeavor to destroy plaintiff’s title by showing a want of good faith in Foley’s purchase a failure.

The foregoing conclusion is rendered impregnable by a reference to the disclosures that must have followed the most exhaustive investigation by Foley. He would have learned that the agreement was an arrangement with all of the Matchless owners for the entire title to the strip of ground, not a several or individual agreement with them for their undivided interests therein; that three of the parties who were to have been grantors had positively refused to execute the deed, and that all effort to procure their signatures had been abandoned; that the grantees named in the instrument, had he succeeded in discovering who they were, never obtained or even requested its possession; that it had been lying for nearly a year in the safe of a notary public, who in the meantime had deceased, and that its whereabouts were forgotten by all the parties, except possibly Hallock. He would also have found strong evidence tending to show that there was no legal consideration for the instrument, and that there had been no legal delivery thereof by the five grantors who had signed it. With such information Foley would have been justified in -law in assuming that the agreement in pursuance of which the conveyance was attempted had been wholly canceled or abandoned by the parties.

But if Foley’s title was good, plaintiff’s title cannot be successfully challenged. It was immaterial to plaintiff that the deed under which defendants claim title had been recorded prior to his purchase. Foley being protected under the recording act at the time of his purchase, his title is not vitiated by the subsequent filing of the earlier conveyance, and his grantee is as fully protected as himself. Page v. Waring, 76 N. Y. 463, and cases cited; Wade, Notice, § 241.

It follows from the foregoing conclusions that plaintiff and defendants are not, and never have been, co-tenants as to the ground in controversy. For this reason it is unnecessary to discuss or determine the question whether joint tenants or tenants in common should adverse the proceedings for patent instituted by one co-tenant in his own name alone.

The deed on which defendants rely is further challenged upon the theory that it is wholly lacking in the two essential elements of consideration and delivery. In view of certain facts bearing upon these subjects that were established by uncontroverted testimony, and certain other facts shown by a strong preponderance of evidence, it may be that this challenge is well taken, especially in so far as it relates to the subject of delivery; but, having decided the case on another ground, we shall not prolong the opinion by passing upon the questions thus raised.

Judgment reversed.