Victor Land Co. v. Drake , 63 Or. 210 ( 1912 )

Mr. Justice Burnett

delivered the opinion of the court.

• It being conceded by the pleadings that the defendant’s deed from Carter was not recorded until the day after the recording of plaintiff’s deed from the same grantor, the case hinges upon the question of whether or not the plaintiff had actual notice of the former deed from Carter to the defendant. Although its deed was first recorded, yet, if the plaintiff had actual notice of the prior conveyance from the common grantor to the defendant, the deed from Carter to the Victor Land Company would convey no title. Musgrove v. Bonser, 5 Or. 313 (20 Am. Rep. 737). The.doctrine of this case has been approved by this court in Manaudas v. Mann, 14 Or. 450 (13 Pac. 449); Jennings v. Kiernan, 35 Or. 349 (55 Pac. 443: 56 Pac. 72); Trust Co. v. Loewenberg, 38 Or. 159, 168 (62 Pac. 647); William v. First N. B., 48 Or. 571 (87 Pac. 890). A careful perusal of the testimony reported in the record convinces us that, by a strong preponderance, the defendant has established that the plaintiff had actual knowledge of the deed from Carter to the defendant long prior to the taking of conveyance from Carter to'itself. This leads to the conclusion that the circuit court correctly decided the case, especially as the judge there had before him the witnesses who testified, and could estimate more accurately than we can the merits of their narratives.

The decree of the court is in all things affirmed.

Affirmed.