Sutorius v. Mayor

ON MOTION FOR REHEARING. Respondents contend that the opinion conflicts with Sec. 3427, R.S. 1939 (providing that certain recorded instruments shall "impart notice to all persons of the contents thereof and all subsequent purchasers and mortgagees shall be deemed, in law and equity, to purchase with notice"), and further conflicts with cases holding that the effect of said statute is that purchasers "are charged with the same knowledge of recorded instruments as they would be of the contents of unrecorded deeds of which they have actual knowledge." Respondents insist that the widow as a devisee under the will of her husband and by reason of the statute, supra, had constructive knowledge of the recorded deeds from her husband to the straw party and back to husband and wife and, having such notice of the contents of the deeds, elected to take under the will. Respondents say that, for the purpose of determining whether the widow elected to take under the will, she must be considered "as having full knowledge of the fact that she was a grantee in the deed" under which she and appellants now claim.

We found that the widow had no actual knowledge of the existence of the deed to her and her husband, nor of her rights thereunder at the time she accepted benefits under the will of her husband; that promptly upon discovery of the true facts and upon learning of her legal rights, she renounced the will, claimed under the deed, and demanded an accounting by the estate; and that she then made the conveyance under which appellants claim. The record indicates, that at the time the widow demanded an accounting, her husband's estate had received more from the widow's real estate than the widow had received from the husband's estate, and there was no satisfactory proof of change of position or prejudice to respondents prior to or by reason of the renunciation of the will.

[17] Respondents have sought relief in equity and insist that the widow waived her rights under the deed, elected to take under the will, and is now estopped to claim under the deed, and ask that her deed to appellants be set aside. We think the widow's constructive knowledge of the existence of the [70] deed, by reason of the statute, supra, was wholly insufficient to sustain the election contended for and, under the facts of this case, the widow could renounce the will and claim her own property upon discovery of the deed. The statute, supra, has no more application on the question of whether a binding election was made than the rule that "everyone is presumed to know the law," and to know his legal rights. Although one may have constructive knowledge of the record title of property with which he is dealing, yet, if while without actual knowledge of the true facts, he is deceived and defrauded by one upon whom he has the right, by reason of confidential relations, to rely, equity will grant relief. See, Scott v. Hill, 330 Mo. 490, 50 S.W.2d 110, 26 C.J. 1153, sec. 70. And so in this case, it is for a court of equity to determine whether a binding election was made under the facts of this case.

We think it clear from a mere statement of the general rules applicable to the type of election contended for by respondents, that the statute, supra, has no application.

"In order for acts of the party entitled to elect to have a binding effect as an election, they must be done with an understanding of the situation, and with the intent to make an election. Accordingly, acts done in ignorance of the existence of provisions of the will, or of the existence of a deed conveying to the beneficiary the same property devised to him by will, or in ignorance of, or under a misconception as to, the value of the estate or the legal rights of the party, or the legal effect of an election as such, or of other circumstances which would legitimately affect the decision, do not amount to a binding election, and will be discharged when the other parties affected thereby can be placed substantially in the same situation as if no election had been made." 69 C.J. 1117, sec. 2393.

"But a devisee's acceptance of the devise to him does not estop him from asserting his interests contrary to the will where such acceptance is made in ignorance of a material fact a knowledge of which is necessary to enable him to make an intelligent choice." 28 R.C.L. 329, sec. 317; Note, 21 American and English Ann. Cases, 556.

The rule is also stated as follows: "Where the election has been made in ignorance or under a mistake as to the real nature of the properties, or as to the nature of his own rights, such a mistake is regarded as one of fact rather than of law, and the election is not binding, and a court of equity will permit it to be revoked, unless the rights of third persons have intervened which would be interfered with by the revocation." Tolley v. Poteet, 62 W. Va. 231, 57 S.E. 811, 818, and cases cited.

The motion for rehearing is overruled. Bradley and VanOsdol, CC., concur.