Opinion
March 6, 1911.
Error to District Court, City and County of Denver; Carlton M. Bills, Judge.
Action by Johanna Alexander against Moses Hallett and another. Judgment for plaintiff, and defendant named brings error. Affirmed.
Charles W. Waterman and W. C. Kingsley, for plaintiff in error.
William Young, for defendant in error.
September 4, 1906, Johanna Alexander brought suit in the court below to partition certain lots in the city of Denver, claiming that she was the owner in fee of an undivided one-half interest in the premises by virtue of a sheriff's deed made to and held by her, purporting to convey the interest of John J. Reithman therein. To this action Moses Hallett and Marie G. Wagner were made parties defendant; the allegation **492 being that Mrs. Wagner owned in fee an undivided one-half interest, subject to a mortgage held by Hallett. The pleadings present, and the proof shows, that one Magdalena Reithman died intestate January 17, 1905, leaving as her sole heirs *39 at law her husband, John J. Reithman, and certain children, one of whom was her daughter, Marie G. Wagner; that some time prior thereto Mrs. Reithman had become the owner of the lots in question, and at the time of her death the recorded title thereto was in her; that at the time her husband, John J. Reithman, was a judgment debtor of Johanna Alexander to the amount of over $26,000. March 23, 1905, Mrs. Alexander caused an execution to be issued upon the judgment and a levy thereunder made upon John J. Reithman's interest in and to the lots in question. April 17, 1905, Reithman's interest, if any, in the property, was sold under the execution to Mrs. Alexander, and thereafter in due time she received a sheriff's deed therefor, which was duly recorded. August 17, 1905, a quitclaim deed, bearing date December 16, 1904, from Magdalena Reithman to Marie G. Wagner, in consideration of $1, purporting to convey the property in question, was filed for record, together with a mortgage deed bearing date March 16, 1905, from Marie G. Wagner to Moses Hallett, conveying the same property to secure the payment to Hallett of Mrs. Wagner's note in the sum of $3,422. At the time of the levy of the execution and the sale thereunder, Mrs. Alexander had no notice or knowledge of the deed to Mrs. Wagner or the mortgage to Judge Hallett, nor did she acquire such knowledge, either actual or constructive, until the filing of the last-named instruments. On and prior to December 6, 1904, Mrs. Reithman was indebted to Judge Hallett upon three promissory notes for money loaned in the aggregate sum of $1,900, and, being in poor health, conveyed the lots to Mrs. Wagner `for the purpose of having her secure the said indebtedness' by a mortgage upon the lots to Judge Hallett. March 6, 1905, Mrs. Wagner received from Judge Hallett $1,100 for the *40 purpose of paying the general taxes on said lots for the year 1903, and redeeming the premises from certain tax sales and assessments for public improvements, and thereupon executed and delivered to Judge Hallett her promissory note for the sum of $3,422, being the amount of such advancements and the indebtedness of Mrs. Reithman. At the same time, to secure the payment thereof, she executed and delivered the mortgage deed hereinbefore mentioned. In November, 1906, Judge Hallett redeemed the property from a sale for the taxes of 1904, and paid the taxes thereon for 1905, the two sums aggregating about $264. The evidence further shows that administration was had upon the estate of Magdalena Reithman; that June 19, 1905, the administrator petitioned the county court for an order to sell the lots in question to pay the debts of the deceased; that some time subsequent to August 21, 1905, plaintiff in error appeared, in the administration proceedings, and filed an answer to the petition to sell the lots, specifically alleging that the lots were not the property of Magdalena Reithman at the time of her death, and were no part of her estate, but were the property of Marie G. Wagner, subject to the mortgage of Hallett, and thereupon secured the annulment of the order to show cause. The lots were vacant and unimproved, and not in the actual possession of any one. They were assessed as the property of Magdalena Reithman for taxation to, and including, the year 1905. Trial was had, and resulted in a judgment in favor of Mrs. Alexander. The premises, not being subject to partition without loss, were thereafter sold under the direction of the court, and the net proceeds ordered distributed, one half to Mrs. Alexander and the other half to Judge Hallett as the mortgagee of the interest of Mrs. Wagner. The sum decreed to *41 Judge Hallett being insufficient to liquidate the indebtedness to him, he appealed to this court.
1. Mrs. Alexander has interposed a motion to dismiss the appeal because the judgment rendered was not of that class from which an appeal will lie. The motion must be sustained. No money judgment was rendered, nor does the judgment relate to a franchise or freehold. Section 388, Mills' Ann. Code. Whether Judge Hallett has a lien by virtue of his mortgage or the moneys advanced or paid for taxes superior to the interest in the premises claimed by Mrs. Alexander are the sole questions for determination, and in no sense involve a franchise or freehold. Murto v. King, 28 Colo. 357, 359, 64 Pac. 184; Scheeren v. Stramann, 24 Colo. 111, 48 Pac. 966; Cravens v. Lee, 24 Colo. 225, 49 Pac. 424. This court, therefore, has no jurisdiction to entertain the appeal; but, as Mrs. Alexander has entered her appearance and filed briefs herein within the time a writ of error might have been sued out, and scire facias served, the cause will be entered as pending upon error by virtue of section 388a, Mills' Ann. Code, and we will proceed to determine the controversy.
2. One contention of plaintiff in error is that Mrs. Alexander acquired no interest in the premises superior to the lien created by the Hallett mortgage, because Magdalena Reithman had previously conveyed all her title in the lots to Marie G. Wagner, and no interest therein descended to John J. Reithman, notwithstanding such deed to Wagner and mortgage to Hallett were not recorded until long after the death of Mrs. Reithman, and subsequent to the levy of the execution and sale thereunder upon which the sheriff's deed was based. By virtue of section 694, Rev. St. 1908 (section 446, Mills' Ann. St.), deeds, conveyances, or agreements in writing **493 affecting title to real estate, or any *42 interest therein, must recorded in the office of the recorder, wherein such real estate is situated, before they can `take effect as to any subsequent bona fide purchasers and incumbrancers by mortgage, judgment or otherwise, not having notice thereof.' By numerous decisions of this court, it is established that one who takes property, voluntarily to by judicial procedure, in payment of a pre-existing debt, is a purchaser for a valuable consideration, and that an unrecorded deed does not take effect as against an execution creditor, without notice.Knox v. McFarran, 4 Colo. 586, 596; McMurtrie v. Riddell, 9 Colo. 497, 13 Pac. 181; Jerome v. Carbonate N. Bk., etc., 22 Colo. 37, 40, 43 Pac. 215; West. Chem. Mfg. Co. v. McCaffrey, 47 Colo. 397, 107 Pac. 1081, 135 Am. St. Rep. 234. Such is conceded to be the law, but it is argued that the rule does not apply where the judgment creditor, as in the case at bar, claims the benefit of the provisions of the statute under a levy upon the alleged interest of an heir, but who, in fact, because of an unrecorded deed of his ancestor, had no interest in the property levied upon. As the heir, taking by descent, is not within the class excepted by the statute from the effect of an unrecorded deed or conveyance, it necessarily follows that such unrecorded instrument of the ancestor binds the heir to the same extent, as it would if recorded before the death of the maker thereof. This is necessarily true, because by the common law the priority of liens upon real estate is measured by the date of their acquisition; the first in order of time standing first in order of rank. It is equally true that a deed duly executed and delivered is sufficient as between the parties to it to convey the whole title of the grantor to the grantee, though the instrument be not recorded. So in the case at bar, after the execution and delivery of the Wagner deed, *43 Mrs. Reithman actually retained no interest in the premises which she could by right convey to any person, yet it is firmly established that if she had thereafter made a deed of conveyance of the premises in controversy to a bona fide purchaser, without notice of the Wagner deed, or, if a like judgment creditor, had, by judicial procedure, received a deed for her interest therein, such person would have taken an absolute fee. The reason of the rule is that by virtue of the statute the unrecorded deed, under such circumstances, has no force or effect. As to bona fide purchasers or incumbrancers without notice, an unrecorded deed, though binding upon the grantor, his heirs, and devisees, is a nullity. `As to them the person who appears of record to be the owner is to be taken as the true and actual owner, and his apparent seisin is not divested or affected by any unknown and unrecorded deed that he may have made.'Earle v. Fiske, 103 Mass. 491, 492. The rights acquired by a bona fide purchaser of real estate without notice of an unrecorded deed are not measured by the actual interest of the seller in the land, but rather by his apparent interest. Western Chem. Mfg. Co. v. McCaffrey, supra.
But it is asserted that the title of an heir to property standing upon the record in the name of his ancestor is not apparent. If the statute of descent required registration to be made, either of the fact of death or descent, before the title of the ancestor vested in the heir, the argument would have force. The law, however, makes no such requirement. On the contrary, it expressly declares that the title of real estate of one dying intestate vests immediately in the heir upon the death of the ancestor, subject, of course, under certain circumstances to be divested for the payment *44 of the debts of the deceased. Section 7040, Rev. St. When Mrs. Alexander found the record title in Magdalena Reithman, and knowing that John J. Reithman was the latter's surviving husband, which knowledge she might acquire in any way, and knowing the law of descent, which she is conclusively presumed to know, she knew from the record that an undivided one-half interest at least in the premises was vested in John J. Reithman.
In giving the principal reasons assigned supporting the rule that where the grantor of real estate dies, and the deed is not recorded, a subsequent purchaser from the heir for a valuable consideration, and without notice of the unrecorded deed, is protected to the same extent as though he had purchased from the ancestor under similar circumstances, the author of Wade on the Law of Notice, § 218, says: `The heir stands in the shoes of his ancestor. The title to the real estate descends to him immediately on the death of the ancestor. When the purchaser ascertains who is the sole heir, he would ordinarily be willing to treat with him, much as he would have treated with the ancestor in his lifetime. It is true that the heir could not hold the property as against his ancestor's grantee whose deed was unregistered. In this respect he is in neither a better nor a worse condition than his ancestor while living. If the real estate of which one dies apparently seised is to remain forever subject to unrecorded instruments affecting the title, the benefit to be derived from the registry laws is utterly lost as soon as the title is cast by descent. If one hold a deed to land which is unregistered at the death of his grantor, unless subsequent purchasers from the heir are protected the same as subsequent purchasers from the *45 ancestor, it need only be registered, in order to protect the grantee's title. It is said that it was never intended by any of the recording acts that the death of a grantor should be allowed to create a break in the chain of title, as it appeared of record and protect the grantee **494 whose deed was unregistered against subsequent purchasers without notice. The only question is whether a contrary intention is sufficiently expressed in the statute.' InPowers v. McFerran, 2 Serg. R. (Pa.) 44, it is said that `the purchaser for a valuable consideration, seeing no deed on record (from the ancestor) had a right, under sanction of the recording act, to take for granted that the whole estate had descended' (to the heir). In Kennedy v. Northup, 15 Ill. 148, it is said: `Where a deed is not recorded, the title is apparently still in the grantor, and the law authorizes purchasers who are ignorant of the conveyances to deal with him as the real owner. In case of his death the heir becomes the apparent owner of the legal title, and it is equally important and equally as just that the public may be allowed to deal with him as with the original grantor, if living.'
It is claimed that the contest here is not between claimants from a common source of title, and that the statute operates, and is intended to operate, only in such cases. We are persuaded that the statute applies only as between claimants from a common source of title, but cannot agree with counsel that this case is not of that character. On the contrary, the common source of title is Magdalena Reithman. Mrs. Wagner's alleged title came from her by virtue of the deed; and Judge Hallett's right to the interest claimed by Mrs. Alexander must find support, if at all, in the same source. John J. Reithman's apparent title likewise came from Mrs. Reithman, *46 not by conveyance it is true, but by operation of law, and, as the record stood, immediately preceding the levy of the execution he possessed apparently the only title as to an undivided one-half interest in and to the premises. The unrecorded deed is by the statute made noneffective as against a bona fide purchaser, who purchases without notice thereof from any one who in reality would possess the absolute title if it were not for the unrecorded instrument. Mrs. Alexander is not an heir of Magdalena or John J. Reithman, and does not claim by inheritance from either. She acquired and holds her interest as a bona fide purchaser without notice of the Wagner deed or the Hallett mortgage from John J. Reithman who appeared to have, and would have had, if it were not for the unrecorded deed, the real title. The evident purpose of the recording statute is to provide an effectual remedy against the loss accruing to subsequent purchasers of real estate arising from the existence of secret or concealed conveyances thereof unknown to the subsequent purchaser. The remedy is made effectual by requiring every deed to be recorded before it can be of any effect as against such purchasers. If such be the purpose of the act, it is certain that all those who are liable to suffer by reason of concealed conveyances are intended to be protected, and therefore come within its provisions. The liability to loss is not confined to the immediate purchasers from the same grantor. It may extend to remote purchasers. To illustrate: Suppose A., invested with absolute title, conveys to B., who fails to record, and subsequently to C., who records, the latter having knowledge of the prior conveyance to B. As between B. and C. the latter takes no title. But suppose C. should convey to D., a bona fide purchaser without notice of the prior unrecorded deed to B. D. records his conveyance, and *47 would unquestionably take absolute title as it apparently existed in A. So in the case at bar. Magdalena Reithman, invested with absolute title, conveyed to Wagner, who failed to record. Magdalena Reithman dying intestate, her absolute title apparently vested in her heirs, who are not protected because not coming within the exceptions of the statute. John J. Reithman, one of those heirs, nevertheless, conveyed an undivided one-half interest in the premises to Alexander, who comes within the statutory exceptions. Alexander is certainly a bona fide purchaser of the real estate from one apparently having the right to convey, and in whom, were it not for the unrecorded deed, the title to an undivided one-half interest of the estate would have vested. Under such circumstances, Alexander clearly comes within the words and the spirit of the act, and the unrecorded deed as to her has no effect. If the unrecorded deed to Wagner be adjudged paramount to the title acquired by the levy of the execution and sale thereunder, then the statute declaring that unrecorded deeds shall have no effect as to subsequent bona fide purchasers without notice is nullified, and an instrument which the statute declares of no effect is made effective. Such appears to be the law announced in the best-considered cases, and established by the weight of authority. In 24 Amer. Eng. Encyc. of Law, p. 121, we find the following: `A purchaser from the heir of a grantor in a prior unrecorded conveyance is as much entitled to protection as if he had purchased directly from such grantor. A contrary doctrine was upheld in a few earlier cases, but these decisions were based on a clear misconception of the purpose of the recording acts.' And the author of Wade on the Law of Notice, § 222, after reviewing the conflicting cases, says: `The weight of authority *48 seems to be in favor of extending the same protection to bona fide purchasers from the heirs of a deceased grantor, where the prior deed is unregistered, as is afforded to subsequent purchasers from the grantor himself. This view seems also to be supported by the better reason. Following the record as a guide, the title seems to be in the heir at the moment of the ancestor's death. It is true that as against his ancestor's grantee he has no title at all; but the same could be said with **495 equal truth of the grantor himself where the subsequent deed is from him.' In Whittemore v. Bean, 6 N. H. 47, 49, it is said: `An unrecorded deed of land is valid against the grantor and against his heir. But if the grantor or his heir afterwards for a valuable consideration convey the land to another purchaser, who has no notice of the unrecorded deed, the last conveyance will prevail against the first.' In Bowen v. Prout, 52 Ill. 354, it is held that a subsequent purchaser for a valuable consideration from an heir without notice of a prior unrecorded conveyance from the ancestor will be protected in his title as against such prior conveyance. In Memphis Land Timber Co. v. Ford, 58 Fed. 452, 455, 7 C. C. A. 304, 307, after stating that `the argument is that the purchaser from the heir, or from the receiver of the estate of a deceased grantor, takes only the title or interest of which the deceased died seised,' it is said: `This argument is more specious than sound. Many years ago it met the approval of the Supreme Court of Kentucky in Ralls v. Graham, 4 T. B. Mon. (Ky.) 120, and Hancock v. Beverly, 6 B. Mon. (Ky.) 531, and was adopted by a divided court inHill v. Meeker, 24 Conn. 211; but the opinion of the dessenting judge in the case last mentioned has since met with general approval. The argument *49 may by used with equal force to entirely annul the statute, and to show that the purchaser from the same grantor takes nothing by a subsequent deed, for it may be said that such a grantor can convey only the title or interest he has, and, as he has none after making his first deed, he can convey nothing, and the subsequent purchaser can take nothing. This argument loses sight of the policy and purpose of the registry statutes. It is the purpose of those statutes to make the title that appears of record-the apparent title-superior, in the hands of an innocent purchaser for value, to the real title that is not of record. The grantor who has conveyed away his land by an unrecorded deed, it is true, has no title or interest remaining in himself; and yet his deed to an innocent purchaser for value avoids by virtue of the registry statute the prior conveyance, and vests the title in the subsequent purchaser. * * * To compel every purchaser from an estate to take notice of unrecorded deeds and instruments, and the private and secret transactions of the deceased in the lands which he appears by the records to own when he dies, would greatly depreciate the value of every estate in the land, and benefit none but the negligent and careless. The benefits of the statute are not by its terms limited to a subsequent purchaser from the same grantor; and such a limitation would in our opinion deprive it of much of the efficacy intended to be given to it by the Legislature. Undoubtedly, the term `subsequent purchaser,' in this statute, does not include a purchaser from an apparent stranger to the title of the grantor in the unrecorded deed; but it does include, not only the purchaser from the grantor himself, but every subsequent purchaser from one who appears from the records to be the owner of, or to be authorized to convey, the title and interest that the grantor had when he made the unrecorded deed. This *50 view is sustained in well-reasoned opinions and by the weight of authority.' Youngblood v. Vastine, 46 Mo. 239, 242, 2 Am. Rep. 509, cited with approval in the last-named case as one of the well-reasoned opinions supporting the doctrine there announced, reviews many of the cases, overrules, so far as it announces a contrary doctrine, McCamant v. Patterson, 39 Mo. 100, 110, cited by plaintiff in error, and expressly holds that the heirs of a grantor in an unrecorded deed of land at his death become the apparent owners of the legal title, and a duly recorded conveyance by them of the same estate to an innocent purchaser will carry the title as against the first grantee in like manner as if made by the ancestor. To the same effect areBurns v. Berry, 42 Mich. 176, 179, 3 N. W. 924; Lyon v. Gleason, 40 Minn. 434, 435, 42 N. W. 286, and many other well-reasoned cases. Moreover, the statutes of Illinois, construed and applied in Kennedy v. Northup, supra, are practically identical with our own recording act, and the conclusions arrived at in that case, which is in conformity with the views here expressed, were upon a review and criticism not only of the cases supporting the doctrine there adopted, but likewise those of Kentucky announcing the contrary rule. In adopting substantially the Illinois statute, the Legislature of this state is presumed to have intended that such statute shall by the courts of this state receive the same construction given it by the courts of that state previous to its adoption in this. Bradbury v. Davis, 5 Colo. 265, 269; Houlahan v. Finance Con. M. Co., 34 Colo. 365, 368, 82 Pac. 484; City Council v. Hanley, 19 Colo. App. 390, 392, 75 Pac. 600.
3. It is further contended that plaintiff in error as a creditor of Mrs. Reithman should be reimbursed out of the proceeds of the sale of the real estate of which she died apparently seised, to the extent, at *51 least, of his claim against her estate. Mrs. Reithman at the time of the execution and delivery of the Wagner deed, and likewise at the time of her death, was indebted to Judge Hallett, and, if the latter had resorted to the procedure provided by law for that purpose, he could unquestionably have subjected her entire estate, if necessary, to the payment of his debt. This he failed to do, but, on the contrary, appeared in the administration proceedings on her estate and prevented the proposed sale of these particular lots for the purpose of paying her debts. His claim against the estate was unsecured, and had no preference over other unsecured claims. Moreover, Judge Hallett, having prevented a **496 sale of the property by the administrator for the purpose of paying all the debts of the deceased, cannot, after that estate is fully administered upon, successfully maintain that he is either legally or equitably entitled to have a lien for such debt impressed upon the moiety of the estate acquired by a bona fide purchaser without notice.
4. Another contention is that as Marie G Wagner March 6, 1905, redeemed the lots in question from tax sales, with money advanced by plaintiff in error upon her request, and for that specific purpose, the payments inured to the benefit of the entire estate, and Judge Hallett should be reimbursed to that extent. The contention is not sound. Whatever in relation thereto may be the rights and equities as between Mrs. Wagner and Judge Hallett on the one side, and John J. Reithman on the other, it must be remembered that Mrs. Alexander acquired John J. Reithman's interest in the premises as it appeared on March 23, 1905, the date of the levy of her execution.
5. Plaintiff in error redeemed the lots from a tax sale for the taxes of 1904, and paid the taxes on *52 the entire property for the year 1905. These expenditures were made after Mrs. Alexander acquired title of an undivided one-half interest in the premises, and subsequent to the institution of this suit. As Wagner and Alexander were at that time owners of a common estate, each holding an undivided one-half interest therein, with the estate of the former subject to the Hallett mortgage, it is argued that Judge Hallett is entitled to be reimbursed to the extent of one-half of such expenditures. The taxes were assessed upon the property as an entirety, and the sale was so made, and not upon or for an undivided interest. If it were not for certain statutory provisions, Judge Hallett would doubtless be entitled to reimbursement as claimed. It seems, however, that by sections 3872, 3926u, 3926v, 3926w, Mills' Ann. St. Rev. Supp., any person who has or claims an interest in or a lien upon any undivided estate, or interest in any piece of land assessed or sold for taxes, though assessed or sold as an entirety, may, nevertheless, make payment of taxes on or redeem such undivided estate or interest by paying into the treasury his proportionate part of the amount of taxes due, or his proportionate part of the sum required to redeem the whole. Under these statutory provisions, Judge Hallett was not under compulsion to pay the taxes or redeem the entire property from the sale for the nonpayment thereof in order to protect his own interest. The payment of the taxes and the redemption from the sale thereof, as to the interest of Mrs. Alexander, were voluntary acts upon his part. The doctrine contended for by plaintiff in error is not applicable. It only applies where there is an apparent necessity to make payments in order to protect one's own interest. The apparent necessity did not exist in this case. 27 Amer. Eng. Encyc. of Law, p. 750. Neither was the payment made upon request, nor was there a subsequent *53 promise to repay. Nor do the facts of the case bring it within the rule sometimes applied, that, where expenditures are made in good faith under a mistaken view of one's rights, recoupment will be allowed to the extent that such payments benefit another primarily obligated to pay. The facts were undisputed, and the law determines the rights of the parties.Mitchell v. Danielson, 38 Colo. 63, 64, 89 Pac. 823, is where one Hallack, holding a tax deed upon real estate, conveyed the premises to Lynch, who conveyed to Danielson, which deeds were duly recorded. Thereafter Hallack made a deed purporting to convey the same premises to Lambert, and the latter thereupon paid the taxes assessed upon said premises, and it is held that at the time Lambert paid such taxes Danielson was the owner in fee, and in possession of the lot; that Lambert had no interest whatever therein and in making the payment was not acting at the request of Danielson, and therefore neither he nor his assignee could recover. This seems to be particularly applicable to the facts of this case. At the time plaintiff in error made the payments herein, the title to an undivided half interest in the premises had fully vested in Mrs. Alexander. A suit was then pending to segregate and set apart that particular interest. Mrs. Alexander made no request that such payments be made, nor did she subsequently promise to repay the same. Having ample power, under the law, to protect his own rights in the premises without going further, plaintiff in error cannot be permitted to impose an obligation upon defendant in error by his voluntary act in making the payments that primarily rested upon the latter. We are of the opinion that the judgment of the trial court is right, and it is therefore affirmed.
Judgment affirmed.
GABBERT, J., dissenting. GARRIGUES, J., not participating.