N.D.C.C. § 47-19-46. [¶ 9] In Agricultural Credit Corp. v. State, 74 N.D. 71, 76-77, 20 N.W.2d 78, 80 (1945), citing McCoy v. Davis, 38 N.D. 328, 164 N.W. 951, 952 (1917), this Court said the predecessor to N.D.C.C. § 47-19-41: "clearly places judgments on (a) par with deeds and mortgages.
Thus, a judgment lien is valid as against an unrecorded conveyance of which the judgment creditor had no notice at the time the judgment was obtained. Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78 (1945); Ildvedsen v. First State Bank, 24 N.D. 227, 139 N.W. 105 (1912). One with actual knowledge of facts which would put a prudent person upon inquiry as to the claims of others in the property is deemed to have constructive notice of only those facts which an inquiry would have revealed.
Stone v. Bartsch, supra. One who has knowledge of the facts sufficient to put a prudent person upon inquiry with regard to the existence of an unrecorded deed, and fails to make such inquiry, cannot claim protection as a bona fide purchaser under the recording act. Shauer v. Alterton, 151 U.S. 607, 14 S.Ct. 442, 38 L.Ed. 286 (1894); Agriculture Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78 (1945); Doran v. Dazey, 5 N.D. 167, 64 N.W. 1023 (1895). On the date of the execution of the contract for deed between Mosser and Hall, 1 December 1948, Mossers had in their possession a copy of the unrecorded 1944 contract for deed through which Mossers were purchasing the property from Northwestern. A portion of the contract for deed, as previously set out, specifically reserved unto Northwestern "all minerals of any nature whatsoever including coal, iron, natural gas and oil."
A judgment lien makes every unrecorded conveyance by deed, mortgage or otherwise void as against the lien of a judgment lawfully obtained and docketed against the record owner. Agricultural Credit Corporation v. State, 74 N.D. 71, 20 N.W.2d 78. Where on the purchase of property, title is taken in the name of one person, while the consideration is paid by another, a trust results in favor of the payor.
See State ex rel. Heitkamp v. Family Life Servs., Inc., 2000 ND 166, ¶ 26, 616 N.W.2d 826. The open and notorious possession and occupancy of property by a person other than the grantor is sufficient to charge a purchaser with knowledge of the rights of the occupant. See Farm Credit Bank of St. Paul v. Martinson, 478 N.W.2d 810, 813 (N.D.1991); Agricultural Credit Corp. v. State, 74 N.D. 71, 78, 20 N.W.2d 78, 81 (1945). The court found the Chornuks' possession and occupancy was open and notorious.
N.D.C.C. § 1-01-25. See Diocese of Bismarck Trust v. Ramada Inc., 553 N.W.2d 760, 768 (N.D. 1996); Williston Co-op. Credit Union v. Fossum, 427 N.W.2d 804, 807 (N.D. 1988); Nygaard v. Robinson, 341 N.W.2d 349, 355-56 (N.D. 1983); Earth Builders, Inc. v. State, 325 N.W.2d 258, 260 (N.D. 1982); Burlington Northern., Inc. v. Hall, 322 N.W.2d 233, 242 (N.D. 1982); Hunt Trust Estate v. Kiker, 269 N.W.2d 377, 381 (N.D. 1978); Putnam v. Dickinson, 142 N.W.2d 111, 122 (N.D. 1966); City of Bismarck v. Casey, 77 N.D. 295, 43 N.W.2d 372, 379 (1950); Agricultural Credit [Corp. v. State, 74 N.D. 71], 20 N.W.2d [78,] 81-82 [(N.D. 1945)]; Pierce Twp. v. Ernie, 74 N.D. 16, 19 N.W.2d 755, 758 (1945); Harry E. McHugh, Inc. v. Haley, 61 N.D. 359, 237 N.W. 835, 838-39 (1931); McCoy [v. Davis, 38 N.D. 328], 164 N.W. [951,] 952 [(N.D. 1917)]; Ildvedsen [v. First State Bank of Bowbells, 24 N.D. 227], 139 N.W. [105,] 107 [(N.D. 1912)].Id.
Only open and notorious possession of land is sufficient to charge a mortgagee with knowledge of the rights of an occupant. Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78 (1945). See also Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137, 140 (1947) (Actual farming by a tenant is possession); Tarnovsky v. Security State Bank of Killdeer, 77 N.W.2d 828, 830-32 (N.D. 1956) (Intermittent occupancy by a tenant is "indefinite and inconclusive" evidence of possession, but continuous grazing, fencing, and farming is "actual possession").
The court recognized an exception to that general rule, holding that when possession by one other than the seller is consistent with the record title, the possession is presumed to be under the record title and is not notice of any outstanding unrecorded equities. See also Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797 (1953); Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78 (1945); Red River Valley Land Investment Co. v. Smith, 7 N.D. 236, 74 N.W. 194 (1898). In Ildvedsen, a husband and wife owned their home as tenants in common.
The issue of a purchaser's knowledge entails an examination of the circumstances in each case to determine if the information the purchaser received constituted notice or created a duty to inquire. See, e.g., Burlington Northern, Inc. v. Hall, 322 N.W.2d 233 (N.D. 1982); City of Bismarck v. Casey, 77 N.D. 295, 43 N.W.2d 372 (1950); Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78 (1945); Pierce Tp. of Barnes County v. Ernie, 74 N.D. 16, 19 N.W.2d 755 (1945); Doran v. Dazey, 5 N.D. 167, 64 N.W. 1023 (1895). In the present case, the trial court found that HNG, for its claim to title, had relied solely upon the third set of leases, the leases dated April 22, 1982, and acknowledged on April 28, 1982.
One who has actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular fact, and who omits to make such an inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself and is not protected as a purchaser in good faith. Burlington Northern, Inc. v. Hall, 322 N.W.2d 233, 242 (N.D. 1982); City of Bismarck v. Casey, 77 N.D. 295, 43 N.W.2d 372 (1950); Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78, 81 (1945). The trial court relied upon the following excerpt from 77 Am.Jur.2d Vendor and Purchaser § 647, as the authority for its judgment: