On the situation presented, of which the foregoing recitals constitute a substantial statement, the learned trial judge directed the jury to return a verdict for the defendant. Having the printed record before us, with opportunity for comparison, study, and reflection, supplemented by investigation, we are led to the conclusion that the facts and testimony set forth therein are sufficient to require a submission of the case to a jury. The question presented to a trial court on a motion to direct a verdict or which presents itself in the consideration of such action, on its own motion, is whether, admitting the truth of all of the evidence which has been given in favor of the party against whom the action is contemplated together with such conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked or on its own motion considers the direction of a verdict, all facts and inferences against or in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such action is leveled, Baker v. Nichols ShepardCo., 10 Okla. 685, 65 P. 100; Richardson et al. v. Fellner,9 Okla. 513, 60 P. 270; 6 Encyclopedia of Pleading Practice, p. 693. The same rules obtain in the direction of a verdict as obtain on a demurrer to the evidence *Page 55 6 Encyclopedia of Pleading Practice, p. 692. And in the case of Conklin v. Yates et al., 16 Okla. 266, 83 P. 910, the Supreme Court of the Territory of Oklahoma held that upon a demurrer to the evidence the court must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer. See, also, Edmisson v. Drumm-FlatoCompany, 13 Okla. 440, 73 P. 958, in which case Chief Justice Burford, on stating the rule which we have just noted, made a general collation of authorities to sustain it. There is probably no difference as to the rule. The conflict in the case at bar arises out of our inability to concur in the conclusion to which the trial court arrived in considering the evidence. In coming to this conclusion, of course, we do not mean to express any opinion upon the truth or falsity of the evidence produced, nor to make any intimation upon which an argument could be predicated that a jury should accept the same as true. We merely mean to assert as we have endeavored to state that on directing a verdict the party against whom it is leveled is entitled to have his evidence considered for the purpose as true and uncontradicted. This conclusion on our part necessarily carries with it a finding that on some one or all of the positions asserted by plaintiff, if true, she is entitled to recover, and we will briefly examine them.
First, assuming, as the testimony tends to show, a deed was executed by Scott to plaintiff's deceased husband, and the same was recorded, then the fact that the records were destroyed in no wise affects the notice which defendant was compelled to take had the records not been destroyed The party taking his deed to the register of deeds' office and having it recorded did all that was required of him.
Mr. Wade in his work on the Law of Notice ([2d Ed.] section 157) says:
"It has also been decided that, where the deed has been once recorded, a subsequent burning or other destruction of the records will not render the same ineffectual as notice to subsequent purchasers." *Page 56
See, also, Geer et al. v. Missouri Lumber Mining Company etal., 134 Mo. 85, 34 S.W. 1099, 56 Am. St. Rep. 489; Ashburn v.Spivey, 112 Ga. 474, 37 S.E. 703; Alvis v. Morrison, 63 Ill. 181, 14 Am. Rep. 117.
The force of this rule was broken in the mind of the trial court by reason of the fact that the plaintiff had permitted her claim of interest in and to the land to lie unasserted and without record from the date of the destruction of the courthouse to the date of the bringing of this action, thereby, it was assumed, estopping herself from asserting her claim to the land in the face of a purchaser in good faith for value, whose title was predicated upon an apparently clear record. We question much whether the defendant in this cause was entitled, as the record is presented, to have interposed in his behalf against the assertions of plaintiff the doctrine of an equitable estoppel. Estoppel is an affirmative defense to be specially and specifically pleaded. Such is the holding in the cases of Holt v. Holt, decided this session, 23 Okla. 639;Deming Investment Co. v. Shawnee Insurance Co., 16 Okla. 1,83 P. 918, 4 L. R. A. (N. S.) 607; Tonkawa Milling Co. v. Townof Tonkawa et al., 15 Okla. 672, 83 P. 915; Troyer et al. v.Dyar, Commissioner of Drainage, 102 Ind. 396, 1 N.E. 728;Sharon v. Minnock, 6 Nev. 677 So far as the record discloses, the defendant Flesner would not have been in any particular deterred from taking identically the same course which he did had he had full and complete knowledge of the claims of plaintiff and knew that she intended asserting them. If not, then it was incumbent upon him to assert it, and to aver that the failure of plaintiff to do some act or perform some duty had caused him to act differently than he otherwise would. We do not consider or pass upon the question of plaintiff's failure constituting an estoppel, nor any of its effects should it ultimately be found. We do not regard it as being in the case. On another trial of this cause defendant, if he elects and can do so, should be permitted to amend his answer, and set up the plea of estoppel upon which to predicate proof of the same. If the deed was *Page 57 not recorded, or the same thing, if plaintiff is unable to show it was to the satisfaction of a jury, then the question of notice will be involved.
Section 12, c. 16, par. 888, under the title "Conveyances of Real Estate," Wilson's Rev. Ann. St. 1903, provides:
"Except as hereinafter provided, no acknowledgment or recording shall be necessary to the validity of any deed, mortgage or contract relating to real estate as between the parties thereto; but no deed, mortgage, contract, bond, lease, or other instrument relating to real estate, other than a lease for a period not exceeding one year and accompanied by actual possession, shall be valid as against third persons unless acknowledged and recorded as herein provided; except, actual notice to such third persons shall be equivalent to due acknowledgment and recording."
Our statutes defining notice are found in chapter 28, entitled, "Definitions and Provisions," Wilson's Rev. Ann. St. 1903, §§ 9-13 inclusive, which are as follows:
"Sec. 9. Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another, even through the forms of technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.
"Sec. 10. Notice is either actual or constructive.
"Sec. 11. Actual notice consists in express information of a fact.
"Sec. 12. Constructive notice is notice imputed by the law to a person not having actual notice.
"Sec. 13. Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself."
The question which then presents itself is: Was the information which plaintiff contends was given defendant at the time of his visit to the Cooper home in January or February, 1900, given, and if so was it either actual or constructive notice? It will be observed that section 13, supra, charges every person with constructive notice of the fact itself when, having actual notice of *Page 58 circumstances sufficient to put a prudent man upon inquiry, he omits to make such inquiry with reasonable diligence.
In the case of Williamson v. Brown, 15 N.Y. 354, the Court of Appeals of New York dealing with this question, speaking through Justice Selden, said:
"Notice is of two kinds — actual and constructive. Actual notice embraces all degrees and grades of evidence from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion. Constructive notice, on the other hand, is a legal inference from established facts, and, like other legal presumptions, does not admit of dispute. 'Constructive notice,' says Judge Story, 'is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted.' Story's Eq. Juris. § 399. A recorded deed is an instance of constructive notice. It is of no consequence whether the second purchaser has actual notice of the prior deed or not. He is bound to take, and is presumed to have, the requisite notice. So, too, notice to an agent is constructive notice to the principal; and it would not in the least avail the latter to show that the agent had neglected to communicate the fact. In such cases the law imputes notice to the party whether he has it or not. Legal or implied notice, therefore, is the same as constructive notice, and cannot be controverted by proof."
This question is also elaborately treated by the Supreme Court of Wisconsin in the case of Brinkman v. Jones,44 Wis. 498, wherein the court held in the syllabus:
"One who purchases land with knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith if he neglects to make such inquiry, and is chargeable with the 'actual notice' he would have received."
See, also, Hooser v. Hunt, 65 Wis. 71, 26 N.W. 442, and Popev. Nichols, 61 Kan. 230, 59 P. 257.
The statutes of California on this question are very similar to our own. They will be found embraced in section 18 to 19 *Page 59 of the Civil Code. The case of Prouty v. Devin, et al.,118 Cal. 258, 50 P. 380, was one somewhat similar to the one at bar, in which the court said:
"Section 1217 of the Civil Code provides that an unrecorded instrument is valid as between the parties thereto and those who have notice thereof. Notice is actual and constructive. Actual notice is that which consists in express information of a fact, and constructive notice is that which is imputed by law. Civ. Code, § 18. 'Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself in all cases in which by prosecuting such inquiry he might have learned such fact' (Civ. Code, § 19), * * * for the general doctrine, as well as the express provision of section 19 of our Civil Code, is that whatever puts a party on inquiry amounts in judgment of law to constructive notice, provided the inquiry becomes a duty, and, if followed, would lead to the knowledge of the requisite facts by ordinary diligence and understanding."
After reciting the evidence in the case, the court concluded the opinion by saying:
"The question for determination is whether there was actual notice upon the part of Bates of circumstances sufficient to put him as a prudent man upon inquiry. If so, then in law he is chargeable with constructive notice and knowledge of the fact of this pre-existing mortgage."
Mr. Wade in his work on the Law of Notice, dealing with this question (sections 3, 4, and 5), says:
"Actual notice has been defined by declaring that it exists 'when knowledge is actually brought home to the party to be affected by it.' This excludes all notice which does not amount in fact, as well as theory, to actual knowledge. There can be no doubt that this definition is too narrow. * * * The courts have accordingly refused to confine actual notice within the narrow limits of the definition quoted above. Their departure from the rule that renders actual notice and actual knowledge synonymous terms, is perhaps most conspicuous in cases arising under the registry laws, where, in order to give precedence to a prior unrecorded instrument over a subsequent one affecting the same land, which has been duly recorded, it is necessary to prove that the subsequent purchaser had actual notice of the prior unregistered *Page 60 instrument. * * * There are two classes of actual notice which for convenience may be designated as (1) express, which includes all knowledge or information coming to the party to be charged of a degree above that which depends upon collateral inference, or which imposes upon him the further duty of inquiry: and (2) implied, which imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, though he does not use them. In others words, where he chooses to remain voluntarily ignorant of the fact, or is grossly negligent in not following up the inquiry which the known facts suggest."
The author in section 8, further discusses the notice which he terms "implied," by stating that it does not include either positive knowledge or information so direct as to necessarily carry conviction to the mind of the person notified, and neither does it belong to that class which depends upon legal presumption, but that it is substantial evidence, from which the jury after estimating its value may infer notice. He then says that it differs from constructive notice with which it is frequently confounded and which it greatly resembles with respect to the character of the inference upon which it rests; constructive notice being the creature of positive law, or resting upon strictly legal inference, while implied notice arises from inference of fact. The language of our statute it will be observed in this connection is that the party having actual notice of circumstances, etc., is deemed to have constructive notice of the fact itself; so that it seems to us the constructive notice of our statute and the implied notice referred to by Mr. Wade are almost, if not exactly, the same in legal effect.
The issues presented are all controverted questions of fact, and as such should have been submitted to the jury for its determination. The plaintiff bears the burden of establishing the conveyance and title under which she claims, and that the defendant, had either actual or constructive notice thereof. There may be a question of plaintiff's laches involved, and, if insisted on, it also, along with the other questions, should be left to a jury. *Page 61
The judgment of the lower court is accordingly reversed, and the cause remanded for a new trial.
All the Justices concur.