This is an action in ejectment. The case was tried before the court with a jury and a verdict was returned in favor of the defendant, whereupon judgment was entered accordingly. Plaintiff moved for a new trial and the motion was allowed and a new trial granted. The defendant appealed from the order. The evidence in the case is very brief, and contains but slight, if any, material conflict. The essential and undisputed facts material to be considered in this case are as follows, as disclosed by the record presented on this appeal:
The defendant, Ada F. Madden, purchased of the Caldwell Land Company, Ltd., a corporation, block 123 in the town of Caldwell, and paid the purchase price therefor in the sum of $220, and received a deed dated August 1, 1904, which was acknowledged September 2d the same year. This deed was not filed for record with the recorder of Canyon county (the county in which the land was situated) until the tenth day of November following. In the latter part of September, 1904, I. S. Froman purchased from the same company this same tract of land and paid therefor the sum of $200. He received a deed dated September' 28th, which was acknowledged on the thirtieth day of September, and filed for record in the recorder’s office on the eleventh day of October following.
At the time of these purchases by both the plaintiff and the defendant the land was vacant, uninclosed and unoccupied land, covered with greasewood and salt grass. Neither purchaser appears to have had anything more than *142a constructive possession of the property until the early part of November, at which time the defendant caused the block to be fenced at an expense of about $25. In the following July she had a small house erected-on the land at an expenditure of $230. She was absent from the state of Idaho from about the 3d of September, 1904, until the tenth day of June following, and did not learn of the sale of the property to the plaintiff until sometime in December of 1904, or January, 1905. The plaintiff testifies that the first time he ever learned that defendant claimed any right or title to this property was about two months after he bought it. This evidence is not disputed, either directly or by any circumstances. At the time of the plaintiff’s purchase and payment of the purchase price, defendant’s deed was unrecorded and remained so for about forty days thereafter. So far as the evidence discloses, the plaintiff was clearly a purchaser “in good faith and for a valuable consideration,” and his deed was placed of record prior to the recording of defendant’s deed.
The facts of this case seem to bring it clearly within the provisions of section 3001 of the Revised Statutes, which is as follows: “Every conveyance of real property other than a lease for a term not exceeding one yea ris void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded.” The plaintiff testifies that he caused the company to furnish him an abstract of title, for which he paid the sum of $10, and of course that abstract failed to show the conveyance to defendant, for the reason that the same had never been recorded, and the plaintiff testifies that he had no knowledge whatever of the sale or conveyance to the defendant and did not have for some two months after his purchase. This constitutes him clearly a purchaser “in good faith and for a valuable consideration,” and his conveyance having been first placed of record, gave him the title and a constructive possession with a right of immediate actual possession of the premises. (Gassen v. Hendrick, 74 Cal. 444, 16 Pac. 242; Foor*143man v. Wallace, 75 Cal. 552, 17 Pac. 680.) Of course, if the defendant should be able to show that the plaintiff had actual knowledge of the sale and conveyance to her prior to his receiving a deed and parting with the purchase price, she would be entitled to recover in this action, or if she could show that he had knowledge of such facts and circumstances as would have led to the discovery of her purchase and conveyance by a reasonably prudent man, she would be entitled to recover, but in order to recover, she must show that he was not a purchaser in good faith within the meaning of the statute.
Counsel for appellant argue that since respondent saw fit to commence an action in ejectment to recover the possession of the premises, he must be held strictly to the rule applicable in such case, and that having never been in the actual possession of the land prior to the entry of the defendant, no ouster has ever taken place. In support of that contention, he relies on McMasters v. Torsen, 5 Idaho, 536, 51 Pac. 100, wherein this court said: “To maintain an action in ejectment it is essential that the appellant allege and prove three things: 1. The right of possession in the plaintiff; 2. Possession in the plaintiff; 3. Ouster of plaintiff by the defendant.”
The proposition as stated in that case is perhaps rather uncertain and possibly misleading. We do not think, however, that it was the intention of the court to hold that a plaintiff, in order to maintain an action in ejectment, must have been actually upon the land prior to the entry and ouster by the defendant. It is true that at one time that was the rule, but the right of possession follows as a matter of law from seisin. One who establishes his title makes a ease entitling him to possession. If any special or peculiar reasons exist why the right of possession in any particular instance should not follow the title, that fact should be shown in defense of the action. In the very instructive case of Payne et al. v. Treadwell, 16 Cal. 220,, Mr. Justice Field, in discussing the subject of ejectment, said: “If the defendant’s holding rests upon any existing right, he should be compelled *144to show it affirmatively, in defense. The right of possession accompanies the ownership; .... the right of present possession is presumed as a matter of law. .... It is by force of this presumption that the plaintiff can rest, in the first instance, his case at the trial upon proof of his seisin, and of the possession by the defendant. From these facts, when established, the law implies a right to the present possession in the plaintiff, and a holding adverse to that right in the defendant.”' In 10 Am. & Eng. Ency. of Law, 2d ed., at page 494, the author says: “The basis of an action of ejectment is the right to the possession and to the title, and a person bringing such action is required, in order to recover, to establish a right of possession.” (War veil e on Ejectment, secs. 219-221; Page v. O’Brien, 36 Cal. 559; Polack v. McGrath, 32 Cal. 15.)
An examination of the modern authorities will disclose the fact that right of possession in the plaintiff at the time of the commencement of the action and a withholding by the defendant at the same time is all that is necessary to be established in order to entitle the plaintiff to recover. This, we take it, is all that is intended by the court in McMasters v. Torsen, although the principle is announced in a somewhat different form from that herein stated. In this case, the plaintiff on receiving his deed to the tract of land in dispute, and recording the same prior to the record of defendant’s deed, became entitled to immediate possession of the premises, and under the provisions of section 3001, supra, defendant’s deed became immediately void as against plaintiff. From that time forth the defendant became a trespasser, and any further withholding of the premises from plaintiff’s possession amounted to an ouster and gave the plaintiff his right of action for such withholding.
It has also been contended in this case that the plaintiff having permitted the defendant to make improvements upon the premises, is now estopped to assert title and right of possession in himself. So far as the record discloses, there is no element of estoppel in the case. The defendant testifies that she never spoke to or had any conversation with the *145plaintiff prior to the commencement of this action. It is, therefore, clear that she was not deceived nor misled by anything he said. Neither is it shown that he performed any act or did anything that would mislead the defendant, or that was calculated to deceive her or cause her to part with her property or labor either to her prejudice or to his gain (Leland v. Isenheck, 1 Idaho, 469; Eastwood v. Standard M. & M. Co., 11 Idaho, 195, 81 Pac. 382.)
Respondent complains of the hardship of this case for the reason, as counsel insists, that she will be obliged to lose her home and the improvements placed upon the land. If her deed had been recorded as provided by law, she would not have taken the risk of such loss. But we can see no reason why she should not receive full compensation for all of her improvements and expenditures, both in time and money; and, indeed, if the land company that undertook to sell and convey this land twice does not amply and fully compensate her, they should be dealt with under the criminal laws as provided by section 7097, Revised Statutes. It is clear to us that there has either been an offense committed by and on the part of this company as defined by the provisions of section 7097, or else they have been guilty of the grossest negligence; in either of which cases they should be made to respond in all damages sustained by the defendant. A corporation cannot escape liability by merely changing business agents between the times of two inconsistent transactions.
The judgment and order appealed from must be affirmed, and it is so ordered. Costs awarded in favor of the respondent.
Sullivan, J., concurs.