Stafford v. Lick

Murray, C. J.,

delivered the opinion of the Court—Terry, J., concurring.

This was an action of ejectment in the Court below. Trial and judgment for defendants. Several grounds of error are assigned by the appellants, which it is considered unnecessary to mention.

Passing by the question, whether a parol sale of real estate was good under the Mexican law, and treating the written instrument as a conveyance from Fernandez to Uoe, we will proceed to inquire what the effect of such a conveyance is as against a subsequent purchaser in good faith. This inquiry involves three questions: 1st, "Whether the forty-first section of the Recording Act requires conveyances made before the passage of the act to be recorded ? 2d, If the terms of the act extend to such conveyances, is the law unconstitutional ? 3d, Was the defendants’ possession notice of their title ?

The act concerning conveyances, passed April 30th, 1850, provides the mode in which conveyances shall be made, acknowledged, and recorded. That when so made and recorded, they shall impart notice of their contents to all persons; and if not so made and recorded, they shall be void as against subsequent purchasers in good faith. §§ 24, 25, and 26. The forty-first section of the act provides that all conveyances of real estate theretofore made and acknowledged, or proved according to the laws in force at the time of such making, and acknowledgment or proof, shall have the same force as evidence, and be recorded in the same manner, and with like effect, as conveyances executed in pursuance of this act.

It is contended that this section does not require these conveyances to be recorded, but .simply permits them to be. That when so recorded, they do not impart notice, but are allowed to be used as evidence, and that there is no penalty for the non-recordation thereof.

In order to arrive at a correct understanding of the intention of the Legislature, it will be necessary to examine the whole act. The design was to establish a system of constructive notice in relation to conveyances affecting real estate. At that time all the lands not claimed by patent from the Mexican government were supposed to belong to the United States. Years would intervene before these lands could be surveyed and brought into the market, and it does seem absurd to suppose that the Legislature intended to require future conveyances 'to be recorded under certain penalties, and leave the originals from which they derive their validity to rest in undertainty and doubt.

The act must be taken as a whole. In the foregoing sections the duty of recording future conveyances is enjoined, and the penalty declared in the forty-first section, which is but a continuation. It is provided that past conveyances shall be recorded in the same manner, and with like effect. It is true, that the section does not say in so many words that, unless so recorded, the deed shall be void, but this results by necessary implication from the other section of the statute. Such, at least, was the decision of this Court in the case of Call v. Hastings, 3 Cal.; and whatever might be our opinion, were the question res integra, we are not now disposed to disturb a rule of property that has been so long settled. The public have governed themselves by that opinion, and the question ought not to be again re-opened to meet the exigencies of a few cases arising from the laches of the parties, and not from the harshness or injustice of the rule. .

We will proceed next to inquire if the forty-first section of the act is in conflict with the Constitution of the United States, or of the Constitution of the State of California.

It is claimed, first, that the act conflicts with that provision of the Constitution which forbids the States from passing laws impairing the obligations of contracts; and second, that it is obnoxious to our Constitution, because it divests vested rights.

It is difficult to see how it can be claimed that this act impairs the obligation of contracts. A sells his lands to B, before the passage of the act; the deed contains covenants of warranty and seizin. The law does not impair the obligation of the contract, by declaring that A shall not be liable on his covenant to B, neither does it say that the fee shall be divested, or that B shall have less, or A retain anything in the land sold; between them, the statute expressly declares the conveyance shall be good. But as to third parties, it says, if B does not make his title known by recordation, thereby giving constructive notice of Ms right, and A sells to an innocent purchaser who has no notice of B’s title, B shall be deemed guilty of fraud, and his conveyance shall be postponed to that of an innocent purchaser. The contract between the original parties is not interfered with. A has passed all his title in the land, and B is the owner thereof. If B chooses to neglect his duty, as pointed out by the law, and another, in ignorance of his rights, purchases the land, how can B avail himself of his own laches ?

It appears to us, that one of the purposes for which government was ordained, was to protect and give security to property, and if salutary laws of this character, ordained for public convenience and to prevent the perpetration of fraud, cannot be passed, that the Legislature is impotent indeed.

In Jackson v. Lamphier, 3 Peters U. S. Rep., p. 289, the Court say : “ It is within the undoubted power of State Legislatures to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time, and the power is the same, whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts; such, too, is the power to pass acts of limitations, and their effect. Seasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the Legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on those subjects may be so unreasonable as to amount to a denial of a right, and call for the interposition of the Court, but the present is not one.”

In support of the contrary doctrine, the case of Yarick’s Executors v. Briggs is relied on. In this case, Chancellor Walworth, in 6 Baige, held that the power of the Legislature to pass acts requiring prior conveyances to be recorded was undoubted, but the decision turned on the point that the deed in question, executed in 1802,. was not within the act of 1813. On appeal to the Court of Errors, see 22 Wend., the decision of the Chancellor was sustained by a unanimous vote. Senator Yerplanck, who delivered the decision of the Court, dissented from the opinion of the Chancellor as to the power of the Legislature to pass acts affecting past conveyances. The statement is sufficient to show that the case cited has no authority, and that the Court did not overrule the opinion of the Chancellor, in fact; that part of the opinion to which Senator Yerplanck dissented may be regarded as mere dictum, but when we take into consideration the high authority from which it emanated, it is not without weight.

The case of Bobinson v. Bowan, 2 Scammon, Illinois Bep., has also been cited. The question there was, whether the statute was designed to act retrospectively, and it was held that it was not. It is true that Chief Justice Wilson, in commenting on the case, intimates that such a law would be unconstitutional, but as this point was not involved, it may be regarded as mere obiter.

Let us next inquire if this act divests vested rights.

Again, it may be remarked that it would be difficult to see wherein the act had such an effect. It does not take the property from one man and give it to another; it does not impair his title or take away his right, but simply establishes a rule of evidence. It says to A, if you do not record your deed, and suffer an innocent purchaser to buy your land without the notice hereby established as between yourself and such purchaser, you shall be postponed to his rights. It introduces a new rule, plain and simple, the terms of which may easily be complied with, and he who refuses to bring himself within it, ought not to be allowed to defend in a -Court of Justice. We can see no difference in principle, between this and limitation laws, or acts abolishing imprisonment for debt, or revenue acts. It might as well be claimed that if a certain class of property was exempt from taxation under the laws of Mexico, that the Legislature of California could impose no burdens on it.

The power to regulate this subject, has never been disputed. It is the high prerogative of State sovereignty, and when properly and justly exercised, should be maintained. If the act was unreasonable or onerous in its provisions, there might be a question, but where parties have neglected for years the plain mandate of the statute, they cannot complain that it is unjust.

We come now to inquire how far the plaintiffs were affected with notice of the defendants' title, by reason of their possession. In the case of Mesick v. Sunderland, we held that it was the intention of the Legislature to do away with all constructive notice, other than that arising fromfthe record, preserving, at the same time, as far as compatible with the rule, actual notice in fact. This intention, we thought, clearly appeared from the statute concerning conveyances, which, on examination, will be found to differ from every statute in the Union on the same subject; and unless this construction be maintained, then one-half of the act must be treated as mere surplusage.

It was the first time the question had come before this Court. Judges in England and the United States had frequently regretted that a more rigid adherence to the rule had not been enforced. It was obvious that sound policy and morality required that the whole doctrine of constructive notice arising from facts and circumstances in pais, should be exploded, and nothing but the former decisions of those Courts, tied down as they were by precedent, prevented them from taking a new departure, and establishing a new rule. In this State, while our jurisprudence is in its infancy, it is competent for us to do what the Courts of other States could not; and by conforming strictly to the statute, to afford the public a safe and commodious means by which they may acquire information and protect themselves against fraud. When once the rule is understood, that every man must record his title, no hardship will be found in it, and it will serve as a protection against those who by unrecorded titles seek to perpetrate frauds upon the community.

In the case of Mesick v. Sunderland, we expressly held, that the statute did not do away with notice in fact but only constructive notice, as to those instruments required to be recorded, so that the doctrine of notice of title arising from possession, no longer obtained. But we nowhere said that possession, together with another fact, might not be admitted in evidence, for the purpose of establishing fraud or notice in [fact; such, on the other hand, was our understanding of the case, and in the present case, we think it would be proper to admit evidence of possession, as a fact tending to establish notice of title, though not a fact from which notice would follow as a conclusion of law.

On the argument of this case, the counsel for the respondent reviewed the decision of Mesick v. Sunderland, and seemed to think that it was intended to apply to all conveyances of any estate in lands, legal or equitable, and that, unless recorded, they were void as against subsequent purchasers in good faith without notice. Such certainty appears to be the language of that decision, and it is due to the Court, as well as to the counsel who argued the case, to state that the fact of notice arising from possession was not a distinct ground relied on in the case, the object of both parties being to get the opinion of the Court as to the character of the instrument and the estate conveyed.

In Cook v. McChristian, which was a suit involving a right of homestead, it was contended that the intention of the parties to dedicate the premises for homestead purposes should have been made in writing, and recorded in the county recorder’s office; but we held, the law did not require that such estates should be recorded, to operate as notice, and that in the absence of any statute on the subject, the common law rule obtained, and possession would put the purchaser upon notice of the occupant’s title. Such, I suppose, must be the rule in every case where the law does not require a particular species of conveyance to be recorded ; but wherever the statute has said, that certain instruments shall be recorded, to operate as constructive notice, it is absolutely necessary that the law should be complied with; otherwise they will be void as against subsequent purchasers in good faith without notice;—the doctrine of constructive notice arising from possession having been superseded or abrogated by notice established by the statute.

So far as the opinion of the Court in Mesick v. Sunderland militates against this position, it is erroneous, and cannot be sustained on principle or authority.

Judgment reversed, and cause remanded.