(dissenting).
The trial court made the following findings of fact :
1. That at the time the plaintiff began negotiations shortly prior to December 6, 1938, for the purchase of the lands involved in this suit, together with another quarter section in the adjoining Section 14, the abstracts which were then examined by the plaintiff’s attorney showed that all of said lands had been acquired by inheritance by Jim A. Britton and Mary E. Britton as tenants in common, each owning an undivided one half interest, upon the death intestate and unmarried of their son Harvey Almont Britton, to whom such lands had been patented ; that on June 5, 1938, Jim A. Britton and Mary E. Britton conveyed an undivided one half mineral interest in both quarter sections to third parties; that thereafter and prior to the examination of such abstracts by the plaintiff’s attorney, the said Jim A. Britton had died intestate, and that his remaining one fourth mineral interest had been succeeded by Mary E. Britton, widow, in the proportion of one fourth, so as to thereby make her the owner of an undivided five eighths surface interest, and by the three Britton children in the proportion of three fourths, so as to thereby make them the owners of an undivided three eighths surface interest, as tenants in common with the said Mary E. Britton.
2. That such abstracts also showed that on July 11, 1936, Mary E. Britton conveyed an undivided one fourth mineral interest in both quarter sections to E. L. Hanson, who reconveyed the same on July 14, 1936, to the defendant Roy G. Barton, with both of such mineral deeds being recorded on August 4, 1936; that on July 17, 1936, the said Mary E. Britton made another mineral deed purporting to convey an undivided one fourth mineral interest in the land involved in this suit to the defendant Roy G. Barton, which mineral deed was also recorded on August 4, 1936, and which said last mentioned mineral deed was then shown by said abstracts to be an over conveyance of mineral interest to the extent of three sixteenths more than the said Mary E. Britton then owned.
5. That on July 18, 1936, the three children made a quitclaim deed to their mother, Mary E. Britton, covering their entire surface and mineral interest .in both quarter sections; and that such quitclaim deed had been delivered to the defendant Roy G. Barton on or shortly after that date, but that such quitclaim deed was not placed of record until 12 years later on May 21,. 1948.
6. That neither the plaintiff nor his examining attorney had any knowledge of or information about such outstanding unrecorded quitclaim deed at the time he began negotiations for the purchase of such lands •on December 6, 1938, or at the time he completed such transaction on December 5, 1940, nor at any time during the two year course of such negotiations; nor was any mention or intimation ever made by Mrs. Britton or any of the Britton children of such outstanding unrecorded quitclaim deed.
7. Plaintiff had no knowledge or actual notice of the outstanding unrecorded quitclaim deed.
8. That plaintiff through his contact with Mary E. Britton and Zula A. Hinkle representing the other two Britton children reasonably relied upon their assent to the conclusion that the three children were the owners of the three eighths surface interest and three sixteenths mineral interest and whether or not Mary E. Britton was the owner of the five eighths surface interest which they and she proposed to convey.
9. That plaintiff was not negligent in failing to obtain knowledge of the outstanding’ unrecorded quitclaim deed in view of the record title and the representations of Mary E. Britton and the Britton children as appeared in the abstract and from conversation with Mary E. Britton and Zula Hinkle.
The court then concluded:
1. That the plaintiff exercised due diligence in connection with his examination of said title, acceptance of his deed and completion of his purchase of the surface and mineral interests involved in this suit.
2. That the plaintiff was not negligent in connection with examination of said title, acceptance of his deed and completion of his purchase of the surface and mineral interests involved in this suit.
3. That the plaintiff made all inquiries which were reasonably necessary under the facts and circumstances of this case.
4. That the plaintiff was an innocent purchaser in good faith, for value, and without notice of such outstanding unrecorded quitclaim deed.
5. That the plaintiff is the owner in fee simple of the surface and mineral interests involved in this suit, and that he is entitled to a decree quieting title in him.
The majority says that the deed- dated July 17, 1936, in which Mary E. Britton conveyed an undivided one fourth mineral interest put appellee on notice of the unrecorded quitclaim deed from the three children to their mother, Mary E. Britton. On the othqr hand, appellee insists that said deed was merely an over conveyance and that he is a bona fide purchaser for value and without notice.
The evidence discloses that when appellee’s attorney first examined the abstract of title December 6, 1938, it showed that the three children of Mary E. Britton were the owners of three sixteenths mineral interest and so advised the mother, Mary E. Brit-ton. He also advised Mrs. Britton that after the death of Mr. Britton that she was owner of five sixteenths mineral interest and that after she conveyed an undivided one fourth mineral interest to Hanson she then had one sixteenth mineral interest left. He explained to her further that when she- conveyed a one fourth mineral interest on July 18, 1936, to Barton that there appeared to be an over conveyance of her mineral interest. And, on account of what was considered to be an over conveyance, Mrs. Britton employed the services of an attorney, Mr. G. T. Hanners, Esq., of the Lovington bar, to institute suit to quiet title. She verified a quiet title complaint but the suit was not filed because it was then discovered that Harvey Almont Britton had not been dead the required statutory time. Instead, about two years later, Mrs. Brit-ton instituted suit for a determination of the heirs of the deceased son under the provisions of Chap. 187, Laws of 1939. The fact that Mrs. Britton had signed the complaint under Oath, stating that she was the owner' of an undivided five eighths surface interest and that her children were the owners of the remaining surface interest and an undivided three sixteenths mineral interest, and the, record so showing, the finding that appellee was not negligent in failing to obtain knowledge of the unrecorded quitclaim deed finds support in the evidence.
. The majority further says that appellee was negligent in failing to contact appellant directly with respect to his interest. I do not think so. There is not the slightest suggestion in the chain of title that the Brit-ton children did not own the remaining three sixteenths mineral interest, nor does the majority point to testimony tending to contradict such fact. Moreover, there were many owners of- mineral interests in the land, possibly fifty. If the majority is correct, then appellee was equally bound to contact the various owners with respect to their interests as they were similarly affected. Clearly, no such burden was imposed upon him by the record.
The quitclaim deed from the Britton children to their mother was delivered to appellant at the same time he received the deed from Mary E. Britton conveying the one fourth mineral interest, the “over conveyance.” Manifestly, he was negligent in failing to record it, resulting in the involvement of a bona fide purchaser. I believe' our recording statutes, Sections 13-201,. 202, 203, 1941 Comp., fully answers appel-lant’s contention.
“13-201. Recording deeds, mortgages, and patents. — All deeds, mortgages, United States patents and other writings affecting the title to real estate, shall be recorded in the office of the county clerk of the county or counties in which the real estate affected thereby is situated.
“13-202. Constructive notice of contents. — Such records shall be notice to all the world of the existence and contents of the instruments so recorded from the time of recording.
“13-203. Unrecorded instruments — Effect. — No deed, mortgage or other instrument in writing, not recorded in accordance with section 4786 (§ 13-201), shall affect the title or rights to, in any real estate, of any purchaser, mortgagee in good faith, or judgment lien creditor, without knowledge of the existence of such unrecorded instruments.”
The question of constructive notice was before us in the case of Kitchen v. Schuster, 14 N.M. 164, 89 P. 261, 265. The case involves a failure to record a chattel mortgage and we applied the Federal Rule on constructive notice. In this case, we said: “ * * * The testimony for the plaintiff, it is claimed by him, tends to show that Schuster had both actual and constructive notice of the mortgage. The defendant denies that it shows either. The proper rule governing constructive notice is in our judgment stated in United States v. Detroit [Timber & Lumber] Co., 200 U.S. 321, 323, 26 S.Ct. 282, 285, 50 L.Ed. 499, where it is said: ‘When a person has not actual notice he ought not to be treated as if he had notice, unless the circumstances are such as enable the court to say, not only that he might have acquired, but also that he ought to have -acquired it, but for his gross negligence in the conduct of the business in question. The question then, when it is sought to affect a purchaser with constructive notice, is not whether he had means of obtaining the knowledge in question, but whether not obtaining was an act of gross or culpable negligence.’ ”
Again, in Mabie-Lowrey Hardware Co. v. Ross, 26 N.M. 51, 189 P. 42, 43, the question of implied notice was before us. The case involves an unrecorded instrument analogous with the present facts. In that case, one Dock Townsend, conveyed his land by warranty deed to a party by the name of Toole. Toole reconveyed the property to Mabie-Lowrey Hardware Co. The latter deed was promptly recorded but the deed from Townsend to Toole was not recorded until some two years later. Meanwhile, Ross purchased the property from Townsend for value and without knowledge of the existence of the outstanding, unrecorded deed. In holding that Ross was an innocent purchaser for value, and without notice, the court said:
“Both parties claim title to the property in question through conveyances from one Dock Townsend. Plaintiff received its paper title by warranty deed from one Toole, to whom Townsend had conveyed. The deed from Townsend to Toole was not recorded until nearly two years after it was made. The deed from Toole to the plaintiff was promptly recorded. Subsequent to the time Townsend made his deed to Toole, he (Townsend) made a quitclaim deed to the defendant, Tom Ross, which quitclaim deed was recorded prior to the recording of the deed from Townsend to Toole. The court below held that Ross was a purchaser in good faith, without knowledge of the existence of the unrecorded deed, and gave judgment in his favor.
“The plaintiff below, appellant here, assigns as error this action of the trial judge, contending that defendant was not a pur- ' chaser in good faith, as he obtained his title by quitclaim deed, and therefore had no interest or title in the land, because Townsend had previously conveyed his interest by an unrecorded deed to Toole, who had conveyed to plaintiff. He further contends that defendant could take only what Townsend had to convey, and that Townsend had at the time nothing to convey. It is admitted that defendant paid value for the property in question, that he had no knowledge of the existence of the outstanding unrecorded deed from his grantor to Toole, and that the records of deeds in the county recorder’s office show that the record title was in his grantor, Townsend, at the time he, the defendant, purchased. It is contended, however, because he took a quitclaim deed from Townsend, that he is not a purchaser in good faith under the. recording acts; that is, section 4788, Codification of 1915. ■ (Here follows so much of the opinion as relates to the fact that the Ross deed was a quitclaim deed and not a warranty deed — not considered material to the controversy here)
“We therefore hold that the trial judge correctly decided in favor of the defendant, and the judgment below is affirmed; and it is so ordered.”
In Taylor v. Hanchett Oil Co., 37 N.M. 606, 27 P.2d 59, we referred to, and reaffirmed the Mabie-Lowrey case. See also, Dunne v. Petterman, 52 N.M. 284, 197 P.2d 618, where the reasonable diligence rule was applied.
It is my opinion that appellee was not charged with notice of the unrecorded deed. The majority -having concluded otherwise, I dissent.
LUJAN, C. J., concurs.