Strong v. Whybark

WOODSON, J.

This is a bill in equity, instituted in the circuit court of Butler county, wherein plaintiff seeks to have her title quieted to five hundred and twenty acres of land. John R. Boyden was one of the ■ several defendants named in the bill. He filed an answer claiming an interest, in and to one hundred and sixty acres of said land, and also denied generally the allegations of the bill. No point is made against the pleadings, and he is the only defendant whose interest is involved in this appeal.

The facts in the case are undisputed and are as follows:

*345 Seth. D. Hayden was the common source of title, and on March 6,1861, by his warranty deed, for a recited consideration in the* deed of six hundred and forty dollars, conveyed said land to William A. Moore, and on August 26,1863, said Hayden, by his quitclaim deed, for a recited consideration of “natural love and affection and five dollars, ’ ’ conveyed the same land to Josephine Hayden. The deed to Hayden was recorded April 11, 1868, and the one to Moore was recorded December 14, 1874.

The plaintiff’s title is derived through mesne conveyances from Josephine Hayden, while defendant’s title is derived through similar conveyances from William A. Moore. It was admitted that the land was wild and unoccupied. This was all the evidence in the case.

The court found for defendant and rendered judgment for him. The plaintiff in due time filed his motion for a new trial, which was overruled by the court, and to the action of the court in overruling said motion the plaintiff duly excepted, and has appealed the cause to this court.

I. The sole question involved in this case is, did the subsequently executed quitclaim deed of Seth D. Hayden to Josephine Hayden, dated August 26, 1863, by virtue of its prior recordation, have the force and effect of conveying to her the title to the land in controversy by force and operation of the registry act, and thereby render invalid and inoperative the prior warranty deed made by him to William A. Moore, dated March 6,1861, but not filed for record until December 14,1874?

There is no evidence whatever in this record tending to show that Josephine Hayden had any notice or knowledge of the execution of the prior unrecorded warranty deed from Seth D. Hayden to said Moore, at theffime he made the quitclaim deed to her, nor is there any evidence of fraud or collusion between Seth D. Hayden and Josephine Hayden. Both William A. *346 Moore and Josephine Hayden neglected for years to file their deed for record, as provided for hy section 923, Revised Statutes 1899', yet the latter filed her deed about six years prior to the time when he filed his.

The statute provides that “no such instrument in writing shall be valid, except as between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the recorder for record.” [R. S. 1899, sec. 925.]

According to the provisions of this section, the deed from Hayden to Moore was invalid and conveyed no title to the land in controversy in so far as Josephine Hayden was concerned, because she had no notice of its execution at the time' she filed her deed for record. If the exception mentioned in the section just quoted was the only exception or limitation to that statute, then there would be‘no question as to the title of Josephine Hayden and those claiming under her, but the courts upon principles of equity and justice have repeatedly held that if the subsequent purchaser either had notice of the prior unrecorded deed, or if he was a purchaser without having paid a good and valuable consideration for the land, then he would take nothing by his purchase and deed.. [Maupin v. Emmons, 47 Mo. 304 ; Aubuchon v. Bender, 44 Mo. 560 .] The question now presents itself is, was Josephine Hayden a purchaser of the land in question for a good and valuable consideration? The deed recites that the conveyance was made for and in “consideration of natural love and affection and five dollars to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged. ’ ’

A valuable consideration is defined to be money or something that is worth money. [2 Washburn on Real Prop. (4 Ed.), p.394; 1 Chitty on Contracts (11 Am. Ed.), 27.] It is not necessary that the consideration should be adequate in point of value. Although small *347 or even nominal, in the absence of fraud, it is enough to support a contract entered into upon the faith of it. [Forbs v. Railroad, 107 Mo. App. l. c. 674; Marks v. Bank, 8 Mo. 316 ; Ridenbaugh v. Young, 145 Mo. l. c. 280; Blaine v. Knapp & Co., 140 Mo. l. c. 251; Anderson v. Gaines, 156 Mo. 664 ; Green v. Higham, 161 Mo. 333 ; 6 Am. and Eng. Ency. Law (2 Ed.), p. 694, par. 5.] It seems to us that it would be a useless waste of time and energy to cite authorities in support of the proposition that five dollars or any other stated sum of money in excess of one cent, one dime, or one dollar, which, are the technical words used to express nominal considerations, is a valuable consideration within the meaning of the law of conveyancing.

It has been suggested that a quitclaim deed is notice of pre-existing equities, and that those who claim under Josephine Hayden had notice that her title to this land was questionable, and that neither she nor they could defend upon the ground that they were bona fide purchasers for a valuable consideration without notice of the title of the true owner. [Stivers v. Horne, 62 Mo. 473 ; Mann v. Best, 62 Mo 491; Ridge-way v. Holliday, 59 Mo. 444 .]

But the rule last suggested has no. application to a case where the grantee under a subsequent quitclaim deed from the same grantor acquired the title for value and without notice of the former unrecorded deed. [Fox v. Hall, 74 Mo. 315 .] “A purchaser for value by quitclaim deed is as much within the protection of the registry act as one who becomes a purchaser by a warranty deed.” [Munson v. Ensor, 94 Mo. l. c. 509; Campbell v. Gas Co., 84 Mo. 352 ; Brown v. Coal Co., 97 Ill. 214 ; Elliott v. Buffington, 149 Mo. l. c. 676; Ebersole v. Rankin, 102 Mo. 488 .]

Where the controversy is between the vendtee of a duly recorded deed and the vendee of a prior unre *348 corded deed from the same vendor, the settled rule of law in this State seems to be that the consideration in the latter must be such as the law denominates a valuable consideration as distinguished from a good consideration. We know of no case which has gone farther and holds that the purchaser under the recorded deed must have paid a full and adequate consideration for the land.

If fraud is made an issue in the case, then the inadequacy of the consideration paid may be taken into consideration with all the other facts and circumstances in the ease for the purpose of establishing fraud; but in the absence of fraud, a want of consideration cannot be shown against a recital of a consideration for the purpose of defeating the operative words of a deed. [Bobb v. Bobb, 89 Mo. 411 ; Henderson v. Henderson’s Exrs., 13 Mo. 151 ; Hollocher v. Hollocher, 62 Mo. l. c. 273; McConnell v. Brayner, 63 Mo. l. c. 463; McCrea v. Purmort, 16 Wend. 475 ; Farrington v. Barr, 36 N. H. 86; Kimball v. Walker, 30 Ill. 511 .]

In the case at bar, however, there was no evidence introduced tending to prove the recited consideration of five dollars was not in fact paid.

Counsel for defendant, in both his oral and written arguments, contends that Josephine Hayden procured her deed from Seth D. Hayden by fraud. It is a sufficient answer to that to say that no such issue is made by the pleadings in the case, nor was there a word of evidence introduced at the trial tending to establish that fact.

If defendant wished to rely upon fraud as a defense, he should have alleged and proved it. The burden of proving such anpssue is upon the defendant. [Jackson v. Wood, 88 Mo. 76 ; Nauman v. Oberle, 90 Mo. 666 ; Taylor v. Crockett, 123 Mo. 300 .]

*349 It follows from what has been said that the judgment of the circuit court must be reversed, and the cause remanded for a new trial.

All concur.