discussing development and importance of recording acts, and holding that mere possession of real property by person who held unrecorded contract of sale for deed did not constitute constructive notice of that claim, such that further investigation by subsequent mortgagee was required
How later courts described this case
- discussing development and importance of recording acts, and holding that mere possession of real property by person who held unrecorded contract of sale for deed did not constitute constructive notice of that claim, such that further investigation by subsequent mortgagee was required
- "recording amounts to notice, whether known or unknown, because the means of information are at hand"
- holding as to the two parties involved in making an instrument, recording is not necessary for the instrument to be valid
- treating an instrument wherein the purchaser did not pay the entire purchase price, did not receive a deed or title, and took immediate possession as an executory contract
Written by the judges who cited it.
The opinion
Mr. Justice Cothran
(dissenting) : The sole question in this case is whether a written contract for the sale and purchase of real estate comes within any of the 'classes of instruments of writing described in Section 512 (Civ. Code 1922). The only class that it could possibly come within is:
“Deeds of trusts or instruments in writing, conveying either real or personal estate, and creating a trust or trusts in regard to such property, or charging or incumbering the same.”
*512
It is certainly
not
a deed at all, and therefore as certainly not a deed of trust; it is as certainly not an instrument in writing conveying real estate; and, although it may be considered as creating a constructive trust, technically, in the vendor for the benefit of the vendee and vice versa, under the Act it must not only have that express effect, but must be a conveyance of real estate, for the Act describes a paper which does both.
I am inclined to this strict construction of the Act of 1888 (now Civ. Code 1922, § 5313), for several reasons: The rule which generally obtained before that Act was passed, as explained in the case of
Sheorn v. Robinson,
22 S. C., 32, appears to be so just and reasonable, enforced for centuries, that it should not be abrogated except upon the plainest statutory mandate; both parties are claiming an equity, the plaintiffs the equity of
bona fide
purchasers
(Sweatman v. Edwards,
28 S. C., 58; 5 S. E., 165 ), and the defendant an equitable title; the mortgagee was derelict in not ascertaining the character of Lizzie Rogers’ possession; she had good reason to think that it was not necessary to record her contract ; the Act of 1925 was a legislative recognition of the fact that such a contract was not required to be recorded under the Section 5312, and that an amendment was necessary. A parol contract accompanied by possession would certainly not come within the Act of 1888 (See. 5313), and there would be presented the anomaly of a parol contract having greater efficacy than a written contract; the hardness of the case upon this old colored woman who is not nearly so much to blame as the mortgagee who trusted in the realty company without the slightest inquiry into the status of Lizzie Rogers’ possession.
It seems to me that where, as in this case, both parties are relying upon the principles of equity, the equity of the case is overwhelmingly with the old darkey. It should at least be ascertained whether the plaintiffs have other security to which they may have recourse in relief of the defendant.