# Jennings v. Lentz > Oregon Supreme Court · January 21, 1908 · 50 Or. 483 URL: https://www.frixlaw.com/law-library/cases/6900640 ## Case - **Full name:** JENNINGS v. LENTZ - **Court:** Oregon Supreme Court - **Decided:** January 21, 1908 - **Citations:** 50 Or. 483; 93 P. 327; 1908 Ore. LEXIS 204 - **Precedential status:** Published - **Opinion:** Dissent by Eakin - **Judges:** Eakin, King, Slater - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6900640 ## Opinion text Mr. Justice Eakin delivered the dissenting opinion. I am unable to concur in the foregoing opinion. The real point upon which the decision turns, is that the purchaser from a grantee whose deed is not recorded is, by reason of that fact alone,- put upon inquiry, and consequently charged with notice *492 of tbe prior unrecorded conveyance from such grantee, and T refer to the rights of the attaching creditor as those of a tona fide purchaser for value without notice, as that is what the statute says he shall be deemed. It is conceded that if the grantee’s deed is on record, a purchaser from him is not put upon inquiry or notice of a prior unrecorded deed. He takes a good title, if in fact ignorant of it. There are many cases where there can be no record of one’s title, such as title by descent or by adverse possession, but that fact cannot prejudice one’s right to purchase or attach. I dare say that it is an everyda}'' occerrence that purchases are made from grantees who have not yet had their deeds recorded. In such a case the purchaser is bound to search the record for a conveyance from the apparent owner, as disclosed by the record, as well as from his own vendor, but the fact that his vendor’s deed is not recorded cannot put him upon any other inquiry, or charge him with notice of any other facts. Section 5359, B. & C. Comp., provides that: “Every conveyance of real property within this State hereafter made, which shall not be recorded as provided in this title, within five days thereafter, shall be void against -any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance shall be first duly recorded.” From this it seems clear that the recording statute has no reference to the title acquired by the purchaser from one whose deed is not recorded, but affects the title only of him who fails to record his deed until a prior deed from his grantor, of which he had no notice, is recorded. The statute contains no suggestion or imputation that one can purchase only from him who appears, from the record, to be the owner, or if he does so, it is at his peril. The effect of the opinion in the ease is that, if one purchases from a person who is not disclosed by the record to be the owner, he gets only such title as his grantor actually has at the time of the purchase, regardless of the provisions of the recording statute. This is the holding in Flynt v. Arnold, 2 Metc. (Mass.), 619. The effect of our statute (B. & C. Comp. *493 §§ 302, 5359), is that the attachment can reach the actual interest had in the property by the' debtor at the time of the attachment, and as to this remedy the registration laws have no application whatever, and the attachment can reach only such interest, except that in case of a prior conveyance by the debtor such conveyance will be deemed void if it is unrecorded and the creditor is without notice of its existence, and in that case the attachment will be effectual as though said deed had not been made, and the recording statute, by its terms or intendment, applies only to such unrecorded instrument. In the case of Davis v. Lutkiewiez, 72 Iowa, 254 ( 33 N. W. 670 ), it is said: “An unrecorded deed is valid as to the whole world, except a subsequent purchaser for a valuable consideration without notice. Surely the deed itself is better evidence of title in the grantee than the record of the deed. This deed the mortgagor had and held when Davis & Sons took their mortgage. A record of it- would have imparted no notice not imparted by the”orjginal instrument.” The court, further speaking of the case of Flynt v. Arnold, 2 Metc. (Mass.), 619, which holds that “one who purchases land from a person holding an unrecorded deed purchases at his peril,” says: “But this proposition cannot be sustained, because, under our registry laws, the holder of an unrecorded deed has a complete title except as against a subsequent good-faith purchaser without notice.” Johnson v. Erlandson, 14 N. D. 518 ( 105 N. W. 722 ), was a case where Hogenson, the original owner, conveyed to Erlandson, which conveyance was never recorded. Erlandson executed a deed to Baker, but it was never delivered, and was fraudulently put on record by Baker, and plaintiff claims through Baker. The question was whether the fact that the deed to Erlandson was unrecorded put plaintiff on inquiry or charged her with notice of Erlandson’s rights. The court say, in substance : *494 “It is urged that the failure to record the deed from Hogenson to Erlandson was sufficient to put plaintiff upon inquiry and charge her with notice of the facts which inquiry of Erlandson would have disclosed.” The' court further say: “We cannot agree with this argument. The fact that the record failed to show that Hogenson had ever parted with his title was constructive notice of Hogenson’s rights and nothing more. The only subject of inquiry suggested by that fact was the question as to whether or not Erlandson had unconditionally acquired Hogenson’s title. It is admitted that such is the fact.” The Massachusetts cases hold that the attaching creditor is not protected in his levy unless the attachment debtor had at the time of the lev}» a record title, on the theory that that is his means of information (Cowley v. McLaughlin, 141 Mass. 181 ( 4 N. E. 821 ); Haynes v. Jones, 5 Metc., Mass., 292; but in the former ease the court suggest that if he knew at the time of» the attachment that the title had passed to the attaching debtor it might be sufficient. In Davis v. Lutkiewiez, 72 Iowa, 254 ( 33 N. W. 670 ), it may be inferred that the mortgagees had knowledge of the conveyance to their mortgagor, and in Johnson v. Erlandson, 14 N. D. 518 ( 105 N. W. 722 ), the plaintiff, in taking her title under an unrecorded deed, had the same character of information of its execution as the attaching creditor had in this case, viz, the statement of the grantor in the unrecorded deed. In this case the attaching creditor had information from Lentz, Duvall’s grantor, that a conveyance had been made to Duvall; and I am convinced that in such a case a purchaser for value without notice is not, by reason of the absence of the vendor’s title from the record, put upon inquiry or charged with notice that the grantee in the unrecorded deed had previously conveyed the property. Mb. Commissioner Slater concurs in this dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6900640. Public record. Not legal advice.