Bernardy v. Colonial & United States Mortgage Co.

Citations

• 17 S.D. 637
• 98 N.W. 166
• 1904 S.D. LEXIS 9

Syllabus

<p>1. Civ. Code, § 947, subd. 4, declares that where a person, purports, by a proper instrument, to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, thesame passes by operation of law to the grantee or his successors. Held, that where an entryman on public land conveyed it to defendant, by deed purporting to grant a fee simple title, before a patent was issued, on the subsequent issuance of the patent to the grantor the fee passed to defendant under the deed.</p> <p>2. Under Civ. Code, §§915, 916, providing that a transfer is an act of the parties'or of the law by which title to property is conveyed by one living person to another, and that a voluntary transfer is an executed contract, subject to all the rules of law concerning contracts in general, except that a consideration is not neccessary to its validity, a conveyance of real estate without consideration is valid as between the parties.</p> <p>3. Civ. Code, § 943, provides that every grant of i eal property is conclusive against the grantor and every one claiming under him, except a bona fide purchaser or incumbrancer who acquires a title or lien by aninstrument first duly recorded; and section 989 declares that the recording and deposit of any instrument for record shall be constructive notice of the execution of such instrument to all subsequent purchasers and incumbrancers. ' Held, that where an entryman conveyed the property before receiving a patent by deed, which was immediately recorded, and after patent issued he mortgaged the property to another, the mortgagee was bound to take notice of the deed recorded before the patent, and acquired no interest in the property as against the grantee therein. Fuller. J ,.dissenting.</p>