
    [No. 5926.
    Decided April 3, 1906.]
    Cora Attebery et al., Plaintiffs and Appellants, v. B. F. O’Neil et al., Defendants and Appellants.
      
    
    Mortgages — Bona Fide Purchaser — Record—Notice—Equitable .Claim — Not Appearing oe Record. A mortgagee is a dona fide purchaser for value without notice where, at the time the mortgagor acquired title to the mortgaged premises, he was a widower living on the land with minor children, the mortgage was joined in by the mortgagor’s second wife, and there was nothing of record and no actual notice to show that the first wife had an equity in the land by reason of an equitable interest or title in the mortgagor prior to her death.
    Same — Stranger to Chain oe Title. The record of a mortgage executed by one outside the chain of title is not constructive notice of any equity or claim.
    Same — Actual Notice — Minors Living With Parent. The fact that minor children were living on the land with their father at the time a mortgage was executed by the father would not import notice of any claim on their part.
    Cross-appeals from a judgment of the superior court for Spokane county, Neal, J., entered January 2, 1905, upon findings by the court after a trial on the merits without a jury, in an action of ejectment.
    Reversed and action dismissed.
    
      Mark F. Mendenhall, Wm. E. Richardson, and Rarry A. Rhodes, for plaintiffs.
    
      A. E. Gallagher and W. J. Thayer, for defendants.
    
      
       Reported in 85 Pae. 270.
    
   Per Curiam.

— On the 13th day of September, 1884, the Northern Pacific Railroad. Company agreed to convey the south half of section 31, township 21, North, Range 45, East, W. M., in Spokane county, to Adelbert H. Wheeler, by written contract of that datei On the 9th day of October, 1884, said railroad company agreed to convey lots 3 and 4, of ■section 5, township 20, North, Range 45, East, W. M., in Whitman county, to Thomas Coakley, by a like written contract. Coakley thereafter assigned his contract to Wheeler, and Wheeler assigned both contracts to M. M. Cowley' as security. On the 26th day of June, 1887, Wheeler agreed to convey the lands embraced in both contracts to Hardin T. Attebery, in consideration of sixty bushels of wheat per acrei, to be delivered in six annual installments of ten bushels to the acre each. At the instance of Wheeler, this contract was entered into between Attebery and Cowley, to whom the railroad contracts had been assigned. Some time thereafter the indebtedness due from Wheeler to Cowley was paid or taken up, and at the request of the former the railroad contracts and the wheat contract were assigned by Cowley to Ham & Son.

During the years 1888, 1889 .and 1890, something over •thirteen thousand bushels of wheat were delivered by Attebery to Ham & Son, under the above contract. In the latter part, of the year 1890, D. T. Ham, the surviving partner of the firm of Ham & Son, agreed to accept $4,500 in cash in lieu of the balance of the wheat to be delivered under the wheat contract, and Attebery, the other party to the contract, agreed to pay that amount. The necessary assignments were thereupon executed to enable Attebery to' obtain title from the railroad company, and on the 26th day of February, 1901, the lands embraced in both contracts were conveyed to Attebery by the railroad company. At or about the same time, Attebery and Samantha Attebery, his daughter, mortgaged the premises to the Deming Investment Company, for about $5,000, to enable them to make payment to D. T. Ham in satisfaction of the wheat contract.

Upon the execution of the wheat contract in 1887, Attebery, his wife and three daughters entered into possession of the lands described therein. In December, 1888, after the delivery of the first installment of wheat under the wheat contract, amounting to forty-two* hundred bushels, the wife of Attebery, and the mother of the present plaintiffs, died intestate. It does not appear that any administration was ever had upon her estate*. Some time prior to March 20, 1893, Attebery remarried, and on that day he and his second wife mortgaged the above described lands to the defendant O’ETeil, to secure the payment of the sum of $1,891.50. This mortgage was regularly foreclosed, and the defendant O’Ueil now holds and claims the land under and by virtue of a sheriff’s deed. The plaintiffs brought this action as heirs at law of their deceased mother, to recover an undivided one-half interest in the property, and for an accounting of the rents and profits. The court below awarded them an undivided seven eighty-thirds of the property, and a like proportion of the net rents and profits. Erorn this judgment both parties have appealed.

The two principal questions presented on the appeal are, (1) Did the mother of the plaintiffs have an interest in the property in controversy which passed to her children by opr eration of law upon her death? and (2) is the defendant O’Ueil a bona fide purchaser for value without notice*? The conclusion we have reached on the last question is decisive of the case. The court below found that the defendant O’JSTeil had full notice and knowledge of the right, title and interest of the plaintiffs as heirs of their deceased mother, at the time of the execution of the mortgage under which he claims title, but with this finding, we cannot agree. It is not claimed that O’ETeil knew the former Mrs. Attebery, or knew that she .or her children had or claimed any interest in the property, until long after the execution of the mortgage under which he now holds. Hor did he have record notice: The only instrument of record affecting the title, aside from the deeds to Attebery, was the mortgage executed by Attebery and his daughter to the Deming Investment Company. The record of this mortgage was no notice of any claim on the piart of the children, for as to them it was without the chain of title. The utmost notice it imported was that Attebery was unmarried at the time of its execution. Hor is there any merit in the contention that the residence of the plaintiffs upon the land with their father gave notice to third parties of any claim they might have to the premises. The occupation of land by minor children with their parents is entirely consistent with the full legal and equitable title in the parents-, and is not of itself any notice of a claim on the part of the children. The court would perhaps have been justified in finding that the defendant O’TTeil knew that the plaintiffs were the children of Hardin T. Attebery, by a former wife, but this would not be sufficient to charge him with notice of their claim to the property.

A purchaser must, no doubt, exercise due diligence to ascertain the status of his several grantors at the time they acquired and conveyed the property, but he is not bound to go outside of and beyond the record to ascertain whether any-such grantor had an equity in the premises before he acquired his title, and whether he was-married or single when such equity was acquired. If such were the case, records and deeds would be of little avail, and the evils resulting from the adoption of such a rule would'far outweigh any -benefits to be derived from it. If a grantee is unmarried at the time he’ acquires title to the property, and the record discloses no equity in him prior to the conveyance, a purchaser is under no obligation to look beyond this, and if he parts with his money in good faith, and without notice of any latent equity, the law will protect him.

We are therefore of the opinion that the defendant O’Heil is a bona fide purchaser for value, without notice, and that he took the title free from any claim or equity that the plaintiffs or their deceased mother may have had in the premises. The judgment is therefore reversed, with directions to dismiss the action.  