This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Regarding the question of burden of proof, in its general aspect, in accordance with the statement of a leading authority on the law of evidence,4 as merely one "of policy and fairness based on experience in the different situations," it is not surprising that the courts, in imposing such burden in
58 Miss. 846; Lissa v. Posey, 64 Miss. 362, 1 So. 500.
99. Ante, Sec. 567(m), note 47.
1. Stevenson v. Texas & P. Ry. Co., 105 U. S. 703, 26 L. Ed. 1215; Motley v. Jones, 98 Ala. 443, 13 So. 872; Danner v. Crew, 137 Ala. 617, 34 So. 822; Doyle v. Wade, 23 Fla. 90, 11 Am. St. Rep. 334, 1 So. 516; Guiteau v. Wisely, 47 111. 433; Hughes v. Williams, 218 Mass. 448, 105 N. E. 1056; Sharp v. Shea, 32 N. J. Eq. 65; Herring v. Cannon, 21 S. C. 212, 23 Am. Rep. 661; Butler v. Maury, 10 Humph.
(Tenn.) 420; Grace v. Wade, 45 Tex. 522.
2. Post, Sec. 670.
3. Koch v. Wilcoxon, 30 Cal. App. 517, 158 Pac. 1048; Shirk v. Thomas, 121 Ind. 147, 16 Am. St. Rep. 381, 22 N. E. 976; Churchill v. Morse, 23 Iowa, 229, 92 Am. Dec. 422; Tate v. Sanders, 245 Mo. 186, 149 S. W. 485; Moyer v. Hinman, 13 N. Y. 180; Cantwell v. Barker, 62 Ore. 12, 124 Pac. 264.
4. 4 Wigmore, Evidence, Sec. 2486.
Connection with the issue of purchase for value without notice, are by no means in harmony. The claim by a subsequent purchaser to priority may be based, in the particular case, on the equitable doctrine of bona fide purchaser for value, as it exists apart from statute, or on the statutory provision for the recording of conveyances, and the rules as to the burden of proof are not necessarily the same in both cases.5 The courts do not however, ordinarily suggest any distinction between the two cases, in this regard, and the decisions hereafter cited in regard to the burden of proof in the one case are usually, so far as appears from the language of the opinions, applicable as well in the other.
In this connection, as in others, the question of the burden of proof is somewhat complicated by the fact that the phrase is used in two senses, that is, in the sense of the risk of won persuasion of the jury or other tribunal, and also in the sense of the burden of producing evidence.6 In the decisions here referred to, in regard to the burden of proof as to purchase for value without notice, the courts do not ordinarily attempt to distinguish between these two meanings of the phrase, and it may be assumed that, in stating that the burden of proof is on the subsequent purchaser, or on the holder of the prior equity or unrecorded instrument, as the case may be, they mean that such person has both burdens, one of them, however, that of introducing evidence, being susceptible of being subsequently shifted to the other party.
There are a number of authorities to the effect that one who asserts an equity against a purchaser has, the burden of showing that the latter purchased with notice of the equity,7 and in support of such a view it has been suggested8 that, regarding an equitable claim as in its nature a mere right in personam, even when it is referred to as an equitable interest or estate,9 it seems reasonable that one asserting such a claim against a person, not originally subject thereto, merely by reason of his having purchased certain property, should be required to show that the purchase was under such circumstances as to make the purchaser so subject. In some jurisdictions, however, a contrary view has been adopted, to the effect that the purchaser has the burden of showing lack of notice on his part of the prior equity.10
5. See Bell v. Pleasant, 145 Cal. 410, 104 Am. St. Rep. 61, 78 Pac. 957; Mcalpine v. Burnett, 23 Tex. 649; Johnson v. Newman, 4:: Tex. 628; Kimball \. Houston Oil Co., 100 Tex. 336, 99 S. W. 852; Sanely v. Crepenhoft, 1 Neb. (Unoff.) 8, 95 N. W. 352.
6. 4 Wigmore, Evidencr, Sec. 2485 et seq.; 2 Chamborlaync, Evidence, g 936 et seq.; Phipson, Evidence (4th Ed.) 22 et seq.
7. Arnett v. Handley, 185 Ala. U9, 64 So. 66; Bell v. Pleasant. 145 Cal. 410, 104 Am. St. Rep. 61, 78 Pac. 957; Kowalsky v. Kimberlin, 173 Cal. 506, 160 Pac. 673; Johansen v. Looney, 30 Idaho, 123, 163 Pac. 303; Easter v. Severin, 64 Ind. 375; Fields v. Stamper, 177 Ky. 323, 197 S. W. 919; Molony v. Rourke, 100 Mass. 190; Upton v. Betts, 59 Neb. 724, 82 N. W. 19; Holland v. Brown, 140 N. Y. 344, 35 N. E. 577 (semble); Newton v. Mclean, 41 Barb. (N. Y.) 285; Wilkins v. Anderson, 11 Pa. 399; Giles v. Hunter, 103 N. C. -, 194, 9 S. E. 549; Meador Bros. v. Hines, - Tex. Civ. App. -, 165 S. W. 915; Rogers v. Houston, 94 Tex. 403, 60 S. W. 869; Teagarden v. R. B. Godley Lumber Co., 105 Tex. 616, 154 S. W. 973; Crane's Nest Coal Co. v. Virginia Iron, Coal & Coke Co., 108 Va. 862, 62 S. E. 954, 1119; Scott v. Farnan, 55 Wash. 336; Cassiday Fork Boom & Lumber Co. v. Terry, 69 W. Va 572, 73 S. E. 278. See Daniell, Chancery Pleading and Practice (7th
Fd.) 494; Langdell, Equity Pleading (1st Ed.) Sec.Sec. 111, 141, 142; Martin v. Carlisle, 46 Okla. 268, 148 Pac. 833 (semble).
8. Langdell, Op. Cit. Sec.Sec. 141, 142.
9. Ante, Sec. 103(b).
10. Bates v. Bigelow, 80 Ark. 86, 96 S. W. 125; Smith v. J. R. Newberry Co., 21 Cal. App. 432, 131 Pac. 1055; Koebel v. Doyle, 256 111. 610, 100 N. E. 154; Garritson v. Bray, 277 111. 158, 115 N. E. 195; Hume v. Franzen, 73 Iowa, 25, 34 N. W. 490; Hannan v. Seidentopf, 113 Iowa, 658, 86 N. W. 44; Ludo-wese v. Amidon, 124 Minn. 288, 144 N. W. 965; Connecticut Mut. Life Ins. Co. v. Smith, 117 Mo. 261, 38 Am. St. Rep. 656, 22 S. W. 623; Stephenson v. Kilpat-rick, 166 Mo. 262, 65 S. W. 773; Upton v. Betts, 59 Neb. 724, 82 N. W. 19; Gallatian v. Cunningham, 8 Cow. (N. Y.) 382; Atlanta & C. A. L. R. Co. v. Victor Mfg. Co., 93 S. C. 397, 76 S. E. 1091; Balfour v. Hopkins, 93 Fed. 570; Tobey v. Kilbourne, 222 Fed. 760, 138 C. C. A. 308;
In some jurisdictions one who claims priority as a bona fide purchaser over an earlier conveyance by reason of its absence from the records, has the burden of showing that he is such a purchaser, that is, that he paid value without notice of such unrecorded conveyance.11 The theory of these decisions appears ordinarily to be that, the conveyance, though not recorded, being perfectly valid as a conveyance of the legal title, and insufficient as such only as against purchasers for value without notice, it is for the person seeking to bring himself within this privileged class to show that he is properly a member thereof. In a considerable number of states, on the other hand, one claiming under an unrecorded conveyance is regarded as having the burden of showing that a subsequent purchaser had notice of such conveyance,12 a view which has ocsee Boone v. Chiles, 10 Pet. (U. S.) 177, 211, 9 L. Ed. 3S8; Atty. Gen. v. Biphosphated Guano Co., 11 Ch. Div. 336.