#### George Warnick, appellee, v. Silas Latta, appellant.

Filed April 16, 1895.

No. 5514.

Quieting Title: Cancellation of Contract : Review: Sufficiency of Evidence. On this appeal the only question presented being the sufficiency of the evidence to sustain the decree of the district court, and a full consideration of all the proofs being found to justify such decree, it is affirmed.

Appeal from the district court of Phelps county. Heard below before Beall, J.

*C. H. Roberts*and *E. M.*Palmer, for appellant.

*J. R. Patrick, contra.*

Ryan, C.

In the district court of Phelps county this action was begun for the purpose of removing from the title of plaintiff to certain land a cloud alleged to exist from the records of that county disclosing the following contract, to-wit:

> “We, L. D. Vanderhoof and J. H. Johnson, being duly Appointed and authorized agents of Mrs. B. Bartlett to sell N. W. J of sec. 28, town 6 north, of range 18 W., having been appointed by Mrs. Bartlett in writing, and After request to sell the same for thirty-eight hundred dollars, we have sold the said tract of land to S. A. Dravo and Silas Latta on the first day of June, 1887, for thirty-eight hundred dollars, all cash, and payments to suit Mrs. Bartlett, having received from Dravo and Latta fifty dollars and their agreement to settle the rest as soon as a deed is delivered to Vanderhoof & Johnson, Dravo and Latta assuming mortgage, but mortgage to be deducted from the original purchase price; and the said Dravo and Silas Latta agree to purchase said land upon the terms heretofore mentioned *808and pay said sum of thirty-eight hundred dollars, assuming said mortgage as a part thereof.

> “Mbs. B. Bartlett,

> “ By Yanderhooe *&*Johnson,

> *“Her Agents.*

> “S. A. Dravo *&*Silas Latta.

> “Dated June 1, 1887.”

There were filed separate answers by S. A. Dravo and Silas Latta. In substance, the answer for S. A Dravo was. a disclaimer of any interest in himself by reason of having received a promissory note for two hundred dollars from Mrs. Bartlett in consideration of releasing her from the-above contract. In addition to the above averments of the answer of Dravo, he, at considerable length, disclaimed that, in settling and receiving the $200 note, he in any way represented or concluded Mr. Latta. By the answer of Laltai. it was admitted that the contract was made in the terms-above set out and had been filed for record in the county clerk’s office of Phelps county, and that plaintiff had received a warranty deed from Mrs. Bartlett, but it was alleged that the deed was received with actual and constructive notice of the rights of Latta. There was also an offer to pay $1,900 to Mrs. Bartlett, and a prayer for a decree: requiring conveyance to Silas Latta. There was a decree in favor of George Warnick as against Latta, who alone appeals.

There is no room for question that the decree quieting all claim of the appellant was right, for it was satisfactorily shown that Warnick purchased without actual notice of the existence of the above copied contract. It is scarcely necessary to observe that, without being witnessed or acknowledged, this instrument should not have been recorded, and. that if, nevertheless, the county clerk did record the same, the mere fact that without authority it was placed upon the record would not constructively impart notice of its contents. It scarcely admits of doubt that the payment of *809the $200 consideration to Dravo by note was made and received in settlement of the claims made both by Dravo and Latta, and that the present litigation is due solely to the fact that Dravo now retains as his own the entire proceeds of the note turned out to him. In effecting the transfer of title from Mrs. Bartlett to Mr. Warnick, Dravo made out the necessary deed and, in advance, passed upon the title which thereby would be vested in Mr. Warnick. The existence upon the records of the above contract he regarded as of little consequence, for, before this time Latta had withdrawn the earnest money which he had paid to Mrs. Bartlett’s agents above named, and as Dravo assumed, the rights of Latta thereby ceased to exist. After this action was begun Dravo withdrew his proportion of the earnest money deposited with the agents of Mrs. Bartlett, and thenceforward he has done all he could to enable Mr. Latta to obtain an amount equal to that which he himself had received. In view of all the facts disclosed in evidence, we are at a loss to understand why any portion of the costs was taxed against Warnick. In this court he has not complained, doubtless because he wished to avoid delays, yet this omission precludes relief. When the case is remanded to the district court for further proceedings it will not be inappropriate, neither will it be too late, to move for a retaxation of costs, if such course is deemed advisable. The, judgment of the district court is

Affirmed.