favor of the defendants and judgment was entered accordingly. The plaintiff appeals from the judgment and from an order denying her motion for a new trial.

The complaint in substance alleges that prior to September 27, 1891, the defendant, Mary E. Pleasant, held the legal title to the property as trustee for the use and benefit of the plaintiff; that on that day she executed a deed to the plaintiff conveying to her the property in question, but that said deed had never been recorded; that afterward, on February 4, 1897, with the intention to cheat and defraud the plaintiff, the said Mary E. Pleasant executed another deed purporting to convey the same property to the defendant Solomons, which deed was duly recorded, and that subsequently by mesne conveyances, the title acquired by Solomons under said deed became vested in the defendant, Leo Block. It is further alleged that the defendant Solomons and each of his successors, including the defendant, Leo Block, took their respective deeds with knowledge of the fact that the land was the property of plaintiff. The court found that Solomons and each of his grantees took their respective conveyances without any notice, knowledge or information whatever, as to the claim, right title or interest of the plaintiff. It is contended by the plaintiff that this finding is not supported by the evidence.

It is not seriously contended by the defendants that there is any affirmative evidence to the effect that they, or either of them, received their respective deeds without notice of the rights of the plaintiff, and upon an examination of the evidence we find nothing in support of such finding. The claim of the defendants is, that the burden of proof to show notice 413 of plaintiff's right on the part of Solomons and his successive grantees rests on the plaintiff, and that, in the absence of evidence on the subject, the court necessarily made the finding that they took without such notice. In this we think the defendants are mistaken and the court erred. It has been repeatedly decided by this court that where one holding under an unrecorded deed brings an action involving the respective titles to the land against a subsequent grantee under a deed which is first recorded, the first grantee will prevail, unless the second grantee not only shows the making and recording of his deed, but also that he made his purchase and paid the price in good faith, and without knowledge of the rights of the previous grantee. The question depends on the effect of the rule embodied in sections 1214 and 1217 of the Civil Code, which are as follows: "1214. Every conveyance of real property, other

than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such conveyance shall have been duly recorded prior to the record of notice of action. . . 1217. An unrecorded instrument is valid as between the parties thereto and those who have notice thereof." The first case on the subject is Long v. Dollarhide, 24 Cal. 218, which was decided before the enactment of the code. It is there held that where a subsequent buyer whose deed is recorded claims title against a previous grantee under an unrecorded deed, the burden is upon the subsequent buyer to prove that he "is a purchaser in good faith and for a valuable consideration." The rule was laid down thus in Eversdon v. Mayhew, 65 Cal. 167, 3 Pac. 644: "To entitle a party to protection as such a purchaser, he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith, and without notice, actual or constructive, prior to and down to the time of its payment." The same doctrine has been approved and followed by this court in the following cases: Landers v. Bolton, 26 Cal. 419; Isenhoot v. Chamberlain, 59 Cal. 639; Wilhoit v. Lyons, 98 Cal. 413, 33 Pac. 325; County Bank of San Luis Obispo v. Fox, 119 Cal. 64, 51 Pac. 11; Beattie v. Crewdson, 124 Cal. 579, 57 Pac. 463; Alcorn v. Buschke, 133 Cal. 658, 66 Pac. 15; Kenniff v. 414 Caulfield, 140 Cal. 45, 73 Pac. 803; California C. F. Assn. v. Stelling, 141 Cal. 719, 75 Pac. 320. It also prevails in the United States courts: Boone v. Chiles, 35 U. S. (10 Pet.) 211, 9 L. ed. 388. In view of these numerous decisions it must be conceded that the rule contended for by the plaintiff is firmly established, notwithstanding one or two cases which seem to state the opposite rule. In Fair v. Stevenot, 29 Cal. 487, the opinion seems to be written upon the assumption that the burden in such cases was on the claimant under the prior unrecorded deed to show notice of his right to the second grantee, but there is nothing in the decision upon that exact point, and it cannot be taken as a statement of the doctrine. In Smith v. Yule, 31 Cal. 184, 89 Am. Dec. 167, it is said that notice, either actual or constructive, to the second grantee must be clearly shown before the claimant under an unrecorded deed can prevail against a subsequent grantee for a valuable consideration. The ground of this position, as stated, is, that if a second grantee, knowing of the previous conveyance, should nevertheless purchase the

favor of the defendants and judgment was entered accordingly. The plaintiff appeals from the judgment and from an order denying her motion for a new trial.

The complaint in substance alleges that prior to September 27, 1891, the defendant, Mary E. Pleasant, held the legal title to the property as trustee for the use and benefit of the plaintiff; that on that day she executed a deed to the plaintiff conveying to her the property in question, but that said deed had never been recorded; that afterward, on February 4, 1897, with the intention to cheat and defraud the plaintiff, the said Mary E. Pleasant executed another deed purporting to convey the same property to the defendant Solomons, which deed was duly recorded, and that subsequently by mesne conveyances, the title acquired by Solomons under said deed became vested in the defendant, Leo Block. It is further alleged that the defendant Solomons and each of his successors, including the defendant, Leo Block, took their respective deeds with knowledge of the fact that the land was the property of plaintiff. The court found that Solomons and each of his grantees took their respective conveyances without any notice, knowledge or information whatever, as to the claim, right title or interest of the plaintiff. It is contended by the plaintiff that this finding is not supported by the evidence.

It is not seriously contended by the defendants that there is any affirmative evidence to the effect that they, or either of them, received their respective deeds without notice of the rights of the plaintiff, and upon an examination of the evidence we find nothing in support of such finding. The claim of the defendants is, that the burden of proof to show notice 413 of plaintiff's right on the part of Solomons and his successive grantees rests on the plaintiff, and that, in the absence of evidence on the subject, the court necessarily made the finding that they took without such notice. In this we think the defendants are mistaken and the court erred. It has been repeatedly decided by this court that where one holding under an unrecorded deed brings an action involving the respective titles to the land against a subsequent grantee under a deed which is first recorded, the first grantee will prevail, unless the second grantee not only shows the making and recording of his deed, but also that he made his purchase and paid the price in good faith, and without knowledge of the rights of the previous grantee. The question depends on the effect of the rule embodied in sections 1214 and 1217 of the Civil Code, which are as follows: "1214. Every conveyance of real property, other

than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless such conveyance shall have been duly recorded prior to the record of notice of action. 1217. An unrecorded instrument is valid as between the parties thereto and those who have notice thereof." The first case on the subject is Long v. Dollarhide, 24 Cal. 218, which was decided before the enactment of the code. It is there held that where a subsequent buyer whose deed is recorded claims title against a previous grantee under an unrecorded deed, the burden is upon the subsequent buyer to prove that he "is a purchaser in good faith and for a valuable consideration." The rule was laid down thus in Eversdon v. Mayhew, 65 Cal. 167, 3 Pac. 644: "To entitle a party to protection as such a purchaser, he must aver and prove the possession of his grantor, the purchase of the premises, the payment of the purchase money in good faith, and without notice, actual or constructive, prior to and down to the time of its payment." The same doctrine has been approved and followed by this court in the following cases: Landers v. Bolton, 26 Cal. 419; Isenhoot v. Chamberlain, 59 Cal. 639; Wilhoit v. Lyons, 98 Cal. 413, 33 Pac. 325; County Bank of San Luis Obispo v. Fox, 119 Cal. 64, 51 Pac. 11; Beattie v. Crewdson, 124 Cal. 579, 57 Pac. 463; Alcorn v. Buschke, 133 Cal. 658, 66 Pac. 15; Kenniff v. 414 Caulfield, 140 Cal. 45, 73 Pac. 803; California C. F. Assn. v. Stelling, 141 Cal. 719, 75 Pac. 320. It also prevails in the United States courts: Boone v. Chiles, 35 U. S. (10 Pet.) 211, 9 L. ed. 388. In view of these numerous decisions it must be conceded that the rule contended for by the plaintiff is firmly established, notwithstanding one or two cases which seem to state the opposite rule. In Fair v. Stevenot, 29 Cal. 487, the opinion seems to be written upon the assumption that the burden in such cases was on the claimant under the prior unrecorded deed to show notice of his right to the second grantee, but there is nothing in the decision upon that exact point, and it cannot be taken as a statement of the doctrine. In Smith v. Yule, 31 Cal. 184, 89 Am. Dec. 167, it is said that notice, either actual or constructive, to the second grantee must be clearly shown before the claimant under an unrecorded deed can prevail against a subsequent grantee for a valuable consideration. The ground of this position, as stated, is, that if a second grantee, knowing of the previous conveyance, should nevertheless purchase the

property and attempt to assert title thereto such conduct would constitute fraud on his part, and that the case comes under the rule that fraud is never presumed, but must always be proven. This is the only case which states the rule contrary to the numerous decisions above cited, and it must be considered as overruled. There is a line of cases which the defendants contend establish a contrary rule, but upon examination it will be seen that there is a clear distinction between them and the case at bar. Thus it has been invariably held that in a suit by a beneficiary to enforce a resulting or constructive trust against a grantee of the trustee, in cases where the trustee held under a deed purporting to convey the legal title, without terms indicating the trust, it was incumbent upon plaintiff not only to prove the facts establishing a trust, but also to prove that the grantee of the trustee took his conveyance with notice of the equities of the plaintiff. In Wyrick v. Weck, 68 Cal. 8, 8 Pac. 522, which was a case of this character, the court said: "It is said that the defense of a bona fide purchaser without notice is in the nature of new matter, the burden of proving which is upon the defendant. Ordinarily this is 30." And the court proceeds to show that in that particular kind of cases the rule is different. The same 415 proposition is stated and the distinction noted in Tillaux v. Tillaux, 115 Cal. 674, 47 Pac. 691, and in Warnock v. Harlow, 96 Cal. 298, 31 Am. St. Rep. 209, 31 Pac. 166. This principle is also applied in cases of suits by a purchaser under a judgment and execution sale against a grantee of the judgment debtor, where the plaintiff claims that the conveyance by the debtor to the grantee was fraudulent and void as against creditors: Casey v. Leggett, 125 Cal. 666, 58 Pac. 264. In such cases the burden is on the creditor to prove the fraudulent intent of the debtor in executing the deed. If thereupon the grantee proves that he paid a valuable consideration, the burden is then imposed on the creditor to prove notice of such fraudulent intent to the grantee at the time of his purchase, or before payment of the price. The underlying reason for this rule in these cases is, that as the debtor or trustee, as the case may be, holds the legal title at the time of the conveyance, the legal effect of his deed is to convey that title to his grantee, and thus there is established a legal condition which inures to the benefit of the grantee and cannot be changed in equity, except by proof of circumstances to show a superior equity in the party who disputes it. Equity follows the law, and a legal condition or status being once established, the burden of proof of facts neces