Parker v. Conner.

Possession. The general rule is that possession of real estate is constructive notice to all the world of the rights of the party in possession. Troup v. Hurlburt, 10 Barb. 97; Tuttle v. Churchman, 74 Ind. 311; Perkins v. Swank, 43 Miss. 349; Hawley v. Morse, 33 Mo. 287; Jefferson v Jefferson, 96 Ill. 551; Bratling v. Brashim, 102 id. 441; Warren v. Richmond, 53 id. 52; Strong v. Shea, 83 id. 575; Hommel v. Devinney, 39 Mich. 522; Russell v. Sweezey, 22 id. 235; Rogers v. Jones, 8 N. H. 264; Patton v. Hollidaysburgh, 40 Penn St. 206. The possession which will be equivalent to actual notice to a subsequent purchaser must be an actual open and visible occupation inconsistent with the title of the apparent owner by the record; not equivocal, occasional, or for a special or temporary purpose. Constructive possession will not suffice. Brown v. Volkenning, 64 N. Y. 76, 83; Page v. Waring, 76 id. 463; Atwood v Bears, 47 Mich. 72; Smith v. Jackson, 76 Ill. 254; Bingham v. Kirkland, 34 N. J. Eq. 229; Cabeen v. Breckenbridge, 48 Ill. 91; Ely v. Wilcox, 20 Wis. 523; Moyer v. Hinman, 13 N. Y. 180; Trustees v. Wheeler, 61 id. 88; Greer v. Higgins, 20 Kans. 420; Meehan v. Williams, 48 Penn St. 238; Noyes v. Hall, 97 U. S. 34. But such possession does not necessarily constitute constructive notice of the existence of a title in the party in possession, as the presumption of notice arising from it may be rebutted. Roger v. Jones, 8 N. H. 284. The possession of a tenant is sufficient notice of bis landlord's title to put a person dealing with the property on inquiry. O'Rourke v. O'Conner, 39 Cal. 442. Actual occupancy by a purchaser under a contract of sale is constructive notice to a mortgagee of his rights Trustees v. Wheeler, 61 N. Y. 88; Braman ▼. Wilkinson, 3 Barb 151. When a vendor remains in possession after making his deed, a purchaser from his grantee has a right to rely upon the deed of the vendor in possession as a complete answer to any inquiry which his possession would suggest. Bingham v. Kirkland, 34 N. J. Eq. 229. The fact that a grantor remains in possession of his land after conveying it away by a deed absolute on its face is not constructive notice, to purchasers of a judgment against the grantee, of the grantor's right to have his deed treated as a mortgage. Tuttle v. Churchman, 74 Ind. 311. Actual possession by a cestui que trust is constructive notice to a purchaser that there is some claim, title or possession of the property adverse to the vendor. Johns v. Norris, 28 N. J. Eq., 147. For the purpose of putting purchasers upon inquiry as to the rights of third persons, the husband's possession of the wife's real estate is the possession of the wife. Fassett v Smith, 23 N. Y. 252. The principle of constructive notice will not apply to an uninhabited and unfinished dwellinghouse. Brown v. Volkenning, 64 N. Y. 76.

Recitals. A purchaser is chargeable with notice of everything that appears on the face of the deeds constituting his chain of title. Burch v. Carter, 44 Ala. 115; Pringle v. Dunn, 37 Wis. 449; Cordova v. Hood, 17 Wall. 1. But he is not bound to inquire into collateral circumstances. Burch v. Carter, 44 Ala. 115. A recital in a deed forming a link in the chain of title of any facts, which should put a subsequent grantee or mortgagee upon inquiry, and cause him to examine other matters by which a defect in the title would be disclosed is constructive notice of such defect Acer v. Westcott, 46 N. Y. 384; Cambridge Bank v. Delano, 48 id. 326 The rule that a grantee always takes with constructive notice of whatever appears in the conveyances constituting his chain of title applied to a prior unrecorded mortgage referred to in the second mortgage. Baker v. Mather, 25 Mich. 51. Where the defendant claims title through a deed which contains a covenant to reconvey, he is chargeable with constructive notice of such covenant. Van Doren v. Robinson, 16 N. J. Eq. 256. One knowing of a deed containing a reference to a registered title bond, held to be affected with constructive notice of the contents of the deed. Payne v Abercrombie, 10 Heisk. 161. See Willis v. Gay, 48 Tex. 463: s c., 26 Am. Rep. 328.

Records. The record of a deed is notice only to those who are bound to search for it. It is not a publication to the world at large. Maul v Rider, 59 Penn. St. 167. From the time a conveyance is delivered to the clerk for record it is notice to all subsequent purchas ers. Mut. Life Ins. Co. v. Dake, 87 N. Y. 257; Poplin v. Mundell, 27 Kans. 138; Brookes' Appeal, 64 Penn. St. 127; Pringle v. Dunn, 37 Wis. 449; Clader v. Thomas, 89 Penn. St. 343; Polk v. Cosgrove, 4 Biss. 437; Oats v. Walls, 28 Ark. 244. A transfer upon its face as spread upon the record must show a compliance with the requirements of the statute in order to give it effect as constructive notice; parol evidence cannot be brought

Parker v. Conner.

in aid of any defect. Wood v. Cochrane, 39 Vt. 544. The record of a deed not executed in conformity with the recording laws is constructive notice to no one. Galpin v. Abbott, 6 Mich. 17; Isham v. Bennington, 19 Vt. 230; Loughridge v. Brookland, 32 Miss. 546; Cogan v. Cook, 22 Minn. 137; Wood v. Cochrane, 39 Vt. 541; Bishop v. Schneider, 46 Mo. 472; Van Thornilley v. Peters, 26 Ohio St. 471; Green v. Drinker, 7 Watts & Serg. 440; Kaufelt v. Bower, 7 Serg. & Rawle, 64. But see Watson v. Wells, 5 Conn. 468; Brown v. McCormick, 28 Mich 215. A memorandum attached to a deed and entered on the margin of the record, but not acknowledged, is not constructive notice to a purchaser. McKean v. Mitchell, 35 Penn. St. 269. Where a recorded instrument shows upon its face that the acknowledgment was taken by a party in interest, it is improperly recorded and is no constructive notice; but when it is fair upon its face it is the duty of the register to receive and record it, and its record operates as notice notwithstanding that there may be some hidden defect. Yet a conveyance, though improperly acknowledged, is good as between the parties or those purchasing with actual notice. Stevens v. Hampton, 46 Mo. 404. The recording of an assignment as a notice to subsequent mortgagees is not invalidated by proof that the acknowledgment was taken in New Jersey by a notary public of New York county, when his certificate was in due form and purported to have been taken in New York Hulburn v. Hammond, 13 Hun, 474. A party acquires no rights by recording a paper not entitled to be recorded. Gillig v. Maas, 28 N. Y. 181; Brown v. Budd, 2 Ind. 442; Dutton v. Ives, 5 Mich. 515. But knowledge of such a deed may operate as actual notice. Musgrove v. Bonser, 5 Or. 313. The contents of a deed are to be correctly spread upon the record. Terrell v. Andrew, 44 Mo. 309. The registry of a mortgage given to secure $3,000, but by the mistake of the clerk registered for $300, is notice to subsequent bona fide purchasers, to the extent only of the sum expressed in the registry. Frost et al. v. Beekman, 1 Johns. Ch. 288. Where a mistake is made in recording a mortgage in extenso, by omitting to copy the attestation thereof, held, that the registry was not constructive notice to subsequent mortgagees for value. Pringle v. Dunn, 37 Wis. 449. Recording a mortgage in book of deeds is not duly recording it, within the meaning of the recording acts, so as to be constructive notice to a subsequent mortgagee in good faith or to affect a conveyance subsequently but duly recorded. Gillig v. Maas, 28 N. Y. 192. Recording a mortgage in the records of assignments of mortgages is not constructive notice. Parsons v. Lent, 34 N. J. Eq. 67, 70; Conklin v. Hinds, 16 Minn. 457; contra, Clader v. Thomas, 89 Penn. St. 343.

Where the recorder by mistake enters the name of another person as the grantor in the deed in place of the true grantor the same is not duly recorded. Jennings v. Wood, 20 Ohio, 261; Howev. Thayer, 49 Iowa, 154. The entry of a conveyance out of the order of its date and upon a page which should have contained a mortgage several years antecedent in execution is not notice to a subsequent mortgagee in good faith. N. Y. Life Ins. V. White, 17 N. Y. 469.

The record of a deed or mortgage is constructive notice only of what appears on the face of the instrument as recorded. Battenhausen v. Bullock, 11 Bradw. (Ill.) 665; Galway v. Machon, 7 Neb. 285; Barnard v. Campau, 29 Mich. 162, 164, and cases cited; Gate's Exr. v. Morris, 29 N. J. Eq. 222; affirmed 30 id. 285. Nor of all which might be ascertained by inquiries suggested by the record. Taylor v. Harrison, 47 Tex. 542. In Riggs v. Boylan, 4 Biss. 445, it was held that a grantee's rights are protected even though the recorder actually records only a portion of his deed. The index is not an essential part of the record for the purposes of notice; and a mortgage duly recorded though not indexed is constructive notice, even against a bona fide purchaser or mortgagee who dealt on the faith of finding no incumbrance in the index. Mut Life Ins. Co. v. Dake, 1 Abb. N. C. 381; Board, etc., v. Babcock, 5 Oreg. 472; Chatham v. Bradford, 50 Ga. 327. And in this case the court say: "When a deed has been duly copied upon the record book it is difficult to say that it is not recorded. The steps to be taken for easy reference, as it seems to us, are matters with which the owner of the deed has nothing to do. He has caused his deed to be copied upon the public books, that is all the law requires of him, and that is all he can do. Where an assignment of the interest of the owner of a leasehold estate in fee is presented to and left with the clerk of the proper county to be recorded, the failure of the clerk to properly index it, or errors made by him in transcribing it, will

Wadsworth v. Lyon.

not prejudice the rights of the assignee or deprive him of the privileges conferred upon him by the recording acts. Bedford v. Tupper, 30 Hun, 174, 176. A party who suffers through the neglect of the clerk to properly index a conveyance must look to the clerk and his sureties for redress. Board, etc., v. Babcock, 5 Oreg. 472. The registry of a conveyance of an equitable title is notice to a subsequent purchaser of the same interest or title from the same grantor, but is not notice to a purchaser of the legal title from the person who appears by the record to be the real owner. Tarbell v. West, 86 N. Y. 280. Constructive notice from the record applies to equitable as well as to legal estates. Digman v. McCollum, 47 Mo. 372. Actual knowledge of a prior unrecorded deed is equiva lent to the constructive notice operated by registration. Blaine v. Stewart, 2 Iowa, 378 ; Bayles v. Young, 51 Ill. 127; Maxwell v. Brooks, 54 Ind. 98; Lieman, Matter of, 32 Md. 225. An incorrect registration cannot avail a party who is not misled thereby. Gaskill v. Badge, 3 Lea (Tenn.), 144. The partial or total destruction of a record book containing a deed does not affect the record of it as legal notice. Myers v. Buchanan, 46 Miss. 397; Gammon v. Hodges, 73 Ill. 140; Shannon v. Hall, 72 id. 354. If before the purchase of real estate the purchaser, having received information that a transcript of a judgment against the owner had been filed, goes to the proper officers, and in good faith causes an examination of the records to be made, and they disclose the fact that there is no judgment lien, he is justified in acting upon the belief that there is none. Bell v. Davis, 75 Ind. 314; Rogers v. Jones, 8 N. H. 264; Simon v. Kaliske, 1 Sweeny, 304; Hoyt v Sheldon, 3 Bosw. 267. A record of a mortgage prior to the acquisition of title by the mortgagor is constructive notice to a subsequent purchaser in good faith, and under the recording act and gives it priority to his title. Tefft v. Munson, 57 N. Y. 97. Where a deed is not delivered to the grantee therein named until after it has been recorded by the grantor, the grantee takes the deed and its registration with the same effect thenceforward as if recorded by him at the date of its delivery. Jones v. Roberts, 65 Me. 273.

An unrecorded deed is not constructive notice to the subscribing witness. Michie, 31 Gratt. 149; s. c., 31 Am. Rep. 722.

Vest v.

Cases must plead and show. Upon the question whether one took a deed without, notice of a prior unrecorded one, the burden of proof is upon the one alleging bad faith. Ryder v. Rush, 102 Ill. 338. One buying land mortgaged of record will take no benefit from declarations made to him by the mortgagor, that the mortgage has been paid. Pratt ▼. Pratt, 96 Ill. 184. The record of an assignment of a mortgage is constructive notice as against a grantee of the mortgagor, that the mortgagee can no longer deal with the mortgaged interests, and a subsequent discharge or release of the lien of the mortgage executed by him is invalid. Belden v. Meeker, 47 N. Y. 307; Smyth v. Knickerbocker, etc., 84 id. 589.

WADSWORTH V. LYON.

(93 N. Y. 201.)

Mortgage -- conveyance of mortgaged land — remedy on bond.

A mortgagor sold the mortgaged premises, receiving the full consideration, and no provision being made for the assumption or payment of the mortgage. The mortgagee subsequently foreclosed, and bid off the lands for more than the amount due. The sale was not completed, and he never paid any part of his bid but afterward purchased and received a deed of the land, and paid the foreclosure judgment, and received an assignment of it and of the bond. In a suit by him upon the bond, held, that he was entitled

to recover.

A

Wadsworth v. Lyon.

CTION on a bond. The opinion states the facts. The defendant had judgment below.

George Wadsworth, for appellant.

Grover Cleveland and Samuel Hand, for respondents.

EARL, J. On the 1st day of May, 1868, Bridget O'Day and her husband sold and conveyed certain lands to the defendant, Louisa L. Lyon, and to secure a part of the purchase-money, she and her husband, James S. Lyon, executed to Mrs. O'Day a bond conditioned to pay the sum of $4,000, and Mrs. Lyon executed and delivered to Mrs. O'Day her mortgage on the lands as collateral security for the payment of the bond. On the 12th of June, 1868, Mrs. O'Day assigned the bond and mortgage to one Fellows, guaranteeing payment thereof. On the 17th day of January, 1873, Mrs. Lyon, by a deed, in which her husband joined with her as grantor, conveyed the lands to Mrs. Beck, wife of John Beck, which deed contained a covenant of warranty on the part of Mr. Lyon alone. The consideration of the conveyance was $10,000, which was the full consideration for the lands. Mrs. Beck did not assume the payment of the mortgage to Mrs. O'Day, and the conveyance was not subject to the payment of the mortgage, which was in no way mentioned in the deed.

After this conveyance Mr. and Mrs. Lyon remained the principal debtors, and the lands were simply security for the debt due upon the bond. Mrs. Beck owned the lands charged with the debt of Mr. and Mrs. Lyon, which as between her and them, they were bound to pay. Barnes v. Mott, 64 N. Y. 397, 402; s. c., 21 Am. Rep. 625; Thomas on Mortgages, 92, 94. The primary liability of the obligors to pay the bond could not be shifted to the lands, except by a conveyance of the lands subject to the payment of the mortgage; or by deducting the bond from the consideration of the conveyance,' or by some agreement between the grantors and grantee, charging the primary liability upon the grantee or the lands, leaving, as bebetween them, the grantors to stand as mere sureties for the bonded debt. If while Mrs. Beck owned the lands she had been compelled to pay the debt secured by the mortgage, she could have recovered the amount paid by her of the principal debtors, or she could have claimed subrogation to the rights of the holder of the

Wadsworth v. Lyon.

mortgage, at the time of payment, and then enforced the bond against the principal debtors. She would have had these remedies, not because of the deed to her, nor by virtue of any implied cove-. nant therein, but because her lands standing as security for the debt of Mr. and Mrs. Lyon, she had been compelled to pay the debt to save her lands. It matters not that the deed was a quit-claim deed. That did not pay the debt of the grantors. It conveyed the lands, it is true, subject to the mortgage, necessarily subject to it, because it was a lien upon the lands, but subject to it only as security for their debt. Until she paid the debt, or her lands were taken to pay it, she would suffer no damage, being in the same condition as any surety for a principal debtor. But the moment she paid the debt to save her lands, she would have a cause of action, not on account of any effect attributable to the deed, but because the principal debtors failed to pay their debt, and she, as surety in virtue of her ownership of the lands, had paid it. The principles of law, applicable to quit-claim deeds, would have nothing whatever to do with the case; but the principles of law, governing the relations between principal and surety, would control.

On the 8th of April, 1874, one Stohl recovered a judgment in the Supreme Court against John Beck, for upward of $6,000, and on the 16th day of October, thereafter he commenced an equitable action against Mr. and Mrs. Beck to charge that judgment upon the lands, on the ground that they had been bought and paid for with the money of Mr. Beck.

On the 1st of December, 1874, Fellows began an action to foreclose the mortgage, and for judgment for deficiency, after applying upon the bond and mortgage the proceeds of the sale of the lands; and on the 25th of March, 1875, he recovered judgment by default, directing a sale of the lands; and the judgment also contained a provision for the entry of judgment against Mr. and Mrs. Lyon for any deficiency which should be shown by the sheriff's report of sale to exist after applying upon the bond and mortgage the proceeds of the sale.

On the 20th of July, 1875, Fellows assigned the bond, mortgage and judgment to one Caldwell, and on the 15th day of August, thereafter, the sheriff offered the lands for sale by virtue of the foreclosure judgment, and the plaintiff bid at the sale some more than the amount due upon the judgment, and the lands were struck off to him; but he never paid any part of the bid, and it was never demanded of