Beatie v. Butler

Scott, Judge,

delivered the opinion of the court.

1. The argument that the death of Beatie should have suspended all proceedings under the mortgage, in analogy to the suspension of all process of execution under the administration *319 law, against tbe estates of decedents, cannot be maintained. The law may suspend its own process. As it gives the process, it may regulate it. But deeds of trust and mortgages, with the power of sale, arise from the consent and agreement of parties, and there is no propriety in depriving creditors of the fruits of their foresight and caution. The statute of the 25th January, 1847, is an answer to the argument. That statute, notwithstanding the death of the grantor, in a deed of trust recognizes a right of sale in the trustee, though its exercise is postponed for nine months after the death of the maker of the deed. At this term of the court, in the case of Chase, adm'r, v. Grant, adrrv'r, we have held that the death of a mortgagor did not suspend nor defeat the proceedings to foreclose a mortgage, given by the act concerning mortgages.

2. We do not see the force of the argument that the mortgage and the agreement to postpone the sale, are to be regarded as one instrument. It may be so ; yet the registry act is to be considered. If it requires an instrument to be recorded, and it is not done, the party guilty of the negligence must suffer the consequences. Beatie had his agreement in his pocket, and if he failed to put it upon record, it was his own folly. An innocent purchaser cannot be made to suffer for his neglect. The deed conveyed to Butler the land, with a power of sale. As the estate was in him entirely, it is impossible to see how the death of Beatie could affect his power over it. The distinction! between the mere grant of a power and of an estate is obvious to every member of the profession, and is recognized on alii occasions. Where there is a mere grant of power, the death of the grantor of the power extinguishes it. It cannot be exerted-,, because when exercised, the act relates back to the date of the-power; and as the author of the power is dead, he can do no-act. To give it effect, would produce the absurdity of making, a dead man do a valid and binding act. But, when the estate-is granted, coupled with a power, then it is as though it belonged to the grantee, and was his own property. His conveyance at law is binding and effectual, whether he conforms to. *320 tbe limitations imposed on tbe exercise of tbe power or not» But courts of chancery will, in such cases, compel tbe observance of the restrictions imposed on tbe trustee ; and if a vendee is cognizant of a violation of the trust, or is guilty of laches, in not informing himself of restrictions on the power, when he should have done it, he must suffer the consequences. But if the owner of an estate will convey it absolutely, with a power of sale, and a sale is made to an innocent purchaser, he cannot complain that restrictions were not complied with, which he himself has failed to make known.

We do not consider that the cases in which it has been held that a sale under a satisfied judgment was void, are in point. Here, there was no extinction of the debt. It remained and was unsatisfied. Neither the debt nor the power was extinguished. It was a mere question of time. The deed, as recorded, showed that the power might be exercised. If there were any impediments to its exercise, the ignorance of those impediments was caused by the laches of the grantor, and the consequences of his neglect cannot be visited on an innocent purchaser.

We do not see that the case of Jackson v. McKinney, ( 3 Wend. 234 ,) has any application to the controversy under consideration. There was no question made in that suit as to notice or the registry of deeds. The case turned entirely on the effect of a deed of conveyance under the statute of uses. That, too, was an action of ejectment.

3. We cannot perceive what the doctrine of notice has to do with this case. There is no one claiming an interest in the land in controversy but the heirs of Beatie. If Beatie were alive, could he set up any equity in himself, growing out of the fact that he had a tenant on the land ? Beatie had no equity as against the purchaser under Butler. How can the fact that Beatie had a tenant on the land give him an equity ? If the estate conveyed by him was justly sold, so far as the purchaser, Fowler, was concerned, even admitting that notice of the tenant’s title was notice to him of Beatie’s title ; it was Beatie’s *321 title he was purchasing, and it was that which he acquired. They who insist on the fact of notice in Fowler, seem to labor under the impression that the possession of the tenant of Beatie was notice to Fowler of the existence of the agreement postponing the sale. This is an error. At most, it could only be evidence of a title or right in Beatie, and, as Fowler was purchasing Beatie’s right, conveyed by the deed to Butler, of what avail was notice of Beatie’s right ? The constant course is for the mortgagor to remain in possession of the mortgaged premises until a sale or foreclosure; and would it not be a monstrous doctrine that the possession of the mortgagor or his tenant, at the time of sale, should be constructive notice to every purchaser of every latent defect in the proceedings to foreclose the mortgage?

But the possession of the tenant, if notice at all, was only notice of his own right, not of that of his reversioner. This seems to be the settled doctrine. (2 Sug. 293. Flagg v. Mann and others, 2 Sumner, 557.) In this case, there is no tenant who is opposing the right acquired by Fowler, under the proceedings of the mortgagee to foreclose the mortgage.

4. But we do not consider that, under our statute regulating conveyances, that possession by itself can be considered as any hind of notice. If the fact of an adverse possession is brought home to a purchaser, it may be evidence to be left to the jury, with other circumstances, to receive that degree of weight to which they may think it is entitled. But mere possession of itself is no notice, either actual or constructive, under our statute of conveyances. This conclusion is arrived at, not by overthrowing English or American cases on this subject, but by giving to our statute that construction its language and spirit require.

It is a requirement of our statute that every instrument in writing that conveys any real estate, or whereby any real estate may be affected in law or equity, be recorded; and no such instrument can be valid, except between the parties thereto and such as have actual notice thereof, until it is recorded. In *322 this enactment, we may see a great advance to the measure of having all instruments in writing, affecting real estate, spread upon the record. This is done with a view to prevent strife, litigation and fraud. If one desires to purchase a tract of land and sees another in possession of it, what is more natural, under our law, than that he should go to the record and examine whether the person in possession has any deed or instrument in writing conveying to him any interest in it ? If he finds none, to what other conclusion can he come than that the person in possession has only such an estate as by the statute of frauds and perjuries may be conveyed without writing, which can only be a loase or estate at will ? Why should a purchaser go to the tenant to make inquiry of his estate in the land, when the law refers him to the record ? In England, he goes to the tenant, for the obvious reason that there, by the general law, no deed is required to be recorded. It is this adherence to English authorities, made under a system of law which has little or no resemblance to ours, in this respect, which is daily depriving us of the benefit of our registry acts. We cannot be too cautious in adopting the English law on this subject, for, except in particular localities, it has never required deeds to be recorded; while the object of ours seems to be, to have every instrument affecting real estate spread upon the public records. In England, strained implications of notice are made to correct the frauds and injustice resulting from the want of a registry act. In this state, to affect purchasers with such implications is to mislead and deceive them. They have a registry law to protect them, and after they have resorted to it, and are assured of their safety, to affect them with circumstances which are little or no evidence of notice, would be a great injustice. So long as our courts adopt the English law with respect to notice, so long they weaken the effect of our registry act, by inducing persons having instruments in writing, affecting real estate, to withhold them from record, and introducing all the evils our statute regulating conveyances was designed to prevent. In states were there is a registry act, though without the *323 stringent provision that is found in ours, it has been held that the notice of an unrecorded deed, to affect a subsequent purchaser, must be such as, with attending circumstances, will affect him with actual fraud. A notice, merely sufficient to put a party upon inquiry, is not sufficient to break in on the registry act. (Dey v. Dunham, 2 J. C. R. 182. Jolland v. Stainbridge, 3 Ves. 478.)

Our statute uses the words “ actual noticeP Now what is aetual notiee, and how is it to be proved? What is actual notice, we conceive, is a question of fact for a jury. When this is said, we suppose the matter is made sufficiently explicit. The jury will only find the facts when such evidence has been submitted to them as produces the conviction that a purchaser was really aware of the existence of the instrument which he seeks to defeat at the time of his purchase. Now what evidence is it to a jury that a purchaser had notice of the title of another in possession, when it is not shown that he was aware of the fact that there was an adverse possession. The fact that another is in possession, when known to a purchaser, may be submitted to a jury, in connection with other circumstances, to show that he had actual notice of an adverse title. But the mere fact itself, with nothing more, cannot, as we conceive, tend, in the least, to a conviction that there was any notice, such as is required by the statute. Actual notice does not require positive and certain knowledge, such as seeing the deed; but that is sufficient notice, if it be such as men usually act upon in the ordinary affairs of life. When it is shown that purchasers are affected with a knowledge of such circumstances, then the foundation is laid from which the inference of actual notice may be drawn. ( Curtis v. Mundy, 3 Metc. 405 .) In the states of Maine and Massachusetts, there are registry laws similar to those found in our code. In legislating upon the subject now under consideration, they require “ actual notice," in order to affect a subsequent purchaser, with knowledge of a prior unrecorded deed, and these words, in their acts, receive the interpretation that has been given them in the preceding observa *324 tions. In the case of Pomeroy v. Stephens, (11 Metc. 244,) the court held that, “ under the statute which provides that no unrecorded deed of an estate, in fee or for life, shall be valid except against the grantor, &c., and persons having actual notice thereof, evidence of open occupation of land, and fencing it, by a party who has an unrecorded deed therefor, is not sufficient to warrant the inference that a third person had any notice of such deed. It was said that, since this provision, no implied or constructive notice of an unregistered deed will give it validity against a subsequent purchaser ; that it was not sufficient to prove facts that would reasonably put him on inquiry. He is not bound to inquire, but the party relying on an unregistered deed, against a subsequent purchaser, must prove that the latter had actual notice of such deed.” To the same effect is the case of Stafford v. Weston, (29 Maine Rep.) where the foregoing case is cited with approbation.

What has been said in relation to the doctrine of notice, is only intended to be applied to the notice alluded to in our statute concerning conveyances, or, in other words, to that notice which is set up to affect or defeat a subsequent purchaser or incumbrancer of an estate in favor of one holding the same or asserting an interest therein, under a prior unrecorded deed or instrument of writing. The learning in relation to notice, as applied in various other transactions, sometimes being founded on equitable notions, sometimes depending on considerations of policy, is not designed to be affected by any of the foregoing remarks.

5. We cannot say that the advertisement of the sale of the premises by the mortgagor, was not made in compliance with the terms of the deed. The deed required that the property sold and the place of sale should be described in the advertisement. The property was advertised to be sold in the town of St. Joseph. It is objected that this was too vague a description of the place of sale. It is not pretended that there was any sacrifice of the property, growing out of the vagueness of the description of the place of sale. The administrator of the *325 estate of Beatie was present. The business of the town of St. Joseph was done almost entirely in two blocks. The property was sold on the premises, which adjoined these two blocks, and on the same street with them. The town contained about five hundred inhabitants at the time, and thirty or forty persons were present at the sale.

Judge Ryland concurs in affirming the judgment, though not in so much of the opinion as relates to what is notice, under the act concerning conveyances. Judge Leonard not sitting.