Opinion
01-14-1910
CHANDLEY et ux. v. ROBINSON et al.
Collins & Corbin, for complainants. James B. Pyle, for defendant Brand.
Bill by John B. Chandley and wife against William B. Robinson and others. Decree for complainants.
In this case the complainants filed a bill under the act to quiet title. They set out in their bill that they were bona fide purchasersfor value of two certain tracts of land, one of which they acquired by deed from Harriet E. Robinson and the other from Laura F. Mclntyre. They charged all of the requirements of the statute to vest jurisdiction in the court, and called upon various persons to set out any claim of title or lien that they had on the lands. As respects all other defendants than George Brand a decree pro coiifesso was taken. George Brand filed an answer, in which he set out that David T. Robinson and wife had on the Kith of January, 1890, made a mortgage to him for $2,000, which was duly recorded, and that by reason of said mortgage, which was unpaid, he had a lieu upon the premises in question. He set out that the premises in question belonged during his lifetime to one John Robinson, who died seised thereof on the 15th of August, 1895, leaving a last will and testament; that by the provisions of his will said John Robinson gave a life estate in his property to his widow, Emily E. Robinson, and devised the property, subject to said life estate, to his children, among whom were David T. Robinson, the mortgagor in the mortgage given to the said defendant Brand, and Laura F. Mclntyre and Harriet E. Robinson, the grantors of the complaiuants. He also set out that by the said will a power of sale was vested in the executrix, who was the widow. He alleges that, by reason of the terms of the will, his mortgagor, David T. Robinson, became seised of a vested right in an undivided one-ninth part of the lands of which John Robinson died seised, subject to the life estate, and to the effect of a proper execution of the power of sale given in the will, and that the said power of sale was never executed. Wherefore he claims and insists that his said mortgage is a lien upon the undivided one-ninth part of the premises described in the bill of complaint. In the decree pro confesso above alluded to there is an order contained referring the matters contained in the bill and this answer to a master, with directions to inquire into the allegations of the bill and the answer, and whether the mortgage of the answering defendant was a lien upon any part of the premises described in the bill, and, if so, what part, and what, if anything, is owing upon the said mortgage, etc.
The parties attended before the master and took testimony, and he reported, among other things, "that the depositions taken before me were directed toward the proof as to whether or not the said Emily E. Robinson, surviving executrix of the last will and testament of John Robinson, deceased, had executed the power of sale conferred on her by said last will and testament in a proper manner and for adequate consideration in the conveyance made by her to the grantors of the complainants, but no evidence has been produced before me showing that the complainants were parties to, or had knowledge of, any fraud or improper conduct on the part of said executrix in the exercise of such power, if any such existed, but, on the contrary, it appears that the said complainants were bona fide purchasers of the lands and premises described in the complainants' bill of complaint." And he further reported that "the said complainant Annie S. Chandler and the complainant John B. Chandler, so far as appears before me, have a perfect title to the lands conveyed to them, and that the mortgage of the answering defendant George Brand is not an incumbrance on the said land or any part thereof." To this report the defendant George Brand filed exceptions, which, inter alia, object to the master's report because it finds the title of the complainants good and the mortgage of the defendant bad; whereas, the exceptant contends that the title of the complainants was derived through a power of sale as above set forth, which power he contends was never properly executed, and, further, that the master reports that the complainants are bona fide purchasers without notice, whereas, the exceptant Insists that the evidence shows that they had legal notice of sufficient facts to put them on inquiry, and that upon due inquiry they would have ascertained facts which would have shown their title to be bad, and that said premises were subject to the lien of the mortgage aforesaid.
The case now comes on before me for final hearing upon the bill, answer, master's report, and exceptions.
Collins & Corbin, for complainants.
James B. Pyle, for defendant Brand.
GARRISON, V. C. (after stating the facts as above). The bill having charged and the answer of the defendant having conceded that the complainants at the time of the filing of the bill were in peaceable possession of the lands in question, claiming to own the same, the burden is then upon the answering defendant to set up and prove such title in himself as he claims he has. He sought to do this by setting up a mortgage given by one of the devisees of John Robinson, and insisting that the power of sale vested in the executrix of John Robinson, which, if properly exercised, would have devested his mortgagor of title, was never properly exercised. His contention is that the executrix did not receive full and adequate consideration for the conveyances which she made of the premises in question to her grantees, who afterwards became the grantors of the complainants. It is his contention that the complainants were put upon notice because of the recitals concerning the consideration which are contained in the deeds from the executrix to their grantors. In the deed from the executrix to Harriet E. Robinson the consideration is expressed as "the sum of one dollar and other valuable consideration lawful money of the United States of America." and in the deed from the executrix aforesaid to LauraP. McIntyre the consideration is expressed to be "the sum of one dollar and other consideration lawful money of the United States of America."
The defendant Brand insists that these respective recitals in the deeds to the grantors of the complainants put the latter upon notice, so that it became their duty to investigate what consideration passed from Robinson and Mclntyre, respectively, to the executrix for the conveyances made respectively to them. He insists that, if they had made the investigation which he claims it was their duty to have made, they would have ascertained that no adequate consideration passed. It is not disputed that the complainants were bona fide purchasers for full value.
There is a very grave and most important question as to whether bona fide purchasers for full value are required to inquire into the consideration passing from their grantors, or from others in their chain of title, and whether they may not rely upon the efficiency of the conveyance of a legal title by a properly executed instrument conveying the same which is found upon record, provided the said instrument recites a consideration. But, conceding for the purpose of dealing with this specific point made by the defendant that the law is as he contends that it is, and that it was the duty of the complainants under the circumstances of this case to inquire, it is necessary for the defendant in this case to show by proof that no consideration (or no adequate consideration such as he contends must have passed to constitute a proper execution of the power) did pass. His proofs were directed to this point. He produces as his only witness an attorney at law who acted for the executrix. He seeks to prove by this witness that these conveyances were part of a voluntary partition, and that no payment or other adequate consideration passed from the grantees of the executrix to the executrix. In my view he entirely fails to prove this. It may be conceded, without being decided, that the testimony of this witness suggests that some other thing prompted these conveyances than a direct payment of a consideration, but the witness distinctly stated twice during the course of his testimony that he did not know whether anything was paid or not, and he nowhere testifies directly that nothing was paid, or that the conveyances were without other consideration than such as was involved in a voluntary partition. The defendant, therefore, failed to sustain the burden of proving that which he must prove to succeed. To succeed, it was necessary for him to prove that the executrix never properly executed the power of sale vested in her. Since the instruments by which she sought to convey the title were proper in form and were otherwise efficient, and since the only claim of insufficiency was in respect to the consideration, and the defendant does not prove that full and adequate consideration did not pass, he has failed to prove that the power of sale was not properly exercised.
The master evidently found that he was not called upon to determine this question of fact, because in his view the complainants, being bona fide purchasers for value, had no other notice than that contained in the deeds and will constituting their chain of title, and that nothing therein put them upon any notice of any facts the investigation of which would have shown their title to have been invalid. In other words, the master found that the complainants could rely upon the record.
The defendant Brand insisted before the master and before this court that upon the records of Hudson county there were numerous deeds at or about this time made by the executrix to devisees of the testator, John Robinson, and that the complainants herein were charged thereby with notice that the deeds to their grantors were given in pursuance of a voluntary partition among the devisees of John Robinson of the property left by him. I cannot agree with this contention. I do not think that the complainants were charged with knowledge of anything which did not appear in their own chain of title, and were not charged with the knowledge of other conveyances affecting other property. Booraem v. Wells, 19 N.J.Eq. 87 (Chan. Zabriskie, 1868); H. C. Tack Co. v. Ayers, 56 N.J.Eq. 56, 38 Atl. 194 (Pitney, V. C, 1897). They were charged with knowledge of what appeared in their own chain, and that was the deeds from the executrix to their grantors, and the contents of the will of John Robinson, the testator, who owned the land at the time of his death and devised it, giving a power of sale, to his executrix. Whether they were charged with the duty of inquiring into the consideration which passed from their grantors to the executrix for the deeds made by the executrix to their grantors is a most interesting and important question. Those deeds, it will be recalled, recited properly the power of sale vested in the executrix, and were otherwise fully efficient to transfer the title, and, as to consideration, stated in one instance that it was for "the sum of one dollar and other valuable consideration lawful money of the United States of America," and in the other instance, "the sum of one dollar and other consideration lawful money of the United States of America." Whether a person about to take a title in the course of which deed appears which is made by a donee of a power, with such an expressed consideration as appears in either of these deeds, is bound to inquire into the adequacy of the consideration, is a question that is so important and so far-reaching in its effect upon titles to land that it should not be decided or dealt with except where it is necessary to the decisionof the case. Since I find in the case at bar that all of the law contended for by the defendant may be conceded in his favor and he cannot succeed upon the facts, I do not find it necessary to determine whether the law is that a bona fide purchaser for value, circumstanced as these complainants were, is affected with notice by the presence in deeds in their chain of title of such expressed consideration as appears in the deeds in this suit.
The result is that a decree in this cause should be entered in favor of the complainants, establishing their title as against the defendants, including the answering defendant, Brand.