Opinion
05-01-1906
KELLOGG v. RANDOLPH et al.
Mr. Congleton, for complainant Mr. Wherry, for defendants.
Action by William D. Kellogg, as administrator, against Jessie L. Randolph and others. Decree for complainant.
Mr. Congleton, for complainant Mr. Wherry, for defendants.
STEVENS, V. C. I think that the three mortgages made by Mrs. Randolph to Eugene E. Crane, trustee, dated, respectively, September 11, 1807, July 20, 1900, and April 22, 1901, have priority over the mortgage given by Mrs. Randolph to Garret I. Miller, dated July 24, 1901. They were all recorded in the order of their dates. The point made on behalf of Mr. Miller's estate is that it does not appear that he made any search; that consequently he is only affected with notice of the existence of the prior mortgages, so far as the registry shows that they covered the property mortgaged to himself, and that in the case of two of those mortgages the registry does not so show. In all the mortgages, both those made to Crane and that made to Miller, we find identically the same description. It reads as follows: "Beginning at the intersection of the west line of Watchung avenue and the north line of Ridge avenue; running thence northwesterly along the north line of Ridge avenue, one hundred feet; thence northeasterly on a line parallel with the west line of Watchung avenue, one hundred and twenty-five feet; thence southeasterly to the west line of Watchung avenue, one hundred feet; thence southwesterly along the west line of Watchung avenue, one hundred and twenty-five feet, to the place of beginning." In the first of the mortgages given to Crane the property is described as lying in the township of East Orange; in the second, as lying in the township of West Orange, where in fact it does lie; in the third, as lying in the city of Newark. These mistakes appear to have been due to the gross carelessness of the scrivener. In the Miller mortgage the property is correctly described as lying in the township of West Orange.
The law is that a purchaser will not be bound by the record of a conveyance which fails to disclose or specify the property granted. Le Neve v. Le Neve (3d Am. Ed.) 2 L. C. in Eq. 179. The registry is itself notice of no other facts than those that appear on the record. Flume v. Bone, 13 N. J. Law, 63, note. The constructive notice thus arising is equivalent, in law, to actual notice. Turrell v. Jackson, 39 N. J. Law, 331. If there be any ambiguity on the face of the record, it may be and ordinarily will be sufficient to put purchasers upon inquiry. Lee v. Woodworth, 3 N. J. Eq. 36. "As intending purchasers," said Danforth, J., in McPherson v. Rollins, 107 N. T. 316, 14 N. E. 411, 1 Am. St. Rep. 826, "they must be presumed to investigate the title and to examine every deed or instrument forming a part of it, especially if recorded. They must, therefore, be deemed to have known every fact so disclosed and every other fact which an inquiry suggested by those records would have led up to." Miller, of course, knew that the property was in West Orange, because it is so stated in his own mortgage. He also knew, constructively, beyond all controversy, that Mrs. Randolph had mortgaged it to Eugene E. Crane; for the record of the $1,000 mortgage so shows. In this mortgage the property is correctly stated to be in West Orange. He had, also, constructive notice of the fact that the same mortgagor had twice mortgaged to the same mortgagee a property described by metes and bounds which were identical with those contained in his own mortgage. In both of them the lot was described as beginning in the intersection of the west line of Watchung avenue and the north line of Ridge avenue and the courses and distances were precisely the same. Now it is possible that a person residing in Boonton (where, according to the mortgage, Miller lived) might have thought that there might have been in East Orange two intersecting streets by the name of Ridge avenue (not street) and Watchung avenue, and that on the identical northwest corner formed by the intersection of those streets Mrs. Randolph owned another lot of precisely similar dimensions. But it appears to me to transcend belief that any one would have thought it likely that there were two streets of the same name in Newark also, whose general direction with respect to the points of the compass was the same, and which intersected, each other in precisely the same way, and that Mrs. Randolph owned on the identical northwest corner of these streets a lot of precisely the same size, described by the surveyor, or whoever framed the description, in absolutely the same words. The idea suggested to any intelligent mind, professional or lay, would have been that here was a mistake, that it must have been intended to.describe the same lot, and that the towns were misnamed. It may be said that the record is only notice of property in Miller's chain of title; that different towns being named, these two lots did not appear to be in that chain; and that, consequently, he had no constructive notice of them, but the answer is that the whole of the contents of these mortgages, if in fact, in the chain of title, is presumed to have been within the consciousness of the mortgagee. Westervelt v. Wyckoff, 32 N. J. Eq. 188; Wallace v. Silsby, 42 N. J. Law, 1. And this being so, the mortgages themselves contain, on their face, enough to show the error and to suggest the proper correction. At all events they show enough to have put Miller upon inquiry, and slight inquiry would have shown the fact. "Whatever puts a party upon inquiry," says Chancellor Green in Smallwood v. Lewin, 15 N. J. Eq. 60, "amounts in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and could lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding."
For these reasons I think complainants entitled to the relief prayed.