The lease involved in this case was executed on July 15, 1922. It was offered in evidence and marked Exhibit "C." In the record, prepared by defendant's attorneys, it is stated that —
"Attached to said Exhibit C, and a part thereof is the following, on the stationery of the Gafill Oil Company, South Bend, Ind.:
" 'Benton Harbor, Mich. " 'Aug. 4/22.
" 'I will agree to refund all expenses during the life of the lease given by me to the Gafill Oil Co. of So. Bend which they incur with the strip of land leased from the Big Four Railroad Co.
"A.S. LINDENFELD.' "
The lease was not recorded until September 25, 1922. The above writing attached thereto does not appear in the record. Under the terms of the lease *Page 656 the defendant was entitled to a renewal thereof at the expiration of each five-year period at an advanced rental. Under the supplemental agreement the defendant deducted the sum of $75 each year, paid by it to the railroad company for the use of its land. When renewal was had at the end of the first five-year period on July 15, 1927, Lindenfeld testified that it was understood that no further deductions should be made. This was denied by defendant. It claims that a deduction was made of the September rent of that year. The monthly rental was then $75.
The plaintiff purchased the property on September 24, 1928. The lease was then assigned to her. An abstract of the title was furnished. It disclosed the lease to defendant, and Lindenfeld's copy of it was examined by plaintiff's husband, William H. Hull, who was then acting for her. On October 1, 1928, the plaintiff gave defendant a written notice of the transfer of the lease to her, and requested that all checks for rent thereafter should be made payable to her husband, at an address stated therein. Mr. Hull testified that no deduction of rent thereafter was claimed by the defendant for the year 1928 nor for 1929, and there was no denial thereof.
The applicable rule as stated by Mr. Pomeroy, quoted by Mr. Justice BUTZEL, is supported by the great weight of authority. It is stated in 27 Rawle C. L. p. 723, as follows:
"As a general rule where a person occupies premises, and the record shows a conveyance under which he would be entitled to the possession, his possession will be referred to the record title, and a subsequent purchaser will not be charged by it with notice of any other undisclosed title or equity which the occupant may have. The possession is a matter tending to excite inquiry, but the fact that the occupant has placed upon the public records written evidence of *Page 657 his right, with the terms of which his possession is consistent, arrests inquiry at that point, and reasonably informs the purchaser that he may rest upon the knowledge thus obtained."
While I am in accord with the holding of Mr. Justice BUTZEL, that this rule should not be so rigidly enforced in all cases as to work a gross injustice to tenants, I do not think the facts here presented should be treated as creating an exception thereto. Had not defendant recorded its lease, the plaintiff would have been chargeable with notice of its terms, as defendant was in possession of the premises. The defendant knew at the time it recorded it, and thus gave notice of its contents, that it did not fully express the terms under which it took and held possession as tenant. Within a few days after the assignment of the lease to plaintiff, she gave defendant written notice thereof and requested that the rent be thereafter paid to her husband. It was then apparent to it that the plaintiff was relying on the terms of the lease as it appeared of record. And yet it not only neglected to call plaintiff's attention to the fact that under the written undertaking of her assignor it was entitled to a deduction of one month's rent in each year, but it paid the rent in full for the balance of the year 1928 and for the entire year 1929, without questioning plaintiff's right thereto.
Under the holding of Mr. Justice BUTZEL, the burden is cast upon the plaintiff of litigating the question in dispute between Lindenfeld and the defendant as to whether the right to deduct the rent payable to the railroad company ceased, by agreement, at the end of the first five-year period.
In my opinion, the judgment should be affirmed.
POTTER, NORTH, and WIEST, JJ., concurred with SHARPE, J. *Page 658