Tuscarora Club of Millbrook v. Brown

Kellogg, J.:

The court was justified in finding that the defendant, the owner of the premises in question, through which the Millbroolt stream flowed, on the 15th day of November, 1883, deeded the premises, which were'described as fourteen acres, to his mother, by an ordinary quitclaim deed, reciting a consideration of twenty dollars; at that time he was living with his mother, became embarrassed and deeded this land to her and gave her a bill of sale of all his personal property to secure obligations to her, which obligations were subsequently paid in full. February 21, 1885, after such obligations had been fully paid, she wrote him that she was offered twenty-five dollars for the fishing ground, and asked if he wanted to sell it; he replied that he would not sell the fishing ground, but if they wanted the ground and let him have the fishing they could have it for twenty-five dollars, as he did not know that he would ever be back and need it, but he wanted it if he did come back so that he could fish; if they wanted it and would do that he directed her to give them a deed. Pursuant to this direction the mother gave to Mrs. Carroll an ordinary quitclaim deed which, after the description, contained the clause “reserving the right to William H. Brown, Jr., to fish in said Millbrook stream.” Mrs. Carroll conveyed the premises to one Austin, by an ordinary quitclaim deed, which contained the same provision. Austin, October 15, 1887, conveyed the premises to the De Silvas for an expressed consideration of twenty-five dollars, describing them as three acres, the deed containing the same reservation, and on the same day the De Silvas mortgaged the premises to Austin for five hundred dollars under a different description, describing the premises as containing fourteen acres more or less, with a clause “ for a more particular description reference is had to a deed given by second party and wife to A. Ward De Silva and Joseph L. De Silva, hearing date September 14th, 1887, and also to a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva bearing date October 15th, 1887. This conveyance being intended to cover the same lands and all of them mentioned and described in those two deeds.” July 23, 1898, the premises were conveyed by a referee in mortgage foreclosure action to one Soop, the premises being described as bounded “Southerly by lands of Marcus Shavar, Westerly by lands of Francis O’Connor, Northerly by the highway leading Up-the Millbrook stream, Easterly by lands •in possession of Wm. H. Brown and lands of Edward Cant-well, being about fourteen acres of land, be the same more or less. For a more particular description reference is had to a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva, bearing date September 14,1887, and also to'a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva, bearing date October 15, 1887. This conveyance being intended to cover the same premises and all of them mentioned and described in those two deeds.”

Soop conveyed to the national bank by substantially the same description, except in referring to the deeds which formerly described the property, instead of the erroneous expression “given by second party.and wife,” it named Theopolu's Q-. Austin and wife as the grantors. April 15, 1901, the bank conveyed to the plaintiff under substantially the same description contained in its deed of the premises.

The court found that the reserving clause in the deed was an' exception rather than reservation and retained to the defendant the right to fish in the stream, on the theory that.the deed from the defendant’s mother was a mere mortgage which had been satisfied and that the defendant was the owner, the mother simply holding the naked title and having conveyed it to Mrs. Carroll as his agent and that, therefore, the deed left the fishing right in the defendant just as it was prior to the Carroll deed. I do not think it material to consider whether it is a reservation or an exception. Clearly as between the defendant and his mother before the mortgage was paid, and more particularly after its payment, he had the clear right to fish in the stream. He never consented to a conveyance of that right and it was not conveyed, the deed expressly reserving or excepting it. To fairly locate the land under the plaintiff’s deed a reference was necessary to the Austin deed which contained this reservation. There was sufficient to put the proposed purchaser upon inquiry as to the defendant’s rights. We do not know whether it made inquiry or not, or whether or not the prior grantors in the chain of title from Mrs. Brown made inquiry. Plaintiff relies upon the acknowledgment contained in the deed that the consideration was paid as its only evidence of good faith, without making any proof that it did not know of the reservation itself and did not know of the facts and circumstances under which it was made. I think we may fairly assume that it made inquiries and ascertained the facts, but perhaps relied upon the technical rule that a reservation in a deed to a stranger was ineffectual and, therefore, the defendant had no fishing rights. But we have seen that the defendant was really the grantor to Mrs. Carroll, and the recital in her deed either notified her of the defendant’s rights or put her upon inquiry. Where a person is put upon inquiry he must be charged with the knowledge which he reasonably would have obtained had he made inquiry, and if such inquiry had been made it would have appeared that the defendant owned the property, the mother holding merely the naked paper title without any beneficial interest therein, and that she was making the conveyance for the defendant, and that, therefore, the reservation in the deed was in favor of the party really making the deed. If it had distinctly appeared as a matter of fact that the plaintiff never knew of this clause in the prior deeds and never knew of any reservation of fishing-rights, and paid the consideration believing that it had an unincumbered title, the case might perhaps be different. In the absence of such proof I think it is fair to assume that it did know of the clause and made satisfactory inquiry with relation to it. I think, therefore, it bought subject to the defendant’s fishing rights.

As the defendant’s mother had no title, the plaintiff cannot acquire title through her, except by showing: (1) That she was authorized by the defendant to convey, thus making her conveyance his; or (2) that it is a purchaser in good faith and without notice, relying upon the deed from the defendant to her.

The first suggestion is met by the clause in the deed which shows that the defendant never conveyed or authorized to be conveyed his fishing rights, and the second suggestion is answered by the fact that the plaintiff either had or was chargeable with notice of the defendant’s rights.

The Recording Act has no application to the casé. That act is intended solely to protect a purchaser from an apparent owner against a previous deed or mortgage given by him which has not been recorded. The object of such statute is to require instruments to be recorded and to make the record of them notice to subsequent parties dealing with the grantors. (Raynor v. Wilson, 6 Hill, 469.)

If the deed to the plaintiff had contained literaEy the same reservation there could be no doubt about the case. But it contains it only by referring to former deeds for an accurate description of the premises which were being conveyed by a description otherwise indefinite. Therefore, I have stated that possibly the plaintiff might have shown that it had no actual knowledge of the contents of the original deeds making its title, but' in the absence of such showing I think it must fairly be charged with knowledge of their contents when they are so definitely referred, to in its deed. In saying that it does not appear that the plaintiff did not know of the reservation in the deed, and that possibly evidence upon that point might have a bearing, the expression carries no suggestion as to the opinion of the court upon that subject, as it is not in the case and has not been considered. The judgment should, therefore, be affirmed, with costs.

All concurred; Houghton, J., in opinion, except Smith, P. J., not voting.