dissenting:
I am unable to concur in the opinion of the majority of the court in this case. The land and loan company was in possession of the portion allotted to it under the deed from Gregory making the partition, and, as has been repeatedly and uniformly held by this court, its actual possession was notice to the world of its claim of title, as fully as if all its title papers and agreements relating to the land had been duly recorded.
By the agreement executed by Gregory and the company when the partition was made, it was stipulated, that should it become necessary to purchase and take lip an outstanding title, each should contribute one-half of the sum necessary for the purpose. This Bonner claim was adverse to their title, and, under the agreement, each should contribute one-half towards its extinction, or half of the loss occasioned by its successful assertion. 'Had Gregory, sued the land and loan company to recover for the loss of the fourth of his lot by the assertion of this Bonner claim, that agreement would have effectually precluded a recovery, because he had bound himself to bear one-half of the loss. That agreement was part of the arrangement by which the partition was effected and entered into, and formed a part of it as between Gregory and the land and loan company; and when the Connecticut Mutual Life Insurance Company took its mortgage on Gregory’s share, it was charged with notice of the agreement, and all of its terms and conditions. As Gregory could not recover from the land and loan company for this failure of the title to his share, his mortgagee can be in no better condition. That company took from Gregory charged with notice, and hence subject to all the equities existing between Gregory and the land and loan company; and as equity would have restrained Gregory from recovering, it follows his mortgagee should, by the same rule of equity, be restrained from imposing any portion of the bur-then on the share of the land and loan company.