Federal Land Bank v. Pollender

Billings, J.,

dissenting in part. I am unable to agree with the majority insofar as it concludes that the elder Werners have property rights superior to the lien of plaintiffs mortgage. It is undisputed that plaintiff had no actual notice of any property rights in the elder Werners. It is also clear, as the majority itself points out, that the elder Werners’ two-day continued possession after title was transferred to the Pollenders could not have constituted implied notice to put the plaintiff on inquiry. In my view, the indefinite and vague notations in plaintiffs files as to the family nature of the transaction and the consideration for the transfer of the property from the elder Werners to the Pollenders were not sufficient “signs and signals” to put a prudent man upon inquiry under the doctrine of McCann v. Capital Savings Bank & Trust Co., 117 Vt. 179, 183, 89 A.2d 123, 126 (1952) and Farmers Exchange v. Walter M. Lowney Co., 95 Vt. 445, 450, 115 A. 507, 509 (1921). Indefinite or vague reports are not sufficient implied notice to put a mortgagee upon inquiry. 6 R. Powell, The Law of Real Property § 916 (1977). On the facts of this case, I would hold as a matter of law that the plaintiff was not chargeable with notice.

*49Even assuming that the information here was sufficient to put the plaintiff upon inquiry initially, the giving of a warranty deed to the mortgagors by the elder Werners would have allayed any reasonable suspicion on plaintiffs part, terminating the duty to inquire. If one has facts sufficient, taken alone, to put him on inquiry, he need not inquire where circumstances render these facts consistent with the mortgagor’s title. Gifford v. Rutland Savings Bank, 63 Vt. 108, 114, 21 A. 340, 341 (1890).

It is my opinion that the majority has stretched the rigging to arrive at a result which is not warranted on the record. I would hold the plaintiffs lien superior to the rights claimed by the elder Werners.