I concur in the result to the extent that I believe that the appellant, Mishawaka St. Joseph Loan Trust Company is entitled to Stryker's vendor's lien and to the lien of the materialmen and laborers. But I cannot accept the conclusion of the majority respecting the legal consequences of possession. It is undisputed (1) that appellant examined the premises on September 12, 1929, at a time when Huffman, a building contractor, was completing a residential building thereon, (2) that the Downeys moved in and occupied the residence on September 14, 1929, and (3) that the mortgage in question was not executed to the trust company until September 16, 1929. The court found that the "plaintiff Downey's residence was established and their possession perfected on said `five-acre tract' on September 14, 1929, and that they have ever since had, and still do have, open, notorious, exclusive, and complete possession *Page 452 thereof, and have occupied the same as their residence." As I understand the majority opinion it holds that the appellant Mishawaka St. Joseph Loan Trust Company did not have notice of Downey's possession as a matter of law because, in the opinion of the majority, the facts were not such as to put upon appellant the duty of examining the premises after the inspection of September 12th. As stated in the majority opinion: "There is a finding that appellants had no actual knowledge of the rights or possession of appellees. There is no finding that the mortgagees were not good-faith holders, without notice, and no facts are found which are sufficient as a matter of law to impute knowledge to appellants, and therefore appellees did not sustain the burden which was upon them. Under all of the facts specially found, the mortgagees must be treated as having taken their mortgage liens in good faith and without notice of appellees' equities." The writer understands that there is a rule of law to the effect that "open, notorious, exclusive and complete possession" of premises constitutes constructive notice to all the world of such possession; and that a prospective acquirer of an interest in premises so possessed is charged with knowledge of the interest of the possessor to the extent that reasonable investigation would have disclosed the same. In short, in the opinion of the writer, possession of the sort which the court found to exist in the instant case is as conclusive notice to all the world of the interest of the possessor in the premises as is the notice given by a recorded deed or mortgage. In one case the notice is a result of a rule of common law; in the other, of a rule of statutory law.
It is true as suggested in the majority opinion that the instant suit is a suit in equity and consequently calls for a proper application of rules of equity, but in the opinion of the writer the effect of the majority opinion *Page 453 is to transmute a well recognized rule of property law into a standard of conduct. Since on the facts both the Downeys and appellant were acting equally in good faith it is not a case where equity will deny a party a legal advantage because of unconscionable conduct.