67 N.J. Eq. 610 | N.J. | 1904
The opinion of the court was delivered by
The decision of the learned vice-chancellor that the defence based upon the agreement of May 4th, 1896, was entitled to no equitable consideration, for the reason that Atlantic City was in no way notified of it, and his refusal to admit the agreement itself in evidence, for the same reason, seem to involve a denial of the peculiar standing in equity of a defendant who has purchased for value without notice. Such defence does not profess to go to the merits of the controversy tendered by the complainant, but only to the propriety of the remedy that the court is asked to enforce. It is new matter in bar of the jurisdiction of equity and proceeds upon the notion that as no consideration can appeal more favorably to a court of equity than that of one who in good faith has paid for a title without notice of any encumbrance, a court of equity will not concern itself with a comparison of equities, but will content itself with a denial of its remedial assistance. “Against such a purchaser,” said Lord Loughborough, in Jerrard v. Saunders, 2 Ves. Jr. 454, “this court will not take the least step imaginable.” Such a purchaser “shall not be annoyed in equity” is the quaint language of Mr. Eonblanque. 2 Fonb. Eq. 151. “It is a general and thoroughly established rule that a purchaser bona -fide for valuable consideration, without notice of any preceding claim at law or in equitjq will not be prevented by the court of chancery from availing himself of any advantage which he has acquired.” 2 Spenc. Eq. Jur. 733. “Eor equity,” says Mr. Sugden, “will not disarm a purchaser, but assist him, and precedents of this nature are very ancient and numerous where the court hath refused to give any assistance against a purchaser, either to an heir or to a vendor, or to the fatherless, or to creditors, or even to -one purchaser against another.” 2 Sugd. Vend. & P. (7th Am. ed.) *1016.
“Hence the doctrine,” said Chief-Justice Beaslejr, “so much favored in a court of equity of the inviolable nature of the defence of a bona fide purchase without, notice for a valuable consideration.” Herbert v. Mechanics’ Building and Loan Association, 17 N. J. Eq. (2 C. E. Gr.) 497, 500.
The leading case upon this doctrine annotated by White and Tudor, in Basset v. Nosworthy, 2 White & T. Lead. Cas. 1.
The defendant had set up its equitable right under this agreement by answer instead of by plea, as it might do when in bar of relief only, and not in bar of discovery. Haughwout v. Murphy, 22 N. J. Eq. (7 C. E. Gr.) 531, 547.
It offered to prove the agreement so set up, which by a comparison of dates was prior to the inception of the right which the plaintiff sought to enforce, and hence necessarily without notice of it, and sufficient evidence was admitted to show the consummation of this agreement by a conveyance of the legal title and the parting with a valuable consideration for the rights so acquired. The refusal of the court below to admit-the agreement in evidence left the case in a somewhat nebulous condition, but enough was proved, or offered to be proved, to establish prima facie the favored status referred to in the above citations. The proof was rejected, not because the facts had been inartificially pleaded, but because the complainant had received no notice of the defendant’s equitable estate, a clearly irrelevant consideration. We think that the agreement should have been admitted in evidence.
The rejected agreement had also a material bearing upon the case upon its merits, namely, the question of notice of the boardwalk deed. Bjr the terms of the agreement, the equitable title that passed under it recognized the new boardwulk as subsisting upon the land. This board-walk was by-lawr a public street. Hence, upon the question of what notice would be imputed to one who sawr the new boardwalk in the course of construction by the city, the fact of acquiescence in its actual location upon the land would be_ a material circumstance. The assertion of a
The case has, however, been examined in its entirety upon the proofs that were admitted and dealt with in the court below.
The bill, as has been said, was filed to enforce a restrictive covenant contained in the boardwalk deed from Loper. In proof of the covenant it thus sought to enforce, the complainant offered a copy of the record of the boardwalk deed, certified by the clerk of Atlantic county, in conformity to an act respecting conveyances. Whether such copy should have been received in evidence depended upon whether the original was “such deed, conveyance, lease or other instrument” as is authorized to be recorded, and a transcript of such record received in evidence. The learned vice-chancellor admitted the certified copy offered by the complainant. From this ruling, in which we concur, and upon which the complainant’s entire case rests, it follows that the rights of the complainant under said instrument must consistently be treated as subject to the recording laws contained in the conveyancing act. The documentary evidence upon this point was as follows: The deed to Atlantic City, which I have called the boardwalk deed, was executed by Loper, as found by the vice-chancellor, upon May 9th, 1896. The deed to the defendant’s lessors, which I shall call the Eiddle deed, was executed by Loper on June 6th, 1896. The boardwalk deed was not recorded until June 16th, 1896. The Eiddle deed was recorded six days earlier, namely, June 10th. Looking, therefore, at the documentary evidence alone, it is clear that the complainant’s deed is without the least legal force against the defendant’s title. It is equally clear that the only way in which the complainant can subject the defendant’s land to the covenant contained in its earlier deed is by proving that such subsequent deed was taken with notice of the unrecorded boardwalk deed. The burden of proving such notice rests upon the holder of the unregistered title. Hodge v. A merman, 40 N. J. Eq. (13 Stew.) 99.
“The landward side of the boardwalk was closely built up along its entire length. The oceanward side of it had at that time no buildings except Young’s pier and the Iron pier. Those two were the only buildings standing oceanward of the boardwalk in 1896. This fact would of itself put anyone interested upon inquiry to ascertain why so remai'kable a condition should exist.”
In the face of these considerations, I am unable to reach the conclusion that the complainant proved that the purchasers whose deed was first recorded had implied notice of the unrecorded boardwalk deed of the complainant.
The learned vice-chancellor also decided that Loper, by executing the boardwalk deed, became a party to a general scheme from which he could not have withdrawn and of which his restrictive covenant was an essential feature. The grounds upon which this conclusion was reached have not been reviewed, for the reason that such schemes bind purchasers for value from such covenantor’s only when such alienees take with notice. “Such ‘ stipulations,” said Chief-Justice Beasley, in Brewer v.
In DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. (5 Dick.) 329, the first head-note of Vice-Chancellor Green’s opinion is: “A covenant restrictive of the use of land will be enforced in equity against subsequent purchasers with notice.” This decree was affirmed by this court upon this opinion. The check-list was filed February 26th, 1894, but I do not find in the reports any mention of the case in this court.
Notice being as essential to this branch of the complainant’s ease as to that which has been considered, nothing further need be added unless it is to say that the case does not show that any other covenantor had acquired the state’s title to lands under water,- and as in the deed itself they are described merely as owners of land fronting on the beach, it would scarcely be equitable to hold Loper, by mere presumption, to that part of the scheme that apparently affects him alone. Equity, which always looks to equality, being in this particular class of cases based also upon reciprocity, or at least upon the capacity to reciprocate.
The conclusion I have reached is that the complainant failed to prove that the legal title that was superior to its own was taken with notice of the right that it now seeks to enforce, and that the decree of the court of chancery should be reversed and the complainant’s bill dismissed.
For affirmance — None.
For reversal — Tim Chief-Justice, Dixon, Garrison, Pitney, Swayze, Bogeet, Veedenbuegh, Vroom, Green, Gray —10.