| Conn. | Feb 15, 1866
The bill is for the specific performance of a contract respecting a gangway or pass way from the street to the rear of the petitioner’s lot. It was established on the line between the petitioner’s land and the land of the respondent, and partly on the land of "each, at a time when the respondent’s land was owned by his grantor and two others as tenants in common, by a mutual agreement between all the parties having any interest in these two lots, and this agreement, though by parol, was so far executed by the parties as to give the petitioner, as between him and the other original parties to it, a clear equitable title to its specific execution.
A bare statement of this claim is a sufficient refutation of it. Every lawyer knows that a party purchasing real estate can not hold it against a prior equitable title of which the purchaser had notice at the time of his purchase, and that a contrary principle would lead to the grossest frauds. The respondent by his purchase put himself in the condition of his vendor and is bound by every equitable incumbrance upon the property of which he had notice. The parade in reference to the consultation of counsel and the examination of the town records, when he had full knowledge of the state of the title, is rather evidence of an intentional fraud than any excuse for purchasing as unincumbered property which he knew to be otherwise.
But Benton, one of the original tenants in common, and therefore one of the parties to the agreement with the petitioner, conveyed his interest in the common property to Cornelia Bunnell, previous to the respondent’s purchase of his interest therein, and she together with the respondent and the other proprietor have since made a partition of it among themselves, and in this partition the respondent’s share was set to him adjoining the petitioner, so that that part of the passway which is not upon the petitioner’s land is upon land now held by the respondent in severalty. And it does not appear that
The claim of the respondent here is, that as Miss Bunnell is a bona fide purchaser without notice, she acquired, an unincumbered title to one undivided third part of the disputed land; and that although the respondent is chargeable with notice, he acquired by his purchase all the legal rights and equitable interests which Miss Bunnell had acquired by her purchase of one third part of the premises. How this would be if the property was still undivided between the tenants in common it is not important to inquire. Perhaps it would be the duty of the court in such a case to see that the rights of the bona fide purchaser were protected. But it is certain that Miss Bunnell’s rights can not be affected in any way by this proceeding, as she is not a party to it. And it appears to us that the respondent ought not to be permitted to take advantage of any supposed right that she may have had, or may now have, in that part of the land covered by the passway.
By the partition between the tenants in common the pass-way becomes an incumbrance upon the land now held by the respondent in severalty; and if he saw fit heedlessly to accept of less than he was justly entitled to in making the division, when he had full knowledge of Blatchley’s rights, he clearly ought not to 'be permitted now to deprive the petitioner of his rights to the passway, because of an injury which he has brought upon himself. The petitioner must suffer a great wrong if deprived of his passway, and he is in every respect an innocent party. The respondent does not stand in this favorable light toward the petitioner, whose equitable interest he attempted to take away on the ground that it had not become vested in him by virtue of any legally recorded deed, and if his speculation instead of proving a success has operated to his pecuniary injury, it is the subject of less regret than would have been occasioned if he had succeeded in unjustly depriving the petitioner of his equitable ownership of the passway.
In this opinion the other judges concurred.