88 N.J.L. 199 | N.J. | 1915
The opinion of the court was delivered by
This is an action on covenants for title contained in a deed from the defendants, heirs of Charles A. Lighthipe, to William L. Glorieux. The breach alleged is the existence of an encumbrance in the form of building restrictions. This is said to have been created by a covenant in a deed for adjoining land made by Charles A. Lighthipe, the
The construction we adopt is in line with the history and purpose of the registry acts and the doctrine of constructive or statutory notice founded thereon. The purpose was to protect purchasers of land which had already been conveyed by an unrecorded deed by making that deed void as to them. This purpose did not require that the failure to record should make the deed void as to subsequent purchasers of other land. The words "subsequent purchaser” occur in section 54 as well as in section 53; in fact their use in connection with the oiher language of section 54 antedates as matter of legislative history their use in section 53; the former use goes ■back to the act of 1799 (Pat. L., p. 399); the latter to 1898 only. The words ought to have the same construction in both sections. To attribute to them in section 54 the meaning of subsequent purchasers from the same grantor would lead to an absurdity. Section 54 provides that an unrecorded deed shall be void as to a subsequent purchaser in good faith for value, and if subsequent purchaser means a purchaser from the same grantor but of different land, then the owner of land b3r an unrecorded deed would be unable to sue for a trespass if the trespasser happened to be a subsequent purchaser from the same grantor. This is obviously absurd and it is absurd because it extends the meaning of the words beyond the necessity of the mischief to be cured. Yet we must go to that extent unless we hold that subsequent purchaser in section 54 nieans only subsequent purchaser of the land. If we give the words that meaning in section 54, we must give them the same meaning in section 53. This is demonstrated by a consideration of the American doctrine of notice by the record. That doctrine arose by implication from the statutory provision (now found in section 54)
The reason of the legislation and the argument al inconvenient point to the same result. The record is held to be constructive notice because a man is bound to examine his own title or take the risk of not doing so. A purchaser may well be held bound to examine or neglect at his peril, the record of the conveyances under which he claims, but it would impose an intolerable burden to compel him to examine all conveyances made by every one in his chain of title. The case differs from the conveyance of an easement or any interest that lies in grant. A grant takes effect regardless of notice; an equitable servitude is the creature of equity alone and depends entirely on the existence of notice. Confessedly, Lighthipo’s covenant to insert restrictions in subsequent deeds was not enforceable at law against Glorieux. It clearly was not a grant.
The result is that the plaintiff failed to prove that the land conveyed to Glorieux was burdened with the restrictions contained in the deed from Lighthipe to Marsh, and the nonsuit should have been granted for that reason.
The judgment must be reversed to the end that a venire de novo may be awarded.
For reversal—The Chancellor, Chief Justice, Garrison, Swayize, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Vredenburgh, White, Terhune, Heppeni-ieimer, Williams, Taylor, JJ. 16.