LaCombe v. Headley

Nov 17, 1919

Versions:108 A. 185

91 N.J. Eq. 63

6 Stock. 63

1919 N.J. LEXIS 279

The opinion of the court was delivered by

Gummere, Chief-Justice.

This wаs a bill to quiet title. In February, 1909, the complainant purchased two lots of land located in the town of Irvington, adjаcent to one another and abutting upon property already owned by him, at a sale made by the town аuthorities under the Tax Adjustment act of 1898. Comp. Stat. p. 5251. These lots at the time of the tax sale were owned by the heirs-at-law of оne Alfred Tichenor. The sale purported to convey the fee, and a deed for the premises was еxecuted in due course by the tax collector of the town and delivered to the complainant. This was not recorded.

In May, 1914, one William F. Headley purchased from the heirs of Alfred Tichenor all their right, title and interest in аnd to the lands in question. This deed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was duly recorded. In October of the same year Headley and bis wife conveyеd the premises to Hilda H. Headley, the defendant, and that deed was also recorded.

Hilda Headley claims to be a bona fide purchaser for vаlue without notice of any right of the complainant in the premises, and asserts that the deed from the tax collector to the complainant is void as against her under the provisions of section 54 of the act cоncerning conveyances. Comp. Stat. p. 1553. That section provides that every deed shall, until duly recorded, or lodged for record in the clerk’s office, be void and of no effect against subsequent judgment «creditors without notice, and against subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thereof, whose deed or mortgage shall have been first duly recorded.

In the argument of the cause before the cоurt of chancery the principal question mooted was whether a tax collector’s deed given to а purchaser at a tax sale under the Tax Adjustment act *65of 1898 was invalid as against a bona fide purchaser from the prior owner who had no notice of the tax sale, or of the deed made pursuant thereto, and whose deed is first recorded; the cоntention on the part of complainant’s counsel being that a tax deed was not within the purview of sectiоn 54 of the act concerning conveyances. The learned vice-chancellor, before whom thе cause was heard, reached the conclusion that a tax deed did not come within the scope of the statute, and that although not recorded, it was valid and effectual as against subsequent judgment creditors, purchasers and mortgagees of the original owners, whether they had notice of its existence or not. The result оf this conclusion led the vice-chancellor to advise a decree declaring the title of the complainant in and to the lands and premises involved in the litigation to be good, valid and effectual, and that the dеfendant had no estate, right, title or interest therein.

We do not find it necessary to determine the very interesting question whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or not an unrecorded tax deed is void and of no effect against a subsequent bom fide purchaser for valuable' consideration not having notice thereof, whose deed has been first duly recorded. And for this reason: The proof is convincing that shortly after the tax sale, in 1909, the complainant entered into possession of the two lots involved in this litigation, enclosed them with a fence, and used them in his contracting business, storing ashes, stones аnd other debris on the land, and keeping there his wagons used by him in his business. These wagons, all of them, had his name thereon. This usе and occupation of the premises by the complainant continued without interruption from the year 1909 until thе institution of this suit; it was open and notorious, obvious to every one visiting the premises.

The statute makes an unrecоrded deed void only as against judgment creditors, bona fide purchasers and mortgagees' who have no notice thereof, and it is entirely settled, both in this state and elsewhere, that possession of land, if open, notorious and unequivоcal, constitutes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍notice of the right, or claim of right, under which the party in possession occupies it; and this notice is effective, not only as to those who have actual knowledge of *66the occupation, but as to all the world. It is the duty of an intending purchaser of land which is in the possession of a person other than the intending grantor to inquire of the occupant and ascertain the rights under which he holds; and if he does not make such inquiry, hе is chargeable with notice of such facts as the inquiry, if it had been in fact niade, would have revealed. Havens v. Bliss, 26 N. J. Eq. 363; Johns v. Norris, 27 N. J. Eq. 485; Hodge v. Amerman, 40 N. J. Eq. 99; Y/ood v. Price, '79 N. J. Eq. 624- In the present case, the fact that this land was in the possession of someone was, as we have already sаid, obvious. An examination of the wagons stored there would have disclosed the occupant. So, too, wоuld inquiry made in the neighborhood; for the testimony indicates that it was generally known that Mr. LaOombe was using this land in his contracting business. Under the rule stated the defendant for her own protection was required to ascertain the rights under which LаCombe held; she made no effort to do so, and having failed in this regard she is chargeable with notice of what shе'would have learned had she performed this duty, namely, that LaCombe was in possession of this land under a tax deed mаde by the tax collector of the town of Irvington in 1909. In this situation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍she is not within the protection of the statute — that is, she is not a bona fide purchaser without notice of the existence of the LaCombe deed. For this, reason the decree under review should be affirmed.

For affirmance — The Chief-Justice, Swayze, Trenohard, Parker,, Bergen, Minturn, Kalisoh, Black, White, HepPENHEIMER, WILLIAMS, TAYLOR, GARDNER, AcKERSON-14.

For reversal — None.