Nos. 14,954—(152) | Minn. | Mar 1, 1907
(after stating the facts as above).
When the owner of premises has constructed a permanent building, so that most of it is on one tract of land and a part on the second tract, sells the first tract, his vendee has an implied easement on the /second tract to the extent necessary to support the building. Swedish-American Nat. Bank of Minneapolis v. Connecticut Mut. Life Ins. Co., 83 Minn. 377" court="Minn." date_filed="1901-06-07" href="https://app.midpage.ai/document/swedish-american-national-bank-of-minneapolis-v-connecticut-mutual-life-insurance-7971870?utm_source=webapp" opinion_id="7971870">83 Minn. 377, 86 N. W. 420. See, also, John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582" court="Ind." date_filed="1885-09-15" href="https://app.midpage.ai/document/john-hancock-mutual-life-insurance-v-patterson-7048066?utm_source=webapp" opinion_id="7048066">103 Ind. 582, 2 N. E. 188, 53 Am. 550; 5 Current Law, 1050, 1051.
The question on this appeal is whether, when the original owner, who is in possession of the whole, thereafter sells the second tract to a bona fide purchaser admittedly without actual knowledge, such purchaser takes the premises free from the implied easement. The trial court properly held that the implied easement did not survive. When such purchaser — here the plaintiff — bought such second tract, she had constructive knowledge of all facts of which she would have learned by examination of public records pertaining to it and by an inspection of the premises. The records showed a valid title to the tract she bought. By an inspection of the premises she would have learned only that part of the building was on the land she was about to buy to which the owner had good title, and that such owner was in possession of the building and of both lots. There was, therefore, nothing of record nor on the premises to advise her or put her on inquiry concerning the pre-existing mortgage on the other lot.
The situation would have been materially different if, when the sale of the second lot was made, a vendee of the original owner had been in possession. The purchaser of the second lot would then have had notice of the fact that the house was partially on the premises she was about to buy, and that it was in the possession of a stranger. She might well be held, as the purchaser has been in many of the cases to which we were cited, to have been thus put upon inquiry into the in
Here the question is whether, where there was nothing in the records of his title or upon the premises to give the purchaser notice, she was bound to examine the record title of the other lot for the purpose of ascertaining whether anything in that title affected her land.^It is clear on principle that no such duty was imposed upon her. When the mortgagee loaned money on the first tract, he had corresponding notice of what appeared upon the records and of the facts he would have learned upon inspection of the premises. If he had made such inspection, he would have ascertained that part of the building was on the second tract. He could' have had full protection against the rights of an innocent third person subsequently buying the property from his mortgagor, as by procuring from the mortgagor an express agreement for an easement as a condition of making the loan and by recording it. Implied easements of this character are not to be made the basis of damage to innocent third persons. See Swedish-American Nat. Bank of Minneapolis v. Connecticut Mut. Life Ins. Co., 83 Minn. 377" court="Minn." date_filed="1901-06-07" href="https://app.midpage.ai/document/swedish-american-national-bank-of-minneapolis-v-connecticut-mutual-life-insurance-7971870?utm_source=webapp" opinion_id="7971870">83 Minn. 377, 383, 86 N. W. 420. There is no reason for theyespecial protection of such an implied easement, or for extension of the ordinary rules of constructive notice to enable persons claiming them to be protected from the harm which they had the first opportunity to avoid. See Miller v. Hoeschler, 126 Wis. 263" court="Wis." date_filed="1905-11-14" href="https://app.midpage.ai/document/miller-v-hoeschler-8188338?utm_source=webapp" opinion_id="8188338">126 Wis. 263, 105 N. W. 790; Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. 580. The purchaser was not bound to examine the title to the lot she did not buy.
Order affirmed.