Bauer v. Pierson

By the Court, Niles, J.: It is conceded upon both sides that on the 20th of May, 1869, Fortune, the appellant, and Pierson, the mortgagor, were tenants in common of the mortgaged premises, each owning the undivided one half. Upon that day Pierson conveyed the entire premises to Fortune. Upon the 22d of May, 1869, Fortune reconveyed to Pierson the undivided one half of the premises. These conveyances were parts of one transaction, and were intended to give to each of the cotenants the benefit of all outstanding titles previously purchased by the other, and did not otherwise affect their relative interests in the land. Neither of these conveyances was recorded until after the execution of the mortgage in suit. In November, 1869, the defendant Pierson opened negotiations with the plaintiff’s testator, through his agent and attorney, Taylor, to procure a loan of seven thousand dollars, proffering a mortgage upon the premises as security. The loan was subsequently made, and the mortgage in suit was executed. Fortune was made a party defendant as one [298] claiming an interest in the mortgaged premises, which was averred in the complaint to be “subsequent to the lien of plaintiff’s mortgage and subject thereto.” He answered, averring his ownership of an undivided one half of the land, and denying that his interest was subject or subordinate to the lien of the mortgage. The Court below found, among other facts, that “the plaintiff’s testator had notice of defendant Fortune’s rights at the time he lent the money to Pierson and took the mortgage mentioned in the complaint;” and the alleged error of the Court in this finding is the principal ground upon which a reversal of the judgment is asked. We think the testimony is sufficient to support the finding. There was evidence tending to show that, pending the negotiations for the loan, Taylor, the agent of the plaintiff’s testator, visited the premises and made inquiries of the tenant in possession as to its ownership, and was told by him that it ,was the land of Fortune, and that he held it for Fortune. Upon Taylor’s suggestion that he “thought Mr. Pierson owned it also,” he replied that they (Fortune and Pierson) substantially owned it together, and that they were partners in the land. Conceding that the mere possession of the tenant was not inconsistent with the sole ownership of the land by Pierson, still the declaration of the tenant that he held it for Fortune, and that Fortune was an owner, was sufficient to put Taylor upon inquiry as to Fortune’s interest. And when we consider the additional fact that the conveyance from Fortune to Pierson was of a date long prior to the conversation referred to, and had remained unrecorded for more than six months at the time it was exhibited to the plaintiff’s testator, we cannot avoid the conclusion that the exercise of ordinary diligence would require that further inquiry should be made of Fortune, whose residence was known, and who was easily accessible. But it is urged by the appellant that, admitting the rights [299] of Fortune to be as claimed by him, the decree should have been for a sale of the entire mortgaged premises, but reserving those rights. It is now too late to raise this question. The transcript does not set forth the decree, and therefore the alleged error is not apparent upon the judgment roll, and it could appear to us in no other way. The case was evidently tried upon the theory that the rights of the parties were to be finally determined in this suit. We are satisfied with the conclusions of the Court upon this point, and shall not go into the consideration of any technical question not distinctly made in the Court below, and which does not involve a substantial right. Judgment and order affirmed. Mr. Chief Justice Wallace did not express an opinion.