Merritt v. Northern Railroad

Hand, J. An objection is made, that the deed or instrument given by Magill to the defendants, the Northern Railroad Company conveys no land, or that the description is so vague that it is void for uncertainty. No doubt where a particular parcel is intended to be conveyed, it must be described so as to be capable of location. (4 Cruise, 38, 43. Rollin v. Pickett, 2 Hill, 552.) But it has been held, that articles to have a way at so much per annum, was a grant and not a covenant for enjoyment. (Holmes v. Sellers, 3 Lev. 305. And see Jackson v. Livingston, 7 Wend. 141. Corbin v. Jackson, 14 Id. 619. Fish v. Hubbard, 21 Id. 651. 1 R. S. § 748 § 2. Douglass v. New- York and Erie Railroad Co. Clarke, 174.) Here the lot is described [608] as being in the town of Malone, and owned And occupied by Magill. And the location of the road by Appleton is mentioned. The release or grant, I think, is not void for want of description. And the payment of the additional sum of $150, and possession taken of a new location as a substitution for the first location, according to the further provisions of said instrument, was valid, and gave to the company at least an equitable right to the site of said new or substituted location of their road. Admitting the grant or release to be valid as between the parties to it, have the defendants lost their preference by their neglect to place it upon record ? The testimony is very conflicting as to the condition of the lot at the date of the mortgage to the plaintiffs. According to the recollection of two of the witnesses, the road was then all graded across it. Others do not recollect this fact, and one is very positive that the fence had not then been built, nor any digging done. It is very evident that the plaintiff had no actual knowledge that the defendants had a conveyance or interest in any part of the land. To charge a purchaser with knowledge of a conveyance to one who neglects to record that conveyance, the evidence should be satisfactory that possession had been taken and kept in pursuance of the deed. It may be that the defendants had begun to excavate on the lot before the mortgage was given; but it can hardly be said, from the evidence, that the defendants have proved more than that the stakes had b,een placed by the engineers, and the post holes dug, and some of the posts set, and perhaps some of the fence made. It seems that the defendants were authorized, before the act of 1848, (Laws of 1848, ch. 140,) to enter upon lands and make examinations and surveys for the purpose of selecting a route. (Bloodgood v. Mohawk and Hudson Railroad Co. 18 Wend. 9. Rogers v. Bradshaw, 20 John. 735. Polly v. Saratoga and Washington Railroad Co. 9 Barb. 458.) And this power was expressly given by the act of 1848, (ch. 140, § 19,) subject to responsibility for what damage might be done to the land. Although this company had been chartered before that act, its provisions were made applicable. (§ 46.) The plaintiffs must be considered as having an [609] interest, under the 20th section of the same act. (And see Ledyard v. Butler, 9 Paige, 136.) If the defendants, at the time the mortgage was given, were doing nothing or very little more than they- were authorized to do, without first obtaining title, their acts were not notice of title to a bona fide purchaser. Possession no doubt is sufficient to put a party upon inquiry. (Taylor v. Stibbert, 2 Tes. Jr. 440, and notes. Daniels v. Davison, 16 Id. 254. 3 Sug. V. and P. 452, 468, 9. Braman v. Wilkinson, 3 Barb. 153. Spofford v. Manning, 6 Paige, 383. Governeur v. Lynch, 2 Id. 300. 4 Kents Com. 179. Fort v. Burch, 6 Barb. 78.) But it is not every act upon land that constitutes possession, for the -purpose' of-notice. (McMechati v. Griffing, 3 Pick. 149.) And in this state great reliance is placed upon the title as found recorded. (Ledyard v. Butler, supra. Jackson v. How, 19 John. 83. Fort v. Burch, supra. And see Dey v. Dunham, 2 John. Ch. 182; S. C. 15 John, 555 ; Jackson v. Van Valkenburgh, 8 Cowen, 260.) Upon the whole, I am inclined to the opinion, that the possession of the defendants was not sufficient to give notice to the plaintiffs, or put them upon inquiry. The latter were therefore, in this respect, bona fide purchasers. - But were they bona fide purchasers as to all of the consideration? Where the question is, whether title passes, I think, notwithstanding a portion of the consideration is a pre-existing debt, the grantee may be considered a bona fide purchaser, under our law. But this is a case of mere security, and nearly three fifths of this mortgage was given to secure an old debt. The plaintiffs held the notes of Magill & Sons, and it does not appear that those notes were given up. On the contrary, the agent and clerk of the plaintiffs testifies that he applied to Magill to get security for them, and tried to pursuade him to mortgage real estate for such security. The point then is, whether a mortgage given to secure a preexisting debt shall have preference over an unrecorded grant or release, given for a valuable consideration. In order to give the recorded conveyance a preference from that circumstance alone, it must be to a bona fide purchaser. It must be a purchaser for a valuable consideration paid or parted with, and in [610] the belief that the vendor had a right to sell, and without any suspicious circumstances to put him upon inquiry. (Jackson v. Cadwell, 1 Cowen, 641. Willoughby v. Willoughby, 1 T. R. 763. Hardingham v. Nichols. 3 Atk. 304. Story v. Lord Windsor, 2 Id. 630. Swazie v. Burke, 12 Pet. 11. Durell v. Haley, 1 Paige, 493. Lupin v. Marie, 2 Id. 169. 3 Sug. V. and 469. 2 Story’s Eq. Jur. 1502.) It follows, that as against the defendants, the plaintiffs must be considered bona fide purchasers, only to the amount they paid or advanced in. consequence of receiving the mortgage, (Williams v. Smith, 2 Hill, 301.) And as to that, the land not conveyed to the defendants must be first sold. [Franklin Special Term, February 10, 1852. Ordered accordingly. Hand, Justice.]