Fitzhugh v. Barnard

Manning J.: This is a bill to remove a cloud from complainant’s title. It prays a release from John L. Barnard, one of the defendants, of an alleged pretended title set up by Mm to the premises mentioned in the bill, and an accounting by him and the • other defendants, for the rents, •profits and use of a boom, situated upon and occupying •a part of the premises, for the years 1860 and 1861. We entertain no doubt as to complainant’s title, and Ms right to a release from the defendant John L. Barnard. The land in controversy was taken up by -Henry Howard, in 1829. In July, 1831, it was conveyed by Mm to Lauren P. Riggs, from whom both parties claim title. On the 3d October, 1832, Riggs mortgaged the land to Henry Howard and Ralph Wadhams, for one thousand -dollars. This mortgage was afterwards foreclosed by How•ard and Wadhams, in the Supreme Court of the Territory of Michigan, and the mortgaged premises were sold and deed given under the decree to Howard & Wad-hams, by William Draper, master in chancery, on the 18th April, 1835. The master’s deed was recorded iu Oakland county, instead of Saginaw county where it should have been recorded. On the Ad May, 1836, Howard & Wadhams conveyed to Fitzhugh, the complainant, •Such is complainant’s title from Riggs. Now for Barnard’s title. On the 9th September, 1856, twenty yeárs after Fitzhugh had acquired his title, Lauren P. Riggs conveyed the premises to Jeremiah Riggs, with a covenant of seizin, and against incumbrances, [110] “except a mortgage given in 1830, or 1831, for one thousand dollars, to Howard & Wadhams.” Jeremiah Riggs, on the 5th March, lSSI, quit-claimed one undivided half of the premises to J. G. Sutherland, who, on the 10th April, 1860, quit-claimed to J. White, who, on the same day, quit-claimed to Barnard. On the 6th February,, Í858, Jeremiah Riggs quit-claimed the other undivided half to defendant Newell Barnard,' who, on the 19th March, 1858, quit-claimed to J. Ij, Barnard. Had the deed from Draper;'-" the master in chancery,, to Howard <fc Wadhams, been recorded in Saginaw county* there could have been no question in regard to complainant’s title. Has J. L. Barnard, by reason of' its not, having been recorded in that county, acquired' a title under the registry laws superior to the title of complainant ? That is the question to be answered: and ' the answer to it depends on the answer that may be given to another question, viz.: is he a bona fide purchaser-without notice of complainant’s title? If he and those through whom he claims had notice that L. P. Riggs had no title when he conveyed to Jeremiah Riggs, it is immaterial whether he or they knew the title to be in complainant or not, or whether he or they did or did not know of the existence of the master’s deed to Howard & Wadhams. No one taking a deed from another knowing him to have no title, or having notice of his want of title, can be a bona fide purchaser. To take a conveyance under such circumstances, to be used against the true title, is a fraud, whether the holder of that title be known or not. If known, it is to defraud a particular individual; if unknown, whoever may hold the title. It is a well settled principle of law, that a grantee is chargeable with notice of whatever appears- in the chain of title through which he claims: —Mason v. Payne, Walk. Ch. 459. J. L. Barnard and his grantors are therefore chargeable with notice of the exception in the deed [111] from L. P. Riggs to Jeremiah Riggs, as well as with notice of the mortgage' from L. P. Riggs to Howard & Wadhams, which wasfr’ecorded and the reeord uncancelled. The deed excepts this mortgage from the covenant against incumbrances. The language of the exception is, “except ing a mortgage given in 1830 or 1831, for one thousand dollars, to Howard & Wadhams.” The mortgage was given in 1832, instead of 1830 or 1831 — twenty-four years before the deed. Here was sufficient notice to have put J. L. Barnard and his grantors on inquiry. With such notice before them, they cannot, in good faith, claim anything in opposition to the mortgage and rights that have accrued under it. Had they gone to Howard & Wad-hams for information, as they should have done, they would have been informed of the foreclosure, and of the purchase by them at the master’s sale. The exception was not only notice of the mortgage, but that it had not been paid by the mortgagor, and, after the expiration of twenty-four years, there was every reason to believe it had been foreclosed. At the same time, the registry of deeds showed that the mortgaged premises, had been conveyed by Howard & Wadhams *to complainant. Nor is this all as to notice to N. Barnard, who was instrumental in getting the pretended title into the hands of his brother. On the 29th November, 1856, he took a lease for three years of the boom, which is on a part of the premises, from one Partridge, who claimed under a lease from complainant — the lease to Barnard in express terms referring to and mentioning the lease from complainant to Partridge. Aside from notice, the evidence in the case, we think, shows that there was nothing bona fi.de in any of the conveyances in the chain of title from L. P. Riggs to J. L. Barnard. We can not think any one connected with the title was deceived by it, or supposed he was acquiring any thing more than the pretext of a title, which he [112] might sell for a greater or less price, to the real owner of the land, or to some dealer in doubtful titles. Complainant was in actual possession of the premises at the time of filing the bill except the part used for the boom. The evidence does not, we think, show him to have been in actual possession of the boom, and it is for that reason insisted by defendants that the bill should be dismissed, not only as to that part of the premises, but also for the part of which complainant was in possession. There was no occasion, it is said, for complainant coming into a court of equity, as the question of title might have been settled in an action of ejectment for the land occupied by the boom. There is some force in the objection. But the part used for the boom is a very small part of the premises in controversy. It is the part covered by the waters of the Tittabawasse River, with a foot path on the bank — the premises in controversy being- bounded by and lying on the south side of that river. Complainant was in possession of all except the bed of the stream and footpath on the bank of the river; .and the title being one and the same, there would seem to be no good reason for dismissing the bjll, or excepting the bed of the stream from the decree. What good would come of an action of ejectment for this part of the premises ? There is no question as to complainant’s title. We have already deci: ded that point. It is no longer open to controversy; and to send the parties to law would only be attended with a bill of expense, an evil in itself. In such circumstances we think the Court was warranted in extending the relief to the premises occupied by the boom. If the position of the parties as to possession was reversed, the case might be different. The bill might be dismissed generally, or as to part only, or it might be retained with instructions to complainant, to bring ejectment for the part in possession of defendant. But a court of equity cannot go further, and inquire into [113] the rents and profits of the boom. This would involve a new inquiry. The question would no longer be one of title — almost the sole inquiry in bills of this description — but one of damages for a wrongful possession. It would be substituting a bill in equity to remove a cloud on one’s title, for an ejectment and action, at law for mesne profits. The wrongful possession of the boom by defendants was the possession of trespassers, for which complainant has a remedy at law, and not the possession of trustees for which they may be called to account in equity. Newell Barnard is a brother of J. L. Barnard, and is charged in the bill with combining and confederating with others to defraud complainant; and the evidence shows him deeply implicated in the fraud attempted to be practiced on complainant. The decree of the Circuit Court as to John L. Barnard and Newell Barnard , is affirmed, so far as it relates to the release from John L. Barnard, the injunction, and costs in the Court below, and reversed as to the rents and profits of the boom. Neither party to recover costs in this Court against the other. And so much of the decree as affects the defendants Avery, Eddy and Murphy, of either of them, is reversed, and the bill as to them is dismissed, with the costs of both Courts. Christiancy and Campbell JJ. [concurred. Martin Ch. J, was absent.