Reichert v. Neuser

PiNNey, J. The defendant Neuser could trace and make out his title to the premises in question only by and through the deed of conveyance from Belle Farr to Thomas and Isabella Nelson. In this deed it was covenanted that said premises were “free and clear of all incumbrances whatever, except a certain mortgage of $900.” It seems to be well settled that, although a purchaser of real estate may be totally ignorant of the recitals in his own deed, yet every [516] recital of a fact affecting the title to the premises, contained in it, will be presumed to be known to such purchaser, and he will be affected with notice thereof in the same manner and to the same extent as though he had actual notice; and so it is held that notice derived from the recitals in the deed to a purchaser is actual notice, although it rests on a presumption of law. Mr. "Wade, in his book on the Law of Notice, thus states the rule, and cites a great number of authorities to sustain it. In many cases where it is sought to charge a purchaser with notice of the recitals contained in instruments affecting the title, other than his own immediate deed, it is characterized as constructive notice or presumptive notice. Wade, Notice, §§ 308, 309. In this state the rule is broadly laid down that, “ where a purchaser cannot make out a title but by a deed which leads to another fact, he will be presumed to have knowledge of that fact,” and clear and decisive authorities to that effect were cited. Pringle v. Dunn, 37 Wis. 450, 466. Accordingly, it was there held that the purchaser must be chargeable with what appeared in his chain of title, and there being a clause in the deed to his grantor, that the premises “ are clear and free from all in-cumbrances, except a mortgage to the La Crosse Railroad Co., which I am to save the said B. harmless from,” thus referring to the mortgage as an existing incumbrauce, the purchaser could not, in good faith, claim that it was not a lien on his property. The recital is sufficient if the party cannot make out his title to the particular purchase without an instrument which, by its recitals, leads him to the fact of which he is to be charged with notice. It is objected that the recital in question is not sufficiently specific and certain to operate as notice, within the rule, and does not contain sufficient information to put a man of reasonable prudence upon inquiry leading to the truth, so as to operate as notice. In Bennett v. Keehn, 67 Wis. 154, there was a deed with an exception from the covenants, as' [517] in this, “ except a mortgage of $1,400,” and it was said that this exception in the deed in question, in the covenant against incumbrances, is undoubtedly notice to the grantee of the existence of such mortgage. In Reed v. Gannon, 50 N. Y. 345, a covenant by the grantor, in a deed conveying certain property, in which he covenanted to pay off and discharge “ any lien, mortgage, or incumbrance, of whatsoever kind or description, existing on the same, within ninety days,” was notice to the grantee of incumbrances. And in Hamilton v. Nutt, 34 Conn. 501, the deed under which the grantee claimed' was made subject to “ two mortgages for $2,000,” and contained a warranty against all claims “except said mortgages.” There were two prior mortgages,— one of $1,500, which was recorded, and of which the grantee had actual knowledge, and one of $2,000, which was not recorded, and of which he had no notice except such as was given in his deed. He had been assured by his grantor that his rights would be subject only to the mortgage of which he had knowledge. He did not read his deed, and was not aware of the clause referred to; and, against the objection that the exceptions were vague and uncertain, it was held that*he would be presumed to know the contents of his deed, and that the exceptions were sufficient to put him upon inquiry and charge him with a knowledge of such facts as might have been ascertained by proper inquiry. Price v. McDonald, 54 Am. Dec. 657; Willis v. Gray, 26 Am. Rep. 328. Inquiry of the grantor in the deed to Thomas and Isabella Nelson, in which the recital in question is contained, would, no doubt, have resulted in the ascertainment of the name of the mortgagee and holder of the mortgage, and all other material facts. Conceding that the defendant Neuser and the Nelsons were severally purchasers for value under their respective deeds, and without actual notice of the existence of the mortgage in question, yet the recital contained in the deed through which alone they could trace title to the prem [518] ises was notice of the existence of the mortgage, and rendered their rights subject thereto. An inquiry conducted with reasonable diligence would have led them to actual knowledge of the facts. The fact that the mortgagee, Mrs. Bensing, as appears from the evidence, withheld the mortgage from the record until after the assessor for 1890 had completed his labors, in order that she might escape taxation on account of the mortgage, would not, of itself, prevent her from subsequently enforcing it. The objection that the transfer of the note and mortgage by her to the plaintiff was not sufficiently proved is untenable. The plaintiff offered in evidence the note and a duly witnessed and acknowledged assignment from her to him of the mortgage. Objection was made to their reception, and it does not appear that the court made any express ruling thereon; but, having found for the plaintiff, it must be assumed upon appeal that the objections made in the circuit court were overruled, especially as the evidence objected to was essential to a finding for the plaintiff. There are no other questions requiring consideration, and it is clear that.there was no error in the judgment appealed from. By the Court.— The judgment of the circuit court is affirmed.