Opinion
July 30, 1915.
Robert W. Bernard, for the appellant.
Judson G. Wells, for the respondents.
Under an executory contract of purchase of land, the buyer has a right of entry and immediate possession. In equity he is looked on as the owner, under the doctrine of equitable conversion whereby "the vendor becomes the trustee of the legal title for the vendee, and the vendee, the trustee of the vendor, as to the unpaid purchase money." ( Moyer v. Hinman, 13 N.Y. 180, 188.) It has long been accepted law that when a man is of right and de facto in the possession of land, he is entitled to impute knowledge of that possession to all who deal for any interest in that property. His possession puts any person so dealing upon inquiry. When such inquiry becomes a duty, the means of knowledge which it affords are regarded as the equivalent of actual notice, since by failing to inquire such a purchaser or mortgagee is visited with the consequences of a knowledge of the title and existing rights of the occupant. ( Pendleton v. Fay, 2 Paige, 202; Trustees of Union College v. Wheeler, 61 N.Y. 88; Holmes v. Powell, 8 DeG., M. G. 572; Hughes v. United States, 4 Wall. 232; Phelan v. Brady, 119 N.Y. 587; City Bank of Bayonne v. Hocke, 168 App. Div. 83.)
What acts constitute such possession of town lots unbuilt upon of the character here involved?
Possession generally is taking control and appropriating, so as to set on the lands some mark of ownership, by acts not casual or for a temporary purpose. To enter lands to cut grass, to pasture the fields, to fell timber, may be trespasses, and, therefore, hardly suffice to show legal possession. Acts of adverse possession under a written instrument are: Where land has been usually cultivated or improved, or substantially inclosed; or if not inclosed, has been used for the supply of fuel, or of fencing timber, either for purposes of husbandry or for the occupant's ordinary use. (Code Civ. Proc. § 370.)
Appellant, however, contends that this adverse possession, which ripens into title in twenty years, is essentially different from the acts of a lot purchaser in possession as against a mortgagee. The acts of a purchaser in possession are such as evince a purpose of ownership. Even if such possession has recently begun, it may, to a buyer or incumbrancer, indicate the occupant's title. If there be any distinction in degree of strictness of proof, greater stringency may be required in the instance where, by the Statute of Limitations, possession is in the course of becoming the root of a hostile title, than where acts of occupancy merely serve as notice of an existing title already validly obtained. The latter acts are merely such as apprise the public that the land has been appropriated and occupied.
The respondents' acts here were:
In 1906 or 1908 a wire fence was put up along the two street sides. The inner boundaries had been fenced by the adjacent neighbors. Along the street the respondents put up posts, sometimes pieces of iron pipe, with wire running all around. This fence was stated to be a foot and a half high. There were also sticks and pieces of branches used. Nearly every day Mrs. Campomenosi went on the premises. Her husband was also often seen working there. There was also a filling in the lots originally low and swampy, so as gradually to raise the grade. In 1906 stones were also brought on the lots for foundation of a future cellar. When some were removed by a contractor, one Luppinacci, Mrs. Campomenosi called for them, whereupon he put them back. Later shrubs were planted there, and apple and peach trees, with some small grape vines. These trees were testified to have been there three years, which, if counted from date of the trial, would extend back to 1911. In November, 1912, respondents contracted to build a house there, but this was subsequent to the mortgage in suit. All of this evidence stands uncontradicted.
It is a fair inference that in July, 1911, when Le Grange gave this mortgage the mortgagee had constructive notice of the series of improvements; of the process of gradually filling the lots and grading them, fencing along the street lines, all of which was unmistakably to better the lands and to fit them for residence. The fencing seems to be quite as substantial as that in Barnes v. Light ( 116 N.Y. 34). The larger foundation stones grouped for the coming cellar, with the planting of shrubs, vines and small trees, were other marks of proprietary ownership. An assertion of ownership appeared in the demand for the stones, which Luppinacci respected, and caused the foundation stones to be replaced.
Respondents' title, as distinguished from possession, was also manifested by the lots being always assessed in the names of respondents, who also paid the taxes.
Such marks of occupation do not stand alone. The mortgage itself showed the name and business of a land development company, by the recital that the Halley Land and Improvement Company had requested the loan. The lots were not only mortgaged as distinct units, by lot numbers, but the purpose and fact that such lots are for separate disposal is brought home to the mortgagee by his covenant, upon the payment of $100, to release any lot from the mortgage lien. The mortgagee, therefore, is chargeable with notice of the practice of making sales of such lots to householders. Such a lot owner's progress in improvements carries a significance greater than like improvements in a field, or in a forest remote from the passing view of the public.
This possession, kept up for seven years, amounted to a notice to the mortgagee, so that he could not ignore these patent facts and claim to be a bona fide owner. In the words of GIBSON, C.J.: "It certainly evinces as much carelessness to purchase without having viewed the premises, as it does to purchase without having searched the register." ( Woods v. Farmere, 7 Watts [Penn.], 382. See, also, Garbutt Donovan v. Mayo, 128 Ga. 269; 13 L.R.A. [N.S.] 58.)
This meets also the appellant's point that such possession, to be available, must be inconsistent with the title of the mortgagor. It is not shown that the Halley Land and Improvement Company was itself engaged in grading or improving any such sunken lots. The absence of such testimony left in full force the inference by the mortgagee that it was the vendees who were thus improving under their purchase. The outward appearances, therefore, supported the exclusive possession of the respondents, which, it has been found, was well known in the community.
Counsel urges that notice of an unrecorded title is not made out by any occupation, short of actual residence. This would amount to saying that inquiry is never a duty when buying lots that are unbuilt upon — a doctrine quite beyond support.
The duty of inquiry seems specially to rest on one lending money to such a land development company, whose course of business in executory contracts of sale exposes the vendees to lose both land and improvements through the lien of such a mortgage; and the courts should not mitigate the enforcement of this duty of the lender as against innocent vendees.
A clerical error in the sixth finding of fact should be corrected. The plaintiff's assignor was not Le Grange, but Frederic N. Gilbert. The latter portion of this finding as corrected and amended should read: "That at the time of giving the mortgage referred to in the complaint, and hereinafter described, the plaintiff's assignor, Frederic N. Gilbert, could readily have ascertained that the said lots were owned by the defendants Campomenosi under their contract with the Halley Land and Improvement Company, and that they were claiming ownership thereof, by virtue of said contract, which ownership was manifested by an open, visible and exclusive possession thereof, as set forth in the two preceding findings of fact, numbered fourth and fifth."
The twenty-first finding of fact should be stricken out as unnecessary.
The judgment is, therefore, affirmed, with costs.
JENKS, P.J., THOMAS, STAPLETON and RICH, JJ., concurred.
Judgment affirmed, with costs.