Opinion
05-07-1910
PHELPS v. KUNTZ et al.
Gifford & Miller, for complainant. W. C Headley & Son, for defendant land company. Osborne & Ashley, for defendants Kuntz and wife.
Bill by Hannah Phelps against John Kuntz and others. On demurrer to bill. Sustained with leave to amend.
Gifford & Miller, for complainant. W. C Headley & Son, for defendant land company.
Osborne & Ashley, for defendants Kuntz and wife.
EMERY, V. C. To this bill filed by complainant, Hannah Phelps, against the Greylock Land Company and John Kuntz and wife, the corporate and individual defendants have filed separate demurrers for want of equity, and Kuntz and wife also demur for multifariousness. The general object of the bill is to relieve the complainant from the effect of a mistake in erecting her dwelling house so that it is partly on the lot of the defendants Kuntz and wife, and the claim to relief is based on the following facts disclosed by the bill: The land company on July 5, 1906, was the owner of several hundred lots numbered on a map, one of which lots was then purchased by complainant, and was in the center of a block of unimproved lots 725 feet in length. The deed to complainant described her lot by metes and bounds and its beginning point as the southeasterly corner of lot No. 463A on the map, and at the time of the purchase the lot was a vacant lot, and there were no monuments of any kind on the block or elsewhere to designate its exact location in the block. The complainant informed the officer of the company with whom she negotiated the purchase that she bought the lot with the intention of building on it and desired her lot located and surveyed for that purpose, and she contracted with the company, for the compensation duly paid, to survey and stake out her lot purchased. The lot was so located by agents of the company after the purchase and its location indicated by stakes on the lines of the lot. Relying on this location, complainant in good faith, and supposing the location to be correct, erected a house on the lot as staked, which was completed in November, 1906, and from that time the house and the lot as staked out have been occupied by her. The land company on May 23, 1907, conveyed to the defendants Kuntz and wife the property adjoining on the north and designated as lots 463 and 463A. These were also described by metes and bounds in the conveyance by the company to Kuntz. There was in fact a mistake in the location of complainant's lot, and to the extent of about 19 feet the house erected and occupied by complainant is on lands covered by Kuntz's deed. Kuntz and wife refuse to allow complainant to remove her house off their lot and threaten to demolish it unless complainant will buy the land from them at an exorbitant price.
Upon these facts, and as against her grantors, the land company, who located her lot, with the view of indicating its lines for the purpose of erecting her house, the complainant had an undoubted equity for relief against its subsequent appropriation for its own benefit, of the complainant's improvement on its lands, evidenced by their own incorrect location and made under the mistake that she was improving her own land. An attempt to secure this benefit resulting from its own act, in inducing complainant to build on its lot, is an actual and not a mere constructive fraud, and, if the company still held the land on which complainant has built by mistake, relief could be given of the character given in McKelway v. Armour, 10 N. J. Eq. 115, 64 Am. Dec. 445 (1854). If this right to relief against the land company is enforceable against its subsequent grantees, then the company, as the creator or originator of these equities, is properly a party to the bill to enforce them, and its joinder with the subsequent purchaser is not multifarious.
On both the demurrers, therefore, the substantial question is whether the equity existing against complainant's grantor is enforceable against the subsequent purchaser, and whether the allegations of the bill are sufficient to show that these equities against the company continue against Kuntz and wife. On this point the bill alleges (paragraph 13) that "complainant was in full, open, peaceful, and undisputed possession of the said property long before and at the time said Kuntz and wife purchased from the land company, and still is in possession, so that the said Kuntz and wife had full and ample notice." The bill, however, fails to show of what facts or equities these purchasers from the company had notice. It should have stated that the purchasers had notice of the facts constituting the complainant's equity it now asserts against the company, giving specifically the facts on which the equity is based of which it is claimed they had notice. The open and exclusive possession by the complainant is one way of proving the notice of the equities,and by many courts is held to be constructive notice of all facts concerning the occupant's title, which might have been ascertained by due inquiry. Van Keuren v. Central R. R. Co., 38 N. J. Law, 165, 167 (Sup. Ct. 1875); 2 Pom. Eq. Juris. § 615. The notice is of the equitable as well as legal title (Gale v. Morris, 30 N. J. Eq. 285, 290 [Err. & App. 1878]), and possession by a person other than the record owner is notice of the occupant's rights, whether the possession is known or not (Hodge v. Amerman, 40 N. J. Eq. 99, 104, 2 Atl. 257 [Van Fleet, V. C. 1885]). But the mere statement of the fact of possession is not, as a matter of pleading, a sufficient or issuable statement of the equities of which the purchaser had notice. The bill in this respect is defective, and, as I intimated at the hearing, should be amended.
It was not claimed at the hearing or in the brief that complainant was entitled to equitable relief against the land company alone, and, unless counsel desire to be further heard on this point, an order will be advised sustaining both demurrers, with leave to apply to amend the bill.