Essex County Nat. Bank v. Harrison.

did not have the actual case before him for consideration, and the words quoted are mere obiter dicta.

The question is not without difficulty, and I do not find it necessary to decide it, for two reasons.

In the first place and this involves the next question argued― granted that the complainant's counsel is right in his contention as to the scope of this section, still the effect of it is simply to deprive the holder of it of any benefit from the registry of the instrument as a deed, as a matter of notice to all the world. must stand as if his deed were not recorded.

He

Then the next question is, what is the effect of that result in the present case?

It is admitted that the grantee took immediate possession. And it is argued by the counsel of defendants that possession itself is notice.

In answer to this, however, counsel for the complainant contends that we must look to the next section of the statute for the character of the notice; and that section declares the instrument void as to a certain class of persons if not recorded, and that such is the category in which the defendant Edwards finds himself here that his deed is absolutely void as against a subsequent judgment creditor or bona fide purchaser not having notice thereof. He contends that the notice there referred to is a notice of the actual character of the instrument, and that the possession of the defendant Edwards, under his deed, could not have the effect of giving the complainant notice of the actual character of this instrument.

The complete and simple answer to this argument, as it seems to me, is that the effect of the constructive notice, due to possession, is a notice of everything which a party interested in the premises would get by inquiring of the party in possession. In other words, the actual possession of the premises puts any person having a claim, or seeking to acquire title thereto, to an inquiry of such person as to what his title actually is; and until the complainant has actually made inquiry and has received an untrue auswer from Mr. Edwards in this case, he is not in a position to say that he is not chargeable with notice of what his

Essex County Nat. Bank e. Harrison.

actual right and title was and is. Non constat, if he had inquired of Mr. Edwards, he would not have told him the precise situation of affairs.

The authorities in this state on this topic are uniform, and, I think, fully support the defendants' position. Havens v. Bliss, 11 C. E. Gr. 363; Wanner v. Sisson, 2 Stew. Eq. 141, 150; Cooke v. Watson, 3 Stew. Eq. 345, 352.

For these reasons, it seems to me that the complainant's case fails.

But, in the second place, I think this court is, in the present situation of the affair, without jurisdiction, and such want of jurisdiction is set up in the answer. The complainant's case does not appeal to the ordinary jurisdiction of the court. Neither fraud, accident nor mistake is set up. Its standing is simply that of a person who holds an absolute legal title, but is out of possession, and asks the court to remove a cloud upon his title which has in it none of the elements of fraud, accident or mistake. In order to induce action on the part of the court, his own title must be perfectly clear and paramount to the supposed cloud, and he must not be in the situation of bringing an action of ejectment in the court of chancery.

The doctrine of Sheppard v. Nixon, 16 Stew. Eq. 627, applies here.

Under these circumstances and in this state of the law, it seems to me that the complainant, before coming here to ask the aid of this court, should first establish its title at law. There is no difficulty in the way of its so doing. If its contention here be right it can maintain an action of ejectment, and when it has done that and obtained either the possession or the immediate right to possession, and not before, it may be I do not say that it will be-in a position to ask the aid of this court to perfect its record chain of title by declaring that its judgment lien was prior to the conveyance in question.

My opinion is that the complainant's bill must be dismissed unless it shall elect to bring an action of ejectment, in which case the bill will be retained a sufficient time to permit such

Thiele v. Thiele.

action to be brought to trial and complainant's right finally determined.

I do not find it necessary to determine, at present, whether or not the defendant Edwards is entitled, under the circumstances, to be subrogated to the rights of Hawkins, under his title, at sheriff's sale. Should the complainant decide to bring an action of ejectment, and the bill is retained for that purpose, and the complainant succeeds in that action, the defendant Edwards will have an opportunity to present that defence by a proper pleading in answer to the complainant's title.

CHARLES THIELE

V.

AUGUST THIELE et al.

[Decided May 18th, 1898. Filed January 4th, 1899.]

A widow continued to occupy the premises of her deceased husband under an arrangement with her children that she might do so in all respects as if she were the owner, and a part of the arrangement probably was that she should pay the taxes, water rents, insurance and repairs. This she did for several years and then fell in arrears, and one of the children advanced the money to pay the taxes, with the consent of the others, and on proceedings for partition, claimed a lien for the amount so advanced upon the shares of his brother and sisters.-Held that, although the case was probably not within the rule laid down in Spinning v. Spinning, 16 Stew. Eq. 215, yet that the party advancing was entitled, under the circumstances, to a lien for the amount advanced upon the fund, the proceeds of the sale in partition.

In partition. Exceptions to master's report, finding a lien upon the land held in common in favor of one of the tenants, based upon advances made by him for the payment of taxes and

assessments.

Mr. Thomas F. Noonan, Jr., for the exceptant.

Mr. James A. Gordon, contra.

Thiele v. Thiele.

PITNEY, V. C.

The ancestor died in 1880, leaving a widow and four children-two sons and two daughters-all of whom were adults. The indications are that the widow was well advanced in years. Besides the land in question, a house and lot, the ancestor appears to have left some little personal property, which was taken possession of by the widow and partially distributed among her children.

The parties were foreigners and not familiar with our laws, and seem to have supposed and acted upon the idea that the widow was the absolute owner of the land. At any rate, by the consent of all the children, she continued to occupy the homestead as her own, renting out a portion and taking the rents and profits. She also paid the taxes, water rents and insurance, and made the repairs for several years, and it may be fairly taken to have been a part of the arrangement between her and her children under which she occupied her homestead that she was to incur those expenses. So that the case is probably not within the rule established in Spinning v. Spinning, 16 Stew. Eq. 215.

About the year 1890 she became unable to pay all these expenses and support herself, and her son August Thiele advanced money for that purpose and also to pay taxes, water rents and insurance, amounting to about $800.

Shortly before she died, August ascertained the truth as to the situation of the title and conferred thereon with his brother and sisters, and they appear to have all agreed that he should be reimbursed for what he had advanced, and for that purpose a mortgage was prepared for three-fourths of the amount, to wit, $600, to be executed by the two sisters, brother and mother to him. The mortgage was executed by one of the sisters, a Mrs. Kunz, since deceased, and by the mother, but the other brother and sister refused to join in it. In that condition of affairs the bill for partition was filed by Charles Thiele against his mother, his brother August and a sister, Mrs. Shock, and the children of the deceased sister, Mrs. Kunz. The mother died after bill filed. August, by an answer, set up a lien upon

Thiele v. Thiele.

the premises for taxes, assessments, water rents, repairs and insurance paid. The matter was referred to a master, who reported in favor of August for the taxes of 1888, 1891, 1892 and 1894, with interest; for water rents for the same four years, with interest; for an assessment for benefits of $188, made in the year 1891, with interest; also another assessment for benefits made in 1893, with interest; and for repairs and insurance, several small sums; in all, $583.06.

The only ground taken in argument against this finding was that these payments were not made, either directly or indirectly, by August Thiele, but were made by his mother out of her own funds. It was not contended that if he had actually supplied the money for that purpose he should not be reimbursed out of the property.

Admitting that it was the legal duty of the widow, under the circumstances, to pay these taxes, yet, if she failed to pay them, they and also the water rents would be a lien upon the premises, and the property would be sold to pay them.

The evidence shows that it became necessary during the latter part of the widow's life, in order that she should be supported, to relieve her of the burden of paying these taxes, and, under the peculiar circumstances of the case, I conclude that the children, by their acquiescence in their mother's occupation and with their knowledge of her poverty, waived their right, if they had any, to have her pay the taxes and water rents. The two assessments for benefits stand on a different basis. It was not her duty to pay those.

So that the only question is the one of fact which was litigated before the master, whether August Thiele actually furnished the money to make these payments. On this question I think the clear weight of the evidence is in favor of the master's conclusions.

For these reasons, I will advise that the exceptions be overruled.