George v. Kent ( 1863 )

Chapman, J.

It is not denied that the plaintiff has a right to redeem on payment of the amount for which conditional judgment was rendered; but he claims the right on payment of a less sum. He insists that as his deed was a deed of warranty, and was made and recorded, while the deed to Murphy was unrecorded, he has a right to hold the Murphy lot liable to contribute to the payment of the Cook mortgage. This position would be correct if there were no other facts to affect it. But the defendants reply that he had notice of the deed to Murphy. The fact relied on to prove such notice is, that Murphy’s lot adjoins him on the west, and in his deed he is bounded westerly on land of Patrick Murphy. The court are of opinion that this was sufficient notice of Murphy’s title. Before the enactment of Rev. Sts. c. 59, § 28, actual notice of an unrecorded deed was not necessary ; and circumstantial evidence of title was held to be sufficient. But the Rev. Sts. made a change in this respect, and required that there should be actual notice. Curtis v. Mundy, 3 Met. 405. Pomroy v. Stevens, 11 Met. 244. Mara v. Pierce, 9 Gray, 306. Parker v. Osgood, 3 Allen, 487. The case of Curtis v. Mundy is, to some extent, overruled by the later cases; yet none of them hold it to be necessary that the notice shall be by actual exhibition of the deed. Intelligible information of a fact, either verbally or in writing, and coming from a source which a party ought to give heed to, is generally considered as notice of it, except in cases where particular forms are necessary. In this case no particular form is necessary. The description of the land in the plaintiff’s deed was equivalent to an affirmation of his grantor that the land lying west of it was owned by Patrick Murphy, by virtue of some proper instrument of conveyance. He knew from this information that Murphy’s title was prior to his own. Having such a title, and the plaintiff having notice* of it, Murphy and his grantees are not liable to contribute towards the redemption of the Cook mortgage. Chase v. Woodbury, 6 Cush. 143. Bradley v. George, 2 Allen, 392.

The plaintiff is entitled to redeem on payment of the amount of the conditional judgment against him, with interest, deducting rents and profits received.