Lorbach v. Myers

MAUCK, J.

“Under these circumstances it is clear that Lorbach paid for and thought that he was securing not only the fee to the property described but an easement over other abutting property giving him access to the rear of the property from the public street. This is a valuable right and deserving of protection if its protection is not prevented by the superior rights of others.

The only question that is open is whether or not the defendant, the present owner of the fee, had notice when he purchased the 12 foot strip that the same was burdened by the right of the plaintiff to pass thereover from the street to the rear of the Lorbach property.

His immediate deed gave him no such notice nor did any of the preceding conveyances back to and including the administrator’s deed. However, when in tracing his. title he came to the administrator’s deed he could not rely exclusively upon its recitals. Another rule then intervened. This required him to ascertain the nature and extent of the administrator’s powers and particularly the power of the administrator to make the conveyance upon which reliance was placed.

Thompson on Real Property, Section 2718, speaking of one holding through a judicial sale says:

“He is charged with notice of such material facts as the record of the proceedings under which he derives title discloses and he will be presumed to have examined the same before becoming a purchaser.” Elsewhere it is said:

“Furthermore, the purchaser at a judicial sale is charged with notice of all material facts relating to the condition of the property or the title to be acquired that are disclosed upon the face- of the pleading and record of the proceedings in which the sale was had.

16 Ruling Case Law, 140.”

The defendant in this case, if he had undertaken to trace the title to its source, would have found that the Emmitt estate owned lot 104 and that the 12 foot strip was a part of that lot. He would have learned that in the ap-praisement this particular strip was impressed with an easement for the benefit of other lots. He could have seen that the part of the same lot 104 conveyed to Huffman and Breece “allowed” a 12 foot roadway on that lot to the rear of the store room, and this would have been sufficient warning for him to ascertain to whom this roadway had been conveyed.

“Not only is a purchaser thus charged with a constructive notice of everything material in the deeds which form the direct chain through which his title is deduced, but if any of these conveyances should contain a recital of or reference to another deed otherwise collateral, and not a part of the direct series, he would by means of such recital or reference have notice of this collateral instrument, of all its contents, and of all the facts indicated by it which might be ascertained through an inquiry prosecuted with reasonable diligence.”

Pomeroy’s Equity, Section 628.”

Both the parties hereto have substantial rights. The plaintiff’s rights are the oldest in point of time. He paid for the easement and secured its recital in his deed. The defendant and his predecessors likewise paid for the 12 foot strip in ignorance of the easement. They could have protected themselves by an inspection of the proceedings under which they hold. As between the two the rules of equity favor the plaintiff.

Thomas, J., concurs. Middleton, PJ., not sitting.