Bump v. Dahl

• Decision Date: 02 March 1965
• Citation: 133 N.W.2d 295,26 Wis.2d 607
• Parties: Marvin V. BUMP, Plaintiff-Appellant, v. Leslie H. DAHL, Edna Dahl, and Carl Dahl, and Merrill Haley, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 295

133 N.W.2d 295

26 Wis.2d 607

Marvin V. BUMP, Plaintiff-Appellant, v. Leslie H. DAHL, Edna Dahl, and Carl Dahl, and Merrill Haley Defendants-Respondents.

Supreme Court of Wisconsin.

March 2, 1965.

Rehearing Denied May 18, 1965.

See 134 N.W.2d 665.

Geisler & Kay, Robert J. Kay, Madison, for appellant.

Stephens, Bieberstein, Cooper, Bruemmer & Gartzke, Madison, for respondents.

HALLOWS, Justice.

The issue presented on this appeal is whether the possession of Bump was constructive notice to the Dahls of his equitable interest in the triangular piece of land. In the trial court's view, Bump's possession was not of such a nature as to require the Dahls to make an inquiry because the subdivision was new and consisted of irregular and contoured large lots; the shape of the lots would require a survey or the seller to point out the lot lines, the lot was purchased not from the owner but through a real estate agency, the plaintiff did not advise the Dahls of his rights and lastly, the possession of the triangular piece of land gave no reason for the Dahls to believe that any part of the lot they were purchasing was a part of the landscaped land visibly identified as Bump's property.

There is no dispute Bump was in possession of the disputed triangle which had been landscaped, used, and incorporated into lot 38 as a part thereof and visibly was no part of the property the Dahls were purchasing. It is well established, possession of land is constructive notice and is sufficient to put the purchaser on his guard of whatever rights the possessor may have in the land if such possession is visible, open, clear, full, notorious, unequivocal, unambiguous, inconsistent with, or adverse to the title or interest of the vendor. Ubbink v. Herbert A. Nieman and Co. (1953), 265 Wis. 442, 62 N.W.2d 8; Brinkman v. Jones (1878), 44 Wis. 498; 55 Am.Jur., Vendor and Purchaser, p. 1090, sec. 716, and p. 1087, sec. 712. Such possession is considered constructive notice of the rights of the possessor, whether the possession is used for the purpose of charging a purchaser with notice of an outstanding equity or of an unrecorded conveyance and thereby defeating any claim under sec. 235.49, Stats. State v. Jewell (1947), 250 Wis. 165, 26 N.W.2d 825; Miller v. Green (1953), 264 Wis. 159, 58 N.W.2d 704, 37 A.L.R.2d 1104; 8 Thompson on Real Property, Possession as Notice, p. 485, sec. 4331.

It is claimed sec. 235.49 has no application because the alleged rights of Bump are based on an oral contract and not on a written conveyance as defined in sec. 235.50, Stats. For the scope and applicability of sec. 235.49 as a Notice-Race type recording statute, see Commentary in 27 W.S.A., [26 Wis.2d 613] p. 285, ch. 235. Whether this case is decided under sec. 235.49 as the trial court did or outside of it as the parties now urge us to do, the result will be the same. At common law the rule 'first in time, first in right' prevailed, qualified by the doctrine of bona fide purchaser. Likewise, sec. 235.49 grants no priority to him who first records if at the time of conveyance he is not a purchaser in good faith. Purchasers in good faith are purchasers without notice of existing rights in the land.

No claim is made Dahls had actual notice. But the claim is made they took title to lot 39 subject to the rights of Bump in the triangle because they were purchasers with constructive notice. Constructive notice arises when a purchaser without knowledge is subjected on grounds of public policy to the liabilities he would be subject to had he in fact had knowledge, because he was in such a position that if he had exercised a reasonable degree of care in availing himself of the avenues of information open to him he could have acquired the knowledge. See Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 85 N.W.2d 772.

Dahls argue that because this is a suit in equity for specific performance it must be decided on general equitable principles and under such principles Bump should be estopped from claiming title because he did not inform Dahls of his claim and his possession was not constructive notice because it was deceptive. Estoppel has not been pleaded by the Dahls and cannot be now raised as a defense. Schneck v. Mutual Service Cas. Ins. Co. (1963), 18 Wis.2d 566, 199 N.W.2d 342. Nor do we find any basis for an estoppel. Dahl did not purchase relying on any action of Bump. Clark v. Moru (1963), 19 Wis.2d 503, 120 N.W.2d 888. The doctrine of constructive notice by possession also rests on equitable considerations and principles and requires a reasonable inquiry to be made of him in possession, not his voluntary disclosure of his rights prior to inquiry.

Bump's possession was so open and notorious and unambiguous as to be notice of all the world of the land he claimed. Although the subdivision was new and the lots irregular and contoured, such facts do not lessen the duty to discover actual possession. Nor does the fact the lots were purchased through a real estate agency or that Dahl did not concern himself with the precise boundaries of the lot he was purchasing make the doctrine inapplicable. Apparently the Dahls made no inquiry as to the exact lot line because they were satisfied with this visual observation of what appeared to be the boundaries. The possession of the plaintiff of the triangular piece of land as an encroachment did not impress itself on the mind of Dahl because Dahl did not know or ascertain where the surveyed lot line of lot 39 as platted was. Dahl paced off the depth of the lot; he noticed the lot line on the plat map did not correspond with what appeared to be the physical lot line, but he made no inquiry of the location of the boundaries of the lot on the surface of the earth.

Whether or not there are customarily encroachments in new subdivisions does not change the application of the doctrine of constructive notice. We do not have one rule for new subdivisions and another for the old. Disregarding encroachments, large or small, or possession because of the belief they are innocent or not the indicia of claims is done at one's peril. The inconvenience and cost of having the land surveyed to insure...