Glorieux v. Lighthipe

• Decision Date: 15 November 1915
• Docket Number: No. 75.,75.
• Parties: GLORIEUX et al. v. LIGHTHIPE et al.
• Court: New Jersey Supreme Court

96 A. 94

88 N.J.Law 199

GLORIEUX et al.

v. LIGHTHIPE et al.

No. 75.

Court of Errors and Appeals of New Jersey.

Nov. 15, 1915.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by William L. Glorieux and another against Charles P. Lighthipe and others. Prom judgment for plaintiffs, defendants appeal. Reversed, and venire de novo awarded.

Charles F. Lighthipe, of Orange, for appellants. Lehlbach & Johnson, of Newark, for appellees.

SWAYZE, J. This is an action on covenants for title contained in a deed from the defendants, heirs of Charles A. Lighthipe, to William L. Glorieux. The breach alleged is the existence of an incumbrance in the form of building restrictions. This is said to have been created by a covenant in a deed for adjoining land made by Charles A. Lighthipe, the ancestor, to one Marsh, in which Lighthipe covenanted that he would not convey the land subsequently conveyed by his heirs to Glorieux, unless the grantee should enter into a covenant of the same nature, purport, and effect as that made by Marsh, which should be inserted in the deed. Lighthipe's heirs conveyed to Glorieux without inserting the covenant. Glorieux himself testified that he had no actual knowledge of any restrictions upon the land conveyed to him, and his counsel in argument makes the same concession. Since the very foundation of an equitable servitude is notice to the purchaser of the servient tenement, the plaintiff's case fails unless the record of the deed to Marsh constitutes statutory notice. If the Marsh deed were in the plaintiff's chain of title, the case would present no difficulty. It is not, and we are confronted with the question of the effect as notice of a prior recorded deed by the same grantor, but for other lands. Prior to the act of 1883 (P. L. p. 215; G. S. p. 882, pl. 143-145), the effect of the record as notice was determined by principles of equity, and was limited to deeds in the chain of title of the person sought to be charged. Losey v. Simpson, 11 N. J. Eq. 246; H. C. Tack Co. v. Ayers, 56 N. J. Eq. 56, 38 Atl. 194; Chandley v. Robinson, 75 Atl. 180; Murray v. Ballou, 1 Johns. Ch. (N. Y.) 566; Meacham v. Blaess, 141 Mich. 258, 104 N. W. 579. See, also, 18 Ann. Cas. 17. Such also was the rule in other jurisdictions. 39 Cyc. 1719, 1728. And the rule was so stated in this court in Mitchell v. D'Olier, 68 N. J. Law, 375, 384, 53 Atl. 467, 59 L. R. A. 949, although the present question was not necessarily involved in the decision. The reason for imputing notice as stated by Chief Justice Beasley speaking for this court in Brewer v. Marshall, 19 N. J. Eq. 537, 541, 97 Am. Dec. 679, excludes that imputation where the deed relied on is not in the chain of title of the party to be charged. The court said:

"The law conclusively charges him with such information, because the deed which contains this restrictive agreement constitutes one of the muniments of his own title."

The rule is recognized by the text-writers. Story on Eq. Jur. § 400; Pomeroy on Eq. Jur. § 658; note to Le Neve v. Le Neve, 2 L. C. Eq. (4th Ed.) 190.

The act of 1883 provided that the record should become and be forthwith notice to all persons of the execution thereof. This act was repealed in 1898 (P. L. p. 713) and cannot affect the present case since Glorieux did not take title until 1910. The case turns upon the construction of the act respecting conveyances of 1898 (P. L. p. 670), and the supplement of 1903 (P. L. p. 489; C. S. p. 1552, pl. 53; Id. page 1556, pl. 57a-57c). The act of 1903 adds nothing material to the present case. It seems to have been intended to permit the record of certain instruments not mentioned in the twenty-first section of the act respecting conveyances, and may have been suggested toy the difficulty that arose in Lembeck & Detz Eagle Brewing Co. v. Kelly, 63 N. J. Eq. 401, 51 Atl. 794. The act of 1903 was not necessary to authorize the record of the deed from Lighthipe to Marsh since that was clearly authorized by section 21. The act added nothing to the effect of the record as notice, since by virtue of section 53 the record was notice, not only of the execution of the deed, but of the contents thereof. The only effect of the act of 1903 was to extend the provisions of section 53 to other instruments. The case turns, therefore, upon the construction of section 53. The language of that section is narrower and more limited than that in the act of 1883. Where the earlier act made the record notice to all persons, the act of 1898 made it notice only to subsequent judgment creditors, purchasers, and mortgagees. The words material to the present case are "subsequent purchasers." Unless Glorieux was a "subsequent purchaser," the statute did not make the record notice as to him. The question otherwise stated is whether "subsequent purchaser" means subsequent purchaser from the same grantor, or subsequent purchaser of the same land. The more natural meaning is subsequent purchaser of the same land. In most cases it is probable that the grantor owns no other land. Even where he holds other tracts, we must logically hold either that the statutory notice applies only to the particular land described in the deed or affects all other land owned by the grantor at least in the same county, whether in the same or different municipalities, whether on the same street or different streets. The limitation to adjoining land suggested by the learned Vice Chancellor in Howland v. Andrus, 80 N. J. Eq. 276, at page 282, 83 Atl. 982, is not suggested by any language in the statute and would lead to an anomalous situation. It would charge with notice the purchaser of an...