
    James J. Ward, App’lt, v. Metropolitan Elevated Railway Company et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    1. Release—Basements—Record.
    A release, by an abutting owner, of an elevated railway company from all causes of action for the construction and operation of its road, need not be recorded as against a subsequent grantee of the lot.
    2. Same—Notice.
    The operation of the road in the street puts a purchaser on inquiry as to-the right to such easements.
    3. Same—Possession.
    Possession by a third person is notice to the grantee of any claim which the former may have, though his possession originated in a trespass.
    Appeal from a judgment dismissing the complaint upon the merits.
    
      Eugene D. Hawkins, for app’lt; Julien T. Davies, for resp’ts.
   Parker,

August, 1889, nearly eleven years after defendants’ elevated railroad was open for traffic, Johanna Leipziger, who was then the owner of the premises in question, together with her husband, executed and delivered to the defendants, for a consideration of $3,300, an instrument in writing under seal, conveying and releasing to defendants the easements or property rights appurtenant to said premises taken by the maintenance and operation of said railroad, releasing defendants from all causes of action,, past and future, for such maintenance and operation, and- consenting to the perpetual maintenance and operation of said railroad in front of said premises. This instrument has never be recorded. In January following, Johanna Leipziger, by full covenant warranty deed, conveyed said premises to the plaintiff without reservation or reference to the previous release given to the defendants. This deed was duly recorded. Plaintiff contended upon the trial that within the provisions of the recording Á •deed from Leipziger was entitled to priority over defenc previous unrecorded release from the same source of title. trial court held, under the authority of While v. Man. Ry. 139 N. Y. 19; 54 St. Rep. 409, that by the release these defendants acquired title to the easements which were, prior to that time, vested in the owner of the premises, and that thereafter said easements were no longer an appurtenance to the premises owned by Leipziger. We think the decision in White’s Case fully supports the conclusion of the trial court. But, if the instrument from Leipziger to defendants be regarded as a grant of real estate, plaintiff is not helped by the statute which he invokes. It reads : “ Every conveyance of real estate within this state hereafter made shall be recorded in the office of the clerk of the county where such real estate shall be situated ; and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded."

How, the difficulty with plaintiff’s position is that he saw the defendants in the open and visible possession of the easements at the time of his purchase, without taking any steps, so far as the record discloses, for the purpose of ascertaining by what title they held possession, and therefore he was not “ a purchaser in good faith,” within the meaning of the recording act. Under that act, registry and possession each constitutes constructive notice which puts a party upon inquiry, and charges him with notice of every fact to which inquiry would reasonably have led. Hence, where one is in actual possession under an unrecorded deed, he is protected against a subsequent purchaser who records his deed, because it was the duty of the purchaser to inquire as to the rights of the person in possession. Tuttle v. Jackson, 6 Wend. 226. In Phelan v. Brady, 119 N. Y. 587 ; 30 St. Rep. 256, which was an action brought to foreclose a mortgage upon certain premises given by M., who held an apparently perfect title, it appeared that before the execution of the mortgage M. had conveyed the premises to the defendant, who was in possession, and with her husband occupied two rooms in the premises, which consisted of a tenement building or block containing forty-three rooms or apartments, then occupied by twenty different occupants or families, as tenants from month to month. In affirming the judgment which dismissed the complaint the court said:. “ It may be true, as argued by plaintiff’s counsel, that when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish.”

The necessary inference from the language which we have quoted is that the duty of inquiry put upon an intending pur-

chaser will not be fully satisfied by anything less than an inquiry of the occupant himself touching his title and interest. Easements capable of' physical examination are embraced within the recording act, and necessarily subject to-the same law of notice as conveyances of a fee. Snell y. Levitt, 39 Hun, 228. In several decisions affecting easements occupied by the elevated railroad, it has been asserted that the law of notice is applicable. Mitchell v. Met. El. Railway Co., 56 Hun, 543 ; 31 St. Rep. 625, and Id., 134 N.Y. 11; 45 St. Rep. 318. In Mitchell's Case the general term said:

“The plaintiff in this case took no means whatever of ascertaining upon what claim the" elevated railway company based its right of possession, and, unless such means were used, they could not possibly be considered as not haying notice of whatever claim the defendants might be able to assert.”

In the court of appeals it was said :

“ The defendants’ possession of the easements gave notice to all the world of a claim of right in respect thereto, so as to put all persons on inquiry.”

The appellant contends that the possession openly and visibly maintained by the defendants for six years was that of trespassers, and as thereafter their possessions continued, apparently, openly, and visibly in the same way, plaintiff had the right to assume that the possession of the defendants at the time plaintiff took his deed was of the same character as that maintained by them at the beginning, and therefore he was excused from inquiry. It might be said that the record contains no evidence that the plaintiff indulged in any assumptions whatever with reference to the character of defendants’ possession when he purchased the property. It does not appear that he personally knew that the possession of the defendants was ever wrongful. But assuming that he did know it, and that he indulged in the assumption that defendants’ possession continued to be wrongful, the question would be whether he could safely so assume. We think not. An intending purchaser may know that the occupant of the premises entered into possession under a lease ; but it will not avail him to assume that he continued to occupy as a tenant if, in the meantime, the character of his occupancy underwent a change, and he became the owner of the fee. There does not seem to be any better reason for assuming that the possession of a trespasser will not be changed in character in the course of time. The courts do not presume that a party who is once a trespasser is always a trespasser. In Uline Railroad Co., 101 N. Y. 126. Judge Earl, speaking for the court, says:

“ I think it quite absurd and illegal to assume that a wrong of any kind will forever be continued, and that the wrongdoer will not discontinue or remedy it.”

In Pappenheim’s Case, 128 N. Y. 436, 40 St. Rep. 445, the court, through Peckham, J., says:

“ The law says their [the defendant railroad companies’] action cannot be regarded as a permanent trespass, for the very reason that it is unlawful, and the law will not presume that an unlawful act is to be continued forever.”

And in Galway v. Met. El. Railway Co., 128 N. Y. 132, 40 St. Rep. 145, Buger, C. J., says:

“ The plaintiff had reason to suppose the defendants would discontinue their trespasses, or, if they were continued, they would resort to legal means to justify them. They had no reason to believe that the defendants deliberately intended to proscute their enterprise altogether regardless of the legal rights of others.”

If the law will not presume that the wrongful possession continues, there is no basis whatever for the distinction for which the appellant contends; and, while the appellant may regard the failure of his speculation as unfortunate, it is not unfortunate in that broader sense which the law has in view in establishing legal rules by the application of principles which shall result to the general public good rather than that of the individual, for if it were to be held that possession of the easements by the elevated railroads constitutes an exception to the general rule that possession puts a would-be purchaser on inquiry as to the title and right of the occupant, confusion and uncertainty would result—the very thing which the law abhors. In some cases subsequent purchasers with prior titles would recover ; in others, like White's Case, supraT fail. Because of the rule established in the White Case, if there were no other reason, the courts would hesitate before reaching the conclusion that the exception to the general rule for which appellant contends should be created.

The judgment should be affirmed, with costs. All concur.  