This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In case only an easement in the land is claimed, there will not be any actual possession of the land by the claimant, but merely an exercise of the easement thereover, which exercise will ordinarily be intermittent in character. In such case the notice will be based, strictly speaking, not on possession of the land, but on the exercise of the easement over the land with sufficient constancy or continuity to inform one observing the land of its exercise,87 or, quite frequently, upon the existence of improvements or structures on the land adapting it for the exercise of the easement.88
One limitation upon the effect of possession as notice, which has been recognized in a number of states, is that the possession of one who has a title of record is not notice of any title in him other than that which appears of record, the purchaser being regarded as justified in attributing his possession to such record title.88a It has accordingly been quite frequently de87. Franklin v. Pollard Mill Co., 88 Ala. 318, 6 So. 685; Mc-lure v. Keon, 25 Colo. 284, 53 Pac. 1058; Rock Island & Pac. R. Co. v. Dimick, 144 111. 628, 19 L. R. A. 105, 32 N . E. 291; Campbell v. Indianapolis & V. R. Co., 110 Ind. 490, 11 N. E. 482; Harman v. Southern R. Co., 72
S. C. 228, 51 S. E. 689
88. Ante. Sec. 569, note 54.
88a. Kirby v. Tallmadge, 160 U. S. 379, 40 L. Ed. 463; Schumacher v. Truman, 134 Cal. 430, 66 Pac. 591; Crooks v. Jenkins, 124 Iowa, 317, 104 Am. St. Rep. 326, 100 N. W. 82; Red River Valley Land, etc., Co. v. Smith, cided that one purchasing an undivided interest from
B, is not, by the fact that B has the sole possession, chargeable with notice that A has previously transferred his interest to B,89 it being well recognized that one tenant in common may hold possession in behalf of all of the tenants,90 and the possession of B being consequently consistent with the existence of an undivided interest in A, as indicated by the records. And there is a decision that if a mortgagee, having the legal title of record, and so entitled to possession, takes a conveyance of the equity of redemption, which he fails to record, a subsequent purchaser from the mortgagor will not, by the mortgagee's possession, be charged with notice of such conveyance,91 such possession being consistent with the equitable title of record being in the mortgagor.92 And when the title to land appeared of
7 N. D. 236, 74 N. W. 194; Woods v. Farmere, 7 Watts (Pa.) 382, 32 Am. Dec. 772.
89. Stortlitz v. Chapline, 71 Ark. 31, 70 S. W. 465; Schumacher v. Truman, 134 Cal. 430, 66 Pac. 591: Tvler v. Johnson, 61 Fla. 730, 55 So. 870; May v. Sturdivant, 75 Iowa, 116, 9 Am. St. Rep. 463, 39 N. W. 221; Dutton v. Mcreynolds, 31 Minn. 66, 16 N. W. 468; Jones v. Brenizer, 70 Minn. 525, 73 N. W. 255; Mullins v. Butte Hardware Co., 25 Mont. 525, 87 Am. St. Rep. 430, 65 Pac. 1004; Ilvedsen v. First State Bank, 24 N. D. 227, 139 N. W. 105; Farmers', etc., Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439; Martin v. Thomas, 56 W. Va. 220, 49 S. E. 118. See Kendall v. Lawrence, 22 Pick. (Mass.) 542: Peck v. Williams, 113 Ind. 256, 15 N. E. 270.
So it has been held that the possession of the lessee of one who appears by the records to be a tenant in common merely, is consistent with the record title of the other tenant in common, and does not put a purchaser of the latter's undivided interest on inquiry. Schumacher v. Truman, 134 Cal. 430, 66 Pac. 591.
The possession of one cotenant can obviously not operate aa notice of the fact that the interest of his cotenant has been transferred to a third person. Williams v. Sprigg, 6 Ohio St. 585; Wilcox v. Leominster Nat. Bank, 43 Minn. 541, 19 Am. St. Rep. 259, 45 N. W. 1136.
90. Ante, Sec. 513(h).
91. Plumer v. Robertson, 6 Serg. & R. (Pa.) 179.
92. Past, Sec. 612.
Record as being vested in three persons in equal undivided shares, without mention of any partnership relation between them, a purchaser from one of them was regarded as justified in assuming that he had a one-third beneficial interest, although the land was occupied for the purposes of a partnership consisting of such persons, and the vendor's beneficial interest was less than a third.03 It has likewise been decided that, if land sold under a judgment against A is, at the time of the sale, in the possession of B, who claims under a recorded deed which was executed after the judgment, the purchaser is justified in imputing B's possession to such deed, and not to a possible pre-existing interest in him, not apparent of record.94 Occasionally, however, this limitation upon the effect of possession as notice has not been accepted,95 and such a view appears not to be entirely without justification.
The theory at the base of the general rule of notice from possession is that the purchaser, as he knows or ought to know of the fact of possession by a third person, is under an obligation to make inquiry of that person as to the character and extent of the latter's rights. The limitation just referred to, upon the rule, in effect relieves the purchaser from such an obligation to make inquiry of the person in possession, if a title in the latter appears of record sufficient to explain his possession. This asserted limitation upon the general rule has, by a judge of pre-eminent ability,96 been based on a quasi estoppel, it being said by him that the person in possession, in recording one only of his titles, does an act which, by reason of its tendency to mislead, ought to postpone his other title in favor of a purchaser, and this is the course of reasoning indicated in other cases on the subject. But it may happen that the person in possession is not responsible for the fact that one of his titles is, and that the other is not, recorded. One of his titles might be of a character not susceptible of record, as when it is based on an oral transaction or on an instrument not duly acknowledged.97 And conceding that the record of the one title alone is calculated to mislead a subsequent purchaser, it may happen that, not having examined the records before purchasing, he is not actually misled. Is he protected in such case as against the unrecorded title of the person in possession? It is to be borne in mind, moreover, that the recording of one only of two titles which one may have, can properly be characterized as misleading only upon the assumption that it is calculated to lead the subsequent purchaser to refrain from making inquiries as to the rights of the possessor, and whether it is so calculated is open to question. It might be suggested that a reasonably prudent person, in purchasing from A an interest in land which is in the possession of B, would make inquiry of B as to his rights, even though there is of record a title in B which is not exclusive of the asserted title in A. The fact thai there is such a title of record in B makes it no more difficult for the purchaser to make inquiry as to the