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 .
93. Adams v. Bradley, 12 Mich. 346.
94. Rogers v. Hussey, 36 Iowa, 664; Lance v. Gorman, 136 Pa. 200, 20 Am. St. Rep. 914, 20 Atl. 792.
95. Farmers' Nat Bank v. Sperling, 113 111. 273; Weisberger v. Wisner, 55 Mich. 246, 21 N. W. 331; Schmidt v. Steinbach, 193 Mich. 640, 160 N. W. 448; Collum v. Sanger, 98 Tex. 62, 82 S. W. 459, 83 S. W. 184; Tolland v. Corey, 6 Utah, 392, 24 Pac. 190. See Carr v. Brennan, 166 111. 108, 57 Am. St. Rep. 119, 47 N. E. 721; Ellison v. Torpin, 44 W. Va. 415, 438, per Brannon, P. J.
A purchaser is not justified in ascribing the possession to a recorded deed made to the possessor if he knows that deed to be void. Simonson v. Manson, 36 S. D. 167, 153 N. W. 1020.
96. Gibson, C. J., in Woods v. Farmere, 7 Watts. (Pa.) 382. See also editorial note, 18 Harv. L. Rev. 218.
97. In Woods v. Farmere, 7 Watts (Pa.) 382, Gibson, C. J. says that "an exception to this might be the case of possession taken under a parol contract partly executed, which is not susceptible of registration; yet if it were the title mainly relied on, why register another, when, if neither were registered, the possession would be notice of both." But this omits to recognize the possibility that the person in possession may have rights of B. Furthermore, if a purchaser is justified in refraining from inquiry as to the rights of the person in possession merely because such person has a title, which appears of record, to which his possession may be attributed, it is difficult to see why he is not so justified when such person has such a title, not of record, of which the purchaser has notice. But the imputation of such an effect to an unrecorded title is practically denied by the decisions, hereafter referred to,98 that the possession of a tenant under a lease is notice of rights in such tenant not based on the lease. The tenant in possession under a lease has a title, namely the lease, adequate to explain his possession, and the purchaser has, in the ordinary case, knowledge of such title, and yet it is held that the possession of the tenant is notice, not only of his interest under the lease, but of any other interest which he may have.
- (e) Joint possession or occupation. The cases not infrequently assert that the possession of a third person, in order to affect a purchaser with notice of such person's claim, must be "exclusive." Just what this means is by no means clear. Legal possession is in its nature exclusive of others, the only case in which the possession of one person is not exclusive of others being when there is a joint possession in him and another or others. The statement referred to probably means that the possession must be an actual legal possession, and not a mere occupation under a license, in connection with possession in another.
When two persons are together in the possession of property, a person purchasing the property from a third person, not in possession, would ordinarily be put on inquiry as to the claims of such joint possessors. If one person is in possession, and another person is apparently associated with him in the use of the propregistered his one title without knowing that he might subsequently acquire another incapable of registration. 98. Post, Sec. 571(f), note 20.
Erty, as a member of his family, for instance, but not as sharing in the legal possession, a purchaser from a third person would presumably be put on inquiry as to the rights of the former but not of the latter.
There are a number of decisions to the effect that if two persons, A and B, are in occupation of land, and B is merely a lodger with A, or is a subordinate member of A's family, or otherwise A appears to be in control of the land, the presence of B upon the land is not such possession on his part as to charge a purchaser from A with notice of an adverse interest in B.99 In such case B is, in the ordinary case, and strictly speaking, not in possession, and furthermore the fact that he has apparently no powers of control serves to indicate that he has no actual interest, in the land, but is there merely in the right of A, and by his permission. On the other hand, a purchaser from B, would, it appears, by the possession of A, be put on inquiry as to the rights of A.1 If the two persons on the land appear to have equal rights of control thereover, a purchaser from either would, it is conceived, be put on inquiry as to the rights of the other, the presumption being that each has a joint interest.
In perhaps a majority of the decisions as to the effect of joint occupation, as charging a purchaser from one occupant with notice of the other's claim, reference is made to the matter of record title, it being said that if, of two joint occupants, one alone has the record title, a purchaser has the right to assume that the other has o title,2 reference being also usually made, by way of analogy, to the doctrine before referred to,3 that if a person in possession has a title of record, his possession may be imputed to that title. It does not seem, however, that the question of record title should ordinarily affect the question of the sufficiency of the possession to operate as notice. If both A and B are occupying the premises, but A appears to be in control and B to be on the premises in a merely subordinate capacity, a purchaser from B should, it is conceived, inquire as to A's interest in the premises, even though B has the record title, while a purchaser from A should not, in such case, be put on inquiry as to B's interest, even though neither has the record title. Perhaps when both A and B appear to have equal powers of control, a purchaser might be justified in assuming that the one who has the record title is the one actually in possession, and so be relieved from inquiring as to the rights of the other,4 but even in such case, it would seem, a purchaser from either might reasonably be required, without reference to the record title, to inquire by what right the other exercises any control over the property purchaser, upon inquiry of the one in possession, would usually be informed by him that his interest is an undivided one, and that there is a similar interest outstanding in another. Such possession by one cotenant is obviously sufficient to put a purchaser on inquiry as to the interest of such cotenant himself.6