The opinion of; the court was delivered by
Beasley, C. J.
This is an appeal from a refusal of the Vice-Chancellor to order a preliminary injunction.
[206]*206The posture of the facts is this : One Kelley, being the owner of two lots of land which were designated on the map of the plot to which they appertained as lots 97 and 98, and which were, respectively, described to be twenty-three feet four inches wide, sold them to James M. Barrows. At the time of this sale there was a dwelling-house on the property, which, it was then supposed, stood on lot 97, but which, in point of fact, was wider than that lot, encroaching a little over two feet on lot 98. Barrows, when he took his conveyance, made to his grantor, Kelley, in part payment of the purchase-money, a mortgage on lot 97, both he and the mortgagee believing that the house stood upon that lot exclusively.
It is proper to pause here to say that, at this juncture, the equities existing between these parties were indisputable. Both mortgagor and mortgagee supposed, at the time of creating the incumbrance, that it embraced the land occupied by the house, and it is shown, beyond cavil, that the intention of both these persons was to incumber this structure and the underlying premises. Indeed, the situation was such as, of itself, to repudiate every other conclusion, for it is an absurdity to suppose that it was the purpose to exempt from the lien so created one entire side and two feet of the front of the dwelling-house. And it is shown by express testimony, and which is entirely uncontradicted, that both mortgagor and mortgagee intended to lay the incumbrance on the entire house and on the lot of land of equivalent width. The design of both parties, therefore, having miscarried by reason of a mutual error, it is undeniable that the mortgagee had the right to require the correction of the error by a court of equity. Such relief was plainly his due ex debito justitice.
The only question, therefore — if there be any question — that remains open in the case, is, whether the right to have the mistake thus occurring corrected has been lost by the conduct of the mortgagee or of those claiming under him.
Barrows having given the mortgage above described, a j udgment was afterwards obtained against him by virtue of which lot 98, being the lot encroached upon by the dwelling-house, [207]*207was sold at sheriffs sale, and the title thence arising is now vested in Delia Colgan, the respondent.
The appellant holds his title through a foreclosure of the mortgage given by Barrows to Kelley.
The inquiry, therefore, is, whether the sale by the sheriff of lot 98 carried that property to the purchaser divested of the equitable right which, as we have seen, at that time was possessed by Kelley, the mortgagee. The solution of this question depends upon the extent and character of the knowledge or information with which such purchaser is to be charged. He knew of the existence of the mortgage, and he also knew that it was upon a lot on which there was a dwelling-house. Could he, therefore, as a reasonable person, infer that the .mortgage was intended to cover merely a part of the land occupied by the house —that is, that those who had put the incumbrance there meant to incumber only a part of the building ? Can it be plausibly said that such purchaser, when he made his bid, supposed that iu buying lot 98 he was buying two feet of the front of the house in question ? I consider it very plain that such an interpretation of such facts never has been, and never will be, put upon them by any person of sane mind. In such instances the house is the monument, visible to all men, designating in an almost unmistakable form the extent of the right, either legal or equitable, claimed by the mortgagee. Any other doctrine would be dangerous in the extreme. Very few persons, it is believed, in taking mortgages on premises apparently covered by a dwelling-house, verify by actual survey or measurement the extent of the lot, or its exact location, as described in the deed, and the consequence is that it is the general understanding that it is the obvious intent of both mortgagor and mortgagee that the incumbrance shall rest on an area of land commensurate with the dimensions of the building. Under such a condition of facts the suggestion never arises that the mortgage rests on only a portion of the building, leaving a fragment of it unincluded in the instrument. The situation in itself, and proprio vigore, calls for inquiry from all those who desire to take a title to any part of the land underlying the building. In this case, if inquiry [208]*208liad been made, the equitable right sought to.be enforced by this bill would have been discovered.
This aspect of the case appeal’s to have escaped the attention of the lower court. The Vice-Chancellor’s theory was that it was incumbent on the mortgagee, or on the appellant claiming under him, to have discovered the mistake in question. His words are: “It would seem that, if the possession of Kelley (the mortgagee) was an advertisement of ownership, of any value in determining the equity of the parties, the unequivocal advertisement or notice in the deed that there was a map of the premises, a public record, should be of at least equal account.” But this view quite ignores the pith' of the question, for, granting that the map and the given number of the lot were indications of the extent of the mortgagee’s title, nevertheless the existence of the dwelling-house of larger dimensions than the premises so described created the emergency putting all persons dealing in the matter on inquiry as to equities that might exist. And it is always this discrepancy between the record and the structure upon the land that presents the situation proclaiming the existence of a mistake or latent right.
In the present case, it is apparent that, during the entire period occupied by the devolutions of the titles to these respective tracts of land, all parties in interest remained in the false belief that this entire house stood on lot 97, and that it did not encroach on lot 98. This error was not discovered until the year 1883, when the respondent, making an actual measurement of her lots, ascertained the encroachment. Upon this discovery she brought an ejectment for the two feet in dispute, and this is the proceeding which the Vice-Chancellor refused temporarily to enjoin.
The mistake was one, in common, of these parties. It is expressly shown that when the respondent took her conveyance, she supposed that she was acquiring title to the land lying alongside of the appellant’s house; she did not suppose that her right extended to any part of the premises covered by the building.
It is not perceived how, under these circumstances, the equitable right to relief that was vested originally in the mortgagee [209]*209has been lost, and consequently the injunction prayed for should be granted.
The case of McKehway v. Armour, 2 Stock. 115, is of analogous nature to the present one, and, as it is conceived, was decided upon a correct principle. It does not appear to have been brought to the attention of the court below. The facts and the action taken by the Chancellor are thus stated in the syllabus of the reported case:
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The opinion of; the court was delivered by
Beasley, C. J.
This is an appeal from a refusal of the Vice-Chancellor to order a preliminary injunction.
[206]*206The posture of the facts is this : One Kelley, being the owner of two lots of land which were designated on the map of the plot to which they appertained as lots 97 and 98, and which were, respectively, described to be twenty-three feet four inches wide, sold them to James M. Barrows. At the time of this sale there was a dwelling-house on the property, which, it was then supposed, stood on lot 97, but which, in point of fact, was wider than that lot, encroaching a little over two feet on lot 98. Barrows, when he took his conveyance, made to his grantor, Kelley, in part payment of the purchase-money, a mortgage on lot 97, both he and the mortgagee believing that the house stood upon that lot exclusively.
It is proper to pause here to say that, at this juncture, the equities existing between these parties were indisputable. Both mortgagor and mortgagee supposed, at the time of creating the incumbrance, that it embraced the land occupied by the house, and it is shown, beyond cavil, that the intention of both these persons was to incumber this structure and the underlying premises. Indeed, the situation was such as, of itself, to repudiate every other conclusion, for it is an absurdity to suppose that it was the purpose to exempt from the lien so created one entire side and two feet of the front of the dwelling-house. And it is shown by express testimony, and which is entirely uncontradicted, that both mortgagor and mortgagee intended to lay the incumbrance on the entire house and on the lot of land of equivalent width. The design of both parties, therefore, having miscarried by reason of a mutual error, it is undeniable that the mortgagee had the right to require the correction of the error by a court of equity. Such relief was plainly his due ex debito justitice.
The only question, therefore — if there be any question — that remains open in the case, is, whether the right to have the mistake thus occurring corrected has been lost by the conduct of the mortgagee or of those claiming under him.
Barrows having given the mortgage above described, a j udgment was afterwards obtained against him by virtue of which lot 98, being the lot encroached upon by the dwelling-house, [207]*207was sold at sheriffs sale, and the title thence arising is now vested in Delia Colgan, the respondent.
The appellant holds his title through a foreclosure of the mortgage given by Barrows to Kelley.
The inquiry, therefore, is, whether the sale by the sheriff of lot 98 carried that property to the purchaser divested of the equitable right which, as we have seen, at that time was possessed by Kelley, the mortgagee. The solution of this question depends upon the extent and character of the knowledge or information with which such purchaser is to be charged. He knew of the existence of the mortgage, and he also knew that it was upon a lot on which there was a dwelling-house. Could he, therefore, as a reasonable person, infer that the .mortgage was intended to cover merely a part of the land occupied by the house —that is, that those who had put the incumbrance there meant to incumber only a part of the building ? Can it be plausibly said that such purchaser, when he made his bid, supposed that iu buying lot 98 he was buying two feet of the front of the house in question ? I consider it very plain that such an interpretation of such facts never has been, and never will be, put upon them by any person of sane mind. In such instances the house is the monument, visible to all men, designating in an almost unmistakable form the extent of the right, either legal or equitable, claimed by the mortgagee. Any other doctrine would be dangerous in the extreme. Very few persons, it is believed, in taking mortgages on premises apparently covered by a dwelling-house, verify by actual survey or measurement the extent of the lot, or its exact location, as described in the deed, and the consequence is that it is the general understanding that it is the obvious intent of both mortgagor and mortgagee that the incumbrance shall rest on an area of land commensurate with the dimensions of the building. Under such a condition of facts the suggestion never arises that the mortgage rests on only a portion of the building, leaving a fragment of it unincluded in the instrument. The situation in itself, and proprio vigore, calls for inquiry from all those who desire to take a title to any part of the land underlying the building. In this case, if inquiry [208]*208liad been made, the equitable right sought to.be enforced by this bill would have been discovered.
This aspect of the case appeal’s to have escaped the attention of the lower court. The Vice-Chancellor’s theory was that it was incumbent on the mortgagee, or on the appellant claiming under him, to have discovered the mistake in question. His words are: “It would seem that, if the possession of Kelley (the mortgagee) was an advertisement of ownership, of any value in determining the equity of the parties, the unequivocal advertisement or notice in the deed that there was a map of the premises, a public record, should be of at least equal account.” But this view quite ignores the pith' of the question, for, granting that the map and the given number of the lot were indications of the extent of the mortgagee’s title, nevertheless the existence of the dwelling-house of larger dimensions than the premises so described created the emergency putting all persons dealing in the matter on inquiry as to equities that might exist. And it is always this discrepancy between the record and the structure upon the land that presents the situation proclaiming the existence of a mistake or latent right.
In the present case, it is apparent that, during the entire period occupied by the devolutions of the titles to these respective tracts of land, all parties in interest remained in the false belief that this entire house stood on lot 97, and that it did not encroach on lot 98. This error was not discovered until the year 1883, when the respondent, making an actual measurement of her lots, ascertained the encroachment. Upon this discovery she brought an ejectment for the two feet in dispute, and this is the proceeding which the Vice-Chancellor refused temporarily to enjoin.
The mistake was one, in common, of these parties. It is expressly shown that when the respondent took her conveyance, she supposed that she was acquiring title to the land lying alongside of the appellant’s house; she did not suppose that her right extended to any part of the premises covered by the building.
It is not perceived how, under these circumstances, the equitable right to relief that was vested originally in the mortgagee [209]*209has been lost, and consequently the injunction prayed for should be granted.
The case of McKehway v. Armour, 2 Stock. 115, is of analogous nature to the present one, and, as it is conceived, was decided upon a correct principle. It does not appear to have been brought to the attention of the court below. The facts and the action taken by the Chancellor are thus stated in the syllabus of the reported case:
“Complainant erected a valuable dwelling-house, by mistake, on the land of the defendant; defendant lived in the vicinity, saw complainant progressing from day to day with the improvement, and admitted he did not suspect the erection to be on his lot until some time after its actual erection, when by actual measurement, to his surprise, he discovered the mistake. The court relieved the complainant, putting the defendant to as little inconvenience as possible.”
It is obvious that the complainant in the reported case was not possessed of as strong a claim to equitable consideration as the present.appellant has. In both cases the feature is presented of a controversy growing out of a mutual mistake, and in the case from the report it is expressly stated in the opinion, that although Armour stood by while the improvement was being made, he did not suspect that his lot was being occupied. The Chancellor also declares that McKelway was most at fault. His language is:
“ I't is very true, as was urged upon the argument, the complainant was most to blame in this matter. A diligent examination of the deed to Armour and an actual measurement of the land would have decided the difficulty. But it was a vacant lot of land, plotted out upon a map only, and the mistake was one which might occur to the most careful and most diligent man.”
It will be observed that in this case relief was granted to the complainant, although it was adjudged that he was more in fault than his opponent.
In the ease now in hand either of these parties, by having his lot located or measured, could have discovered the mistake in the placing of the house, and, in this particular, if negligence is to be imputed, they must share it equally. But, beyond this, according to a well-established rule of law, negligence must be at[210]*210tributed to the respondent, as she made no investigation with respect to the rights of the appellant, although when she took her title the grantor of the appellant was in visible possession of the premises in dispute, holding under a mortgage which plainly indicated that it was designed to be an incumbrance, not upon a fragment of the building, but upon the whole of it. If the valuable and well-known doctrine that a person who is put on the alert by existing circumstances is to have imputed to him all the knowledge that a proper investigation would have disclosed ±o him, is ever to have force, it seems to me that it must be taken as the principle of decision in the present instance. A large train of cases on this subject are to be found in the notes to Le Neve v. Le Neve, 2 Lead. Cas. in Eq. 109, 143 et seq., by a reference to which it will be at once perceived how much at variance the opposite view to that above propounded would be, not only with the current but with the totality of judicial opinion.
With respect to the objection that the remaindermen have not been made parties, it can have no weight on the present issue whether this interlocutory injunction should go against the owner of the life interest. If a perpetual injunction is sought for, it may be that the persons holding the ultimate right to the premises should be made defendants before the final hearing. The bill presents all the essential facts out of which the complainant’s equity arises; and, as there is a general prayer for relief, according to well-established rules, no difficulty exists in point of pleading. The Vice-Chancellor so regarded it, and decided the case upon the merits. ■
It is not to be inferred, from anything that appears in the foregoing expression of opinion, that the view is entertained that, by force of the facts already proved, the appellant would be entitled ¡to retain the strip of land in controversy without paying for it. In the present aspect of the case, if this were the final hearing, an my judgment, the appellant would be entitled to retain the land upon the equitable condition that he should be charged with its full value in the market. Probably he would also be charged with the costs of the ejectment. But this matter is not before the [211]*211court, and has been alluded to only to obviate a possible misconstruction of the views above expressed.
The decree, in my opinion, should be reversed, and an injunction should be issued as prayed for.
Decree unanimously reversed.