McLaughlin v. Shepherd , 32 Me. 143 ( 1850 )

Howard, J.

The tenant owned and occupied the demanded premises, consisting of a house and lot in Bangor, and conveyed them by an absolute deed to Wellington, June 2, 1838. He took from Wellington a bond under seal, of the same date, and executed at the same time, to re-convey the premises within thee years, upon the surrender of the notes, then given for the consideration of the conveyance, and upon a re-payment of such sums and interest as might have been paid by the grantee.

The deed was recorded June 30, 1838, but the bond was not recorded until November 20, 1843. Wellington did not enter into the possession of the premises, but the tenant and his family resided on, and occupied them, some time prior to, and ever since June 18, 1838.

A creditor of Wellington attached the premises in a suit on a demand accruing, and due, before 1838 ; obtained judgment and execution, and levied upon them, January 12, 1847, and conveyed his title and interest to the demandant.

Wellington did not pay any portion of his notes for the consideration, but the tenant, within the thee years, requested of him a re-conveyance, offering to give up the notes spe-. cified in the bond, and in compliance with its conditions.

The deed and bond, being a part of the same transaction, constituted a mortgage between the parties, but whether it can be regarded as such, against the attaching creditor, is the question presented by the report.

A subsequent purchaser of real estate, who had notice at the- time of his purchase, of a prior unregistered deed, cannot, upon the strength of his prior registry, defeat the unrecorded deed. The notice to him has all the effect of a prior registry, and is alike effective, whether it be express, or implied. This doctrine has been so fully discussed in English and American courts, and so frequently affirmed, that it may be considered as established law.

It has been held that possession by one, of an improved estate, under an unregistered deed, is notice to a subsequent purchaser, of the prior conveyance; and that such possession, is sufficient to put the subsequent purchaser upon an inquiry into the title, which he is about to purchase from a person who is not in possession. If he make the inquiry, the presumption of law is, that he ascertains the true state of the title ; or if he neglect it, and purchases, there arises in either case, the presumption of a fraudulent intention in effecting the purchase. Webster v. Maddox, 6 Greenl. 258; Matthews v. Demerritt, 22 Maine, 312; Trowbridge’s reading of the Province Law, of 9 Will. 3, chap. 7, 3 Mass. 573; Farnsworth v. Childs, 4 Mass. 638; Norcross v. Widgery, 2 Mass. 508; Davis v. Blunt, 6 Mass. 489; Prescott v. Heard, 10 Mass. 60; McMechan v. Griffing, 3 Pick. 152; Curtis v. Mundy, 3 Metc. 405, where it is held, under the Revised Statutes of Massachusetts, which provide that no unrecorded conveyance of real estate shall be valid and effectual, except against the grantor, &c., “andpersons having actual notice thereof,” that it is not necessary, in order to render such conveyance valid against a subsequent purchaser, that he should have positive and certain knowledge of its existence; but that the notice would be sufficient if it be such as men usually act upon in the ordinary affairs of life. Pomroy v. Stevens, 11 Metc. 244; Jackson v. Sharp, 9 Johns. 168; Jackson v. Burgott, 10 Johns. 471; Day v. Dunham, 2 Johns. Ch. 190; LeNeve v. LeNeve, 3 Atk. 654; Taylor v. Stibbert, 2 Ves. 440; Hiern v. Mill, 13 Ves. 120; 1 Story’s Com. on Eq. Juris. § 397; 4 Kent’s Com. 169—174.

The statute, 1821, chap. 36, § 3, provides, “ that no title or estate in fee simple, &c., of any lands, &c., within this State, shall be defeated or incumbered by any bond or other deed, or instrument of defeasance, in the hands or possession of any person, but the original party to such bond, deed, or other instrument or his heirs, unless such bond, deed, or other instrument of defeasance, be recorded at large in the registry of deeds, in which the original deed referred to in the said bond, deed, or other instrument of defeasance shall have been recorded.” The first section of this chapter provides for the reoording of deeds, and it has been construed in conformity with the doctrine and principles already stated ; but the third section has not been so directly the subject of discussion, or of judicial interpretation. As the instrument of defeasance affects the title of the parties to the conveyance, there would seem to be the same necessity for recording it as for recording the deed, and for the like purpose of giving notice. Such, undoubtedly, was the object of the Legislature in framing the law. By analogy, this section should receive a similar construction, in reference to unrecorded instruments of defeasance, with the first section of the statute, in respect to unregistered deeds. A subsequent purchase, therefore, from the grantee, with knowledge, express or implied, of an unrecorded bond of defeasance, would not be valid against the mortgage. The subsequent purchaser would be chargeable with notice of the unregistered deed or instrument of defeasance, upon like evidence. Newhall v. Burt, 7 Pick. 159.

The case of Fuller v. Pratt, 1 Fairf. 197, has been cited, as advancing doctrine at variance with the views now indicated, on the subject of notice. But in that case it was determined that the instrument, taken by the grantor, did not constitute a defeasance ; and although the Chief Justice remarked, in his opinion, that, if it had been' a defeasance, it could not have operated as such, against any person but the original party to it, while unrecorded, yet this remark was merely incidental to the point upon which the decision was made ; and the effect of possession by the obligee was not then discussed by the court, and does not appear to have been there directly considered, or decided.

An attaching creditor is chargeable with notice in the same manner, and with like effect, as a subsequent purchaser. Matthews v. Demerritt, 22 Maine, 317.

In this case, the evidence was sufficient to put the creditor upon the inquiry into the nature of the title of his debtor ; and if the inquiry had been instituted, it cannot be doubted that it must have resulted in his ascertaining the true state of the debtor’s interest. The open, continued, and exclusive possession and occupation of the house and lot, by the tenant and his family, after his conveyance to Wellington, are facts from which notice might be inferred that he was in possession by right, and under the title which he actually had. McKecknie v. Hoskins, 23 Maine, 233; Taylor v. Stibbert, 2 Ves. 440.

Wellington’s interest was only that of a mortgagee, and it was not attachable, or subject to a levy of execution. Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484; Smith v. People’s Bank, 24 Maine, 185.

The objections to the sufficiency of the attachment becoming immaterial to the result, are not considered.

Demandant nonsuit, according to the agreement of the parlies.