Nason v. Grant , 21 Me. 160 ( 1842 )

The opinion of the Court, was prepared by

Sherley J.

— It appears from the agreed statement of facts, that on the 13th of October, 1836, Reuben Buck conveyed to Joseph Grant a farm including the premises, and at the same time took back a mortgage to secure the payment of most of the purchase money. Neither of these conveyances were recorded. Joseph Grant and Joseph Grant, jr. entered into possession of the farm in the spring of 1837, and have remained in possession since that time. On the 15th of October, 1838, the premises were attached on a writ in favor of the plaintiff against Joseph Grant. Judgment was duly recovered, and the execution issued thereon was duly levied on the premises as the property of Joseph Grant, on the 23d of November, 1839. On the 12th of January, 1839, Buck being ignorant of this attachment, and the purchase money remaining unpaid, consented to cancel the deed from himself to Joseph Grant and the mortgage deed and notes from Joseph Grant to him; and to convey the farm to Joseph Grant, jr. and Washington Grant, and to take a mortgage from them to secure the purchase money not yet paid.

The inquiries arise; what would have been the rights of the parties, if the first deeds had not been cancelled; and what was the effect of that cancellation upon their rights. The statute, c. 36, provided, that no bargain, sale, mortgage, or other conveyance of lands, “shall be good and effectual in law to hold such lands, tenements or hereditaments against any other person or persons, but the grantor or grantors and their heirs only, unless the deed or deeds thereof be acknowledged and recorded.” After Joseph Grant had entered into possession he might have conveyed the farm to a third person, who being ignorant of the mortgage deed to Buck might have procured his deed to be recorded before the mortgage to Buck, and have thereby acquired a good title against that mortgage; for the plain reason, that the statute had declared, that it should be good against Joseph Grant and his heirs, but not good against others, such as his creditors, and purchasers from him for value; because it was not recorded. When an estate is attached, and the attachment is preserved, and the execution, issued on the judgment recovered in that suit, is legally levied on it; such levy operates as a statute conveyance at the time of making the attachment. So that the plaintiff is in the same position, as if Joseph Grant had conveyed to him for value at the time of making his attachment. And the result must have been, if Buck had retained his first mortgage, that the attachment and levy would have taken the premises before that mortgage, it being inoperative against the bona fide grantees of Joseph Grant and his attaching creditors, who bad perfected their tides by recording them. The proper course is to levy upon the fee, and not to sell the equity, when the creditor is entitled and intends to take the estate against the-rights of the mortgagee. The right in equity should be sold only, when the attaching creditor is obliged or consents to take the estate subject to the mortgage.

The effect might have been, that Buck would wholly lose his farm by neglecting to record his mortgage. But this is a result, which must have been intended, when the statute declared, that his mortgage should be good only against the grantor and his heirs, if not recorded. And Courts of law cannot relieve persons from those misfortunes, which are brought upon them by their inattention to the plain provisions of a statute.

The cancellation of the deeds might have operated to restore the estate to Buck, if the rights of other persons had not before that time intervened; but it would not have that or any other effect against the rights of such third parties.

Judgment for the demandant.