Stevens v. Bachelder , 28 Me. 218 ( 1848 )

The opinion of the Court, was drawn up by

Shepley J.

— It is admitted, that the defendant became the owner of a farm by conveyance from Gilbert Wellman, on October 31, 182!. The testimony exhibited in the case shows, that hé conveyed the same to Samuel Stevens, who entered into possession thereof during the year 1828, but never caused his deed to be recorded.

The plaintiff claims title to a part of that farm, by virtue of the levy of two executions, issued on judgments, recovered by John Spear, against Samuel Stevens, and by a conveyance from Spear to himself. His title to that part covered by the first levy is not disputed. The second levy was made, June 15, 1833, as appears by the return of the officer, made under that date, upon the back of the execution. The register of deeds also made upon it the following certificate: — “ Lincoln, ss. Received September 12, 1833, and entered with the records for deeds, for said county, vol. 152, page 295.” It appeared from the book of records, that the execution and return had been recorded, except the name of the officer, which had been omitted in the record.

The defendant claims title, by a conveyance, made of the farm by himself to Oliver Fales, on March 2, 3 831, recorded July 12, of the same year, and by one from Fales to Artemas W. Wiley, made on December 28, 1838, and by one from Wiley to himself made on February 27, 1840. It appears from his declarations, introduced by the plaintiff, that the defendant made a conveyance of the farm to Fales, after he hadl conveyed it to Stevens, to accommodate Stevens, taking back, from Stevens, the unrecorded deed made to him. Fales testified, that he knew, that the unrecorded deed to Stevens existed, when he received his conveyance, and that he had it in. his own possession for three or four years.

In the case of the Commonwealth v. Dudley, 10 Mass. R. 403, it was decided, that the only exception to the rule, that a previous conveyance, unrecorded, is not good' against any other person, than the grantor and his heirs, was that of a second purchase made with a knowledge of the first and with a fraudulent design to defeat it. In this case it is apparent, that the conveyance made from the defendant to Fales, was not made to defeat the previous conveyance to Stevens, for it was made for his accommodation. It is alleged in argument, to have been fraudulent as against the creditors of Stevens; but there is no testimony in the case, that any fraud upon creditors was designed. Such fraud cannot be inferred from the transaction itself; for the inference is unavoidable, that Stevens received the consideration for the conveyance made to accommodate him. Fales’ title appears therefore to have been good against Stevens and those of his creditors, who had not obtained a title under him, before the conveyance to Fales was recorded. Holbrook v. Tirrell, 9 Pick. 105. If there could be any doubt respecting the title of Fales, it would seem, that there could be none respecting the title of Wiley, for there is no testimony presented. tending to prove, that he was not an innocent purchaser, without notice of the existence of the conveyance from the defendant to Stevens. The title of the defendant, derived from Wiley, will not be impaired by his knowledge of his own conveyance to Stevens, and of the levy made upon the estate by Spear. This must be the result, unless the plaintiff can establish his title by relation to the date of the attachment made by Spear, of the estate of Stevens, on .Tune 9, 1831, prior to the record of the conveyance from the defendant to Fales, on July 12, 1831. In such case the arrangement between Stevens and the defendant, to have the farm conveyed to Fales and the conveyance made accordingly, cannot operate to defeat any rights, which the plaintiff had already obtained. A levy, not recorded, within three months, as the statute requires, will be invalid, except against the debtor and his heirs and those having actual knowledge of it. McLellan v. Whitney, 15 Mass. R. 137.

The counsel for the plaintiff insists, that the certificate of the register of deeds made upon the execution, is conclusive evidence of the record of the levy as of that date.

The statute then in force, c. 60, § 27, required the execution with the officer’s doings thereon, to be recorded in the registry of deeds, within three months. The statute c. 36, providing for the record of conveyances of real estate, required, that they should be recorded at length in the registry. Them was then no statute provision making it the duty of the register of deeds to certify upon a deed or execution levied upon real estate, that it had been recorded. It might be regarded as recorded, when left in the registry for that purpose, while it remained there subject to examination, before the record was actually made. The record, or the conveyance itself, left in the registry for record, was the only legal notice of the conveyance of real estate, recognized by our statutes, before the enactment of the provision contained in the Revised Statutes, c. 91, § 25, that the register shall certify on every deed recorded by him, when it was received, and every deed shall be considered as recorded at the time, when received. Whether under this provision a record wholly imperfect, may be treated as a nullity, and the certificate be regarded as evidence of a record, after the deed has been withdrawn from the registry and retained in the private custody of the grantee, may well be doubted. The design probably was to make the certificate evidence of the time of the record, while the deed remained in the office unrecorded. But it is not now necessary to decide, what may be the true construction. To maintain such a proposition before the statutes required, that a certificate should be made, and that a book should be kept, containing the names of the grantor and grantee, the places of their residence, and the date, when the deed was left for registry, would be to establish a rule, which would deprive all persons, except those to whom it was actually known, of all legal means of obtaining knowledge of the existence of a conveyance, by which their rights might be affected, and at the same time, making it effectual against them. It would make the registry, legal notice of a conveyance, without affording any legal right and opportunity to obtain actual knowledge of it.

A similar question was presented and decided in the case of Hastings v. Blue Hill Turnpike Corporation, 9 Pick. 80. The clerk of the corporation had certified on the back of a deed conveying shares, that it had been duly recorded, On production of the records it appeared that it had not been. The Court decided, that the record was admissible and conclusive, that the certificate was only prima facie evidence and. that it would be no notice to subsequent purchasers, that to determine otherwise would be to defeat one of the principal objects of the record.

One question presented in the case of Tracy v. Jenks, 15 Pick. 465, was when a deed of real estate was received and recorded. The certificate indorsed upon the deed by the register and his entry upon the record corresponded in stating the time to be on May 27, 1832. There was an entry made by the register on the record. “ N. B. The above was taken from this office on Monday, 28th of May, 1832, about 2 o’clock P. M. before it was recorded, and returned back to the office on Wednesday, 30th May, about 10 o’clock A. M.” The Court did not consider this to be any legal evidence of the fact, and observed, that the original certificate of the register of deeds, is to be taken to be conclusive as between creditors. The decision was not, that it would be conclusive against the record stating the time differently, but conclusive against a memorandum not regarded as evidence of the fact stated in it.

In the opinion of the Court, in the case of Ames v. Phelps, 18 Pick. 314, there is found a decision in these words: — “ the original mortgage is certified to have been recorded by the town clerk, who for this purpose is the regular certifying officer; the mortgagee relies upon it as a valid security. It is like the return of an officer and cannot be impeached or controlled by producing the supposed record and showing a variance.” How far this decision may be founded upon the provisions of statutes in that State, or be reconcilable with the decision made in the case of Hastings v. Blue Hill Turnpike Corporation, it is not necessary to consider.; for the doctrine that a certificate made by the register on the back of a deed withdrawn from the registry and remaining where a subsequent purchaser cannot have access to it, or is ■ not required to look for it, can be conclusive evidence of legal notice to him, affecting his rights, cannot be admitted, in the absence of any statute provision, declaring that such shall be its effect.

The record of the return of the officer without his signature to authenticate it, cannot be considered such a record as the statute required to make the levy effectual against subsequent purchasers; and there was no testimony tending to prove, that Tales had any actual knowledge of it.

It is unnecessary to inquire, whether the testimony of the register was legally admitted. It was immaterial, and so treated by the presiding Judge, who decided, that the levy was without any legal effect in the case, because the officer’s name authenticating his doings was not found in the record.

It has been contended in the argument for the plaintiff, that by a true construction of the deeds of conveyance, by virtue of which the defendant claims title, that part of the farm remaining, after both the levies had been made, would be conveyed, and no more. No such question appears to have been made at the trial, or to have been presented in the bill of exceptions; and no copies of the conveyances have been furnished, to enable the court to decide it, if it had been made.

A motion has been made to set aside the verdict, because no pleadings had been made and joined, and no issue had been legally presented to the jury. The general issue had been plead by the defendant, accompanied by a brief statement, both signed by counsel. The counsel for plaintiff, had filed and subscribed a counter brief statement, but had omitted by accident, to subscribe his name to the formal words, making, the general issue complete. This is no sufficient cause for setting aside the verdict, and granting a new trial, for it is evident, that the plaintiff has suffered no injury from it, and has no just cause of complaint. Exceptions overruled.