Hanly v. Morse , 32 Me. 287 ( 1850 )

The opinion of the court, (Tenney, J. dissenting,) was read by

Wells, J.

Walter Blake, being the owner of the demanded premises, on the thirteenth of June,' 1827, by his deed of that date, which was recorded on the twenty-seventh of the following August, conveyed them to Daniel F. Harding. Blake was in the actual ^possession at the time of his conveyance, and retained it until- his death on the twenty-third of August, 1846. Harding, on the eighil of September, 1840, re-conveyed the same premises to Blake, but his deed was not recorded until the nineteenth of June, 1848. On the twelfil of November, 1847, Harding conveyed them to the demand-ant, by deed recorded on the fifteenth of the same November. The tenants claim title under Blake and his representatives.

The jury have found, in answer to a question put to them by the court, “ that Walter Blake was in possession of the demanded premises at the time of his death, by his tenants, under the deed of Daniel F. Harding, of September 8, 1840, and that his representatives were in possession at the time the demandant took his deed from D. F. Harding of November 12, 1847.”

The possession of the representatives of Blake, whether as heirs, tenants or grantees of him, must be viewed in the same light, as if he had held it himself when the demandant took his deed.

The deed from Harding to Blake was made before the Revised Statutes went into operation. And at that time the law was well settled, that the visible possession of an improved estate by the grantee under his deed is implied notice of the sale to subsequent purchasers, although his deed has not been recorded. Matthews v. Demerritt, 22 Maine, 312. So that the possession of Blake under his deed from Harding afforded him the same protection, by the law then existing, as if it had been recorded.

But the Revised Statutes, chap. 91, sect. 26, introduced a new principle, and abolished the constructive notice arising from possession under a deed not recorded, and required actual notice of such deed to a subsequent purchaser, to prevent him from holding the estate.

This statute cannot be understood as applying to deeds made before its passage ; its language doe's not require such construction. If the Legislature had intended that those who were quietly reposing on their titles, which were then entirely valid, by the law as well known and understood, should lose that protection, and that they could not be secure from subsequent purchasers under their grantors, unless their deeds were recorded, it is believed, that a more explicit expression of such intention would have been made. When an estate is fully vested in the holder of it, if it should be required by the Legislature, that he should perform some further act in order to retain it, such requisition would doubtless be declared in clear and unambiguous terms. It cannot be fairly deduced from the provisions of the statute under consideration.

In Spofford v. Weston, 29 Maine, 140, no constructive notice arising from actual possession on the part of Johnson or Spoiford was set up to defeat the operation of the deed to Weston, but the question presented for decision was whether Weston had actual notice of the deed from Butler to Johnson, under whom Spoiford claimed.

It is agreed by the parties, that if upon the documentary evidence and the finding of the jury on the special questions presented to them, the demandant is not entitled to recover, the verdict is to be set aside and a nonsuit entered.

The documentary evidence shows a valid deed from Harding to Blake, prior in time to the deed of the demandant from the same grantor, and that the tenants hold under Blake and his representatives ; and the jury have found, that Blake was in possession at the time of his death, by his tenants, under the deed of Harding, and that his representatives tvere in possession at the time the demandant took his deed from Harding. And as the evidence must be viewed in reference to the law as it was when Blake took his deed, it follows that a nonsuit must be entered.