Hoisington v. Hoisington , 2 Aik. 235 ( 1827 )

After argument by counsel, the opinion of the Court was pronounced by " '" ’

Hutchinson, J.

This is an action of covenant broken; and the breach assigned is, the outstanding lease of Elijah and Oliver, to Mary, their mother. The subject has been-referred to indifferent men, who have made a special report of the facts shown and agreed upon by the parties, and this Court are now called upon to announce the law arising from those facts.

The principal question to be decided is, whether that which is relied upon as a breach of the covenant, is such, in a legal point of view 1 This involves the question, whether the plaintiff, when he received his deed containing *tbe covenants in question, had such knowledge of the lease as, will now prevent his holding the premises against the lessee ? This knowledge must be derived from the recording, at full length, of the unacknowledged lease; or knowledge in fact must be proved. The Court consider the record not such, that the plaintiff is obliged, at his peril, to take notice of it. The statute upon this subject, (see page 167,) provides, “that all deeds of lands lying in this state, signed and sealed by the person granting the same, and having good and lawful authority thereto, and signed by two or more witnesses, and acknowledged by such grantor or grantors, j,eforc a jus(jce 0f the peace, and recorded, at length, in the clerk’s office of the town in which such lands, &c. lie, shall be valid to pass the same, without any other act or ceremony in law whatever.” This may all exist, and yet a purchaser be ignorant of a deed thus recorded- But, because every person may know, if he will be careful to search where the. law requires notice to be, he must not avail himself of actual ignorance of a deed thus executed and recorded: but he will be presumed to know, and treated as knowing of such deed. So on page 168, provision is made for the recording of an unacknowledged deed, otherwise regularly executed, and makes that sufficient notice to purchasers and levying creditors, for the space of sixty days from the time of recording, and from thence until the final determination of a process to compel an acknowledgement. This last provision implies, that the recording would have no effect without the aid of this part of the statute.

The question of implied notice,, regulated by statute, can be carried no further than where the statute places it: and this lease, when recorded, was too incomplete to attach any effect to its being recorded.

When knowledge in fact of a former deed is relied upon, to show a fraud in procuring or receiving one of a later date, such a record, with proof that it was seen by the last grantor, may be proper testimony in showing such fraud; just as would be an oral communication that such a deed existed. But there seems to be no intimation in this case of any notice in fact of the lease, unless the same were to be implied from the widow’s continuing in possession, according to the doctrine in the case of Marshall vs. Fiske, cited from the 6th of Mass. R. p. 24.

The Court consider that this case does not at all compare with that, nor furnish any such grounds of constructive notice. This lease is .of Ja peculiar character. It is executed mutually by the mother and her two sons, of whom the defendant was one; and, by its own terms, it was to have no effect to give the lessee a right of possession, until the failure of the two sons to furnish a certain general support; which failure might never happen. In the mean time, it was to operate as a mutual agreement of the three, to live together in the house and on the premises, enjoying and promoting one common interest of the three. There is no evidence that it had become operative to convey the right of possession when the plaintiff took his deed from Elijah. This possession of the widow, in conjunction with Elijah, the present defendant, he managing the farm as his own, furnished no evidence or presumption inconsistent with his right to hold and sell the premises. His deed, therefore, did convey the premises to the plaintiff, and the plaintiff can hold the same against the lease. And his complaint of a breach of the covenant is without, foundation. The remedy of the moth- or, for her support, must not be an entry under the lease, but a claim upon the covenants in the leaser

Thomas Leland, counsel for the plaintiff. Carlos Coolidge, counsel for the defendant. .

The entry to be made is, that the report be accepted,' and judgment thereon be rendered in favour of the defendant.