Rublee v. Mead , 2 Vt. 544 ( 1830 )

Royce, J.

delivered the «pinion of the court. — The member» of the court are not fully agreed in opinion upon the point of priority in recording, between the plaintiff’s attachment and the de - fendant’s deed ; but for the present occasion that point, as also those relating to the seisin and ouster as laid in the declaration, and to the necessity of an entry, notice to quit, or demand of possession preparatory to bringing the action, are ruled in favor of the plaintiff.

The principal question to which our attention has been directed is, whether the facts in this case, aside from the record of the deed, furnished evidence sufficient to affect an attaching creditor \of Joel Mead with notice of title in the defendant. Notice may be of different kinds, as constructive, from a record authorised by law, express, when direct information of a fact is communicated to the party, or implied, when the fact is sufficiently indicated by other circumstances. The proposition that a prior unrecorded deed, il bona fide and for a valuable consideration, will prevail against a subsequent purchaser having notice of such deed, has been long settled beyond controversy ; and the question here is not upon the general rule, but upon the species of notice to be required,and tha kind of evidence by which it should be shown. This subject seems to have been much discussed in Massachusetts, under a part of their statute which is exactly.similar to the 5th section of ours.— Vt. Statute, 167. In Norcross vs. Widgery, 2 Mass. 506, Parsons, Ch. J. says, “The provision of the statute for registering conveyances is to prevent fraud, by giving notoriety to aliena-tions. But if the second purchaser has notice of the first conveyance, the intent of the statute is answered, and his purchase af-terwards is a fraudulent act. This notice may be express, or it may be implied from the first purchaser being in the open and exclusive possession of the estate under his deed.” In the supplement to 3 Mass. 576, Judge Trowbridge, speaking of the entry of a grantee, under an unrecorded deed says, — “ and such entry, being followed by a visible improvement of the land, and taking the profits thereof, is such evidence of an alteration of the prop;-erty, as will amount to the implied notice thereof.” In Farnsworth vs. Childs, 4 Mass. 637, Parsons, Ch. J. again remarks,— u and it has been very reasonably determined that notice to the second purchaser may be either express or implied. It is express, when knowledge of the first conveyance has in fact been comma-vacated to him. It may be implied from circumstances ; as when the first purchaser is in possession claiming the land.” The same doctrine is laid down in each of the other cases cited on the part of the defendant. The case in 3 Pick. 149, was one in which the possession was held not to be sufficiently notorious to furnish evidence of title. The learned opinion there given is calculated to limit, but does by no means overrule, the doctrine of previous decisions. The cases in 4 Pick. 252, and 5 Ib. 450, are distinguishable from the present. Upon the whole there is no doubt that implied notice is admissible in these cases, to affect the validity of a second purchase, and that an open exclusive possession and improvement of the land for any considerable time is proper evidence to establish such notice.

Upharn, for the plaintiff. Baylies, for the defendant.

In the'present instance there was a possession, attended with every ostensible character of ownership, for about nine years previous to the attachment. The defendant paid no rent, nor did or suffered any act implying title in another ; he cleared the land and built upon it as any absolute proprietor would have done. And we think such possession was notice to the public, quite sufficient lo put any person upon enquiry into the defendant’s title, who after all this would attempt to acquire one under Joel Mead. It is true that when the attachment was made the defendant’s deed was very recent; but still the presumption of a right in him was so strong, that the plaintiff acted at his peril, and must submit to the legal title in which this presumptive evidence had finally terminated.

That an attaching creditor is equally affected with notice of a prior conveyance as any other purchaser, we believe is little doubted by the profession at this day, though formerly it was supposed there was a distinction. There seems to be no good reason for the difference, since the ground of impeaching the second purchase is fraud upon the rights of the first purchaser; and no creditor can claim an indulgence to commit a fraud. — 4Jllass. 639.-6 lb. 487. — 10 lb. 60. — 1 Swift’s Dig. 126.

Judgment of the county court affirmed.