Parshall v. Shirts

By the Court,

E. Darwin Smith, J.

The conveyance from Van Inwagen to the defendant Shirts, made in March or April, 1856, clearly vested in him the title to the one acre of land therein described. And the subsequent return of said deed to the grantor, and the destruction thereof, did not reinvest Van Inwagen with the title. (Nicholson v. Halsey, 1 John. Ch. 417. Jackson v. Anderson, 4 Wend. 474. Kellogg v. Rand, 11 Paige, 59. Raynor v. Wilson, 6 Hill, 469.)

The title to this one acre was therefore in the defendant at the time when the judgment of Breck and others was recovered against him,'and such judgment became a valid lien thereupon. Hence the plaintiffj -as against the defendant Shirts, made out on the trial a perfect title' to this one acre of land. Whether he made out such title a& against Whitbeck is a different question. Whitbeck clearly took no title to this one acre of land, because the title to it was not in his grantor at the time of the conveyance to him, but was in fact and in law in the defendant Shirts. If Whitbeck had purchased this acre - of Van Inwagen without notice of the deed to Shirts—such deed not being recorded—he would clearly have been a purchaser in good faith of this acre, and would be protected by the registry act against the unrecorded deed to Shirts. But if the registry act only protects successive purchasers from the same grantor, as held in Raynor v. Wilson, (6 Hill, 469,) the plaintiff’s title would still prevail, and the plaintiff would be entitled to recover this acre upon the title proved on the trial. But this is a question between the plaintiff and Whitbeck, Which should perhaps be left for decision as between them, as Whitbeck is not a party or privy to this action, and would not be bound by any decision in this suit upon that question. The plaintiff was clearly entitled to recover the premises from the ■defendant Shirts, who was in possession and who alone defends. Shirts could not set up this title of Whitbeck. He was a tenant of Whitbeck from year to year, at the time of the commencement of this suit, and his term had some time to run. This right of possession the plaintiff was clearly entitled to recover. It was error therefore to dismiss the complaint, and the judgment must be reversed, and a new trial granted, with costs to abide the event.

[Monroe General Term, March 1, 1869.

Judgment reversed.

E. D. Smith, Johnson and J. C. Smith, Justices.]