26 Me. 484 | Me. | 1847
The opinion of the Court was by
A default has been entered in this case, under an agreement, if the plaintiff is not entitled to recover
The defendant then exhibited a mortgage of the premises from said Brown to him, and executed before the one made to Rowe, but not recorded till about two years after that conveyance. The defendant insists that Rowe, at the time he took his deed, must be regarded as having had notice of the existence of the one to the defendant. To establish this the burthen of proof is on the defendant. He must show, in the language of the Rev. St. c, 91, <§> 26, that Rowe had ;c actual notice” of the existence of the deed to him. It is not pretended that he ever received any explicit communication from any one of the existence of such a fact; but that he was bound to have inferred it from facts that did come to his knowledge ; and therefore that he must be regarded as having had “ actual notice” of it.
In the first place it is urged, that what was said to Rowe, at the time he made the loan and took his mortgage as collateral security, should have indicated to him, that the defendant had not conveyed his estate to Edwin Brown, without taking back a mortgage as security for the maintenance of himself and wife. The language used upon that occasion, and by way of inducing Rowe to make the loan, was, that Edwin “ was g.oing up to Newfield, and was going to have property worth 6 or 700 dollars by taking care of his wife’s father and mother.” It is said in argument, by the counsel for the defendant, that the practice is such throughout ihe country, that Rowe could but have known that Edwin must have given the defendant security by mortgage to comply with the terms upon which he was to receive a conveyance of the estate. This argument assumes a fact not contained in the Judge’s report, to wit, the general practice throughout the
It is next contended, that the defendant went into possession under his mortgage, and continued to occupy the estate, as he had done before he conveyed it to Edwin. If there be such a change in the possession of real estate, if the one leaves it, and another takes actual possession and occupies it exclusively, in pursuance of a conveyance thereof in fee, though unrecorded, a conveyance to a third person by the same grantor will be inoperative against the former deed. But if a man conveys his estate in fee, and the grantee immediately enters upon the estate, and there continues, and duly records his deed, although the grantor remains on the estate with his grantee ; and even continues his labors thereon as before his conveyance, is any one bound to infer, that he has in his possession a deed of re-conveyance ; especially, when the entry of his grantee was simultaneous with the execution of his conveyance ? There is no precedent or dictum authorizing such an inference; nor would such an inference be reasonable. Much less could it be reasonable to infer, that a mortgage like the one in question had been taken back, and was in the possession of the grantor, and unrecorded. We think, therefore, that Rowe became .seized under his mortgage; and his estate having been transmitted, by assignments to the plaintiff, that he has a right to a judgment as on mortgage upon the default.