The opinion of the court was delivered by
Royce, J.
The case involves two principal inquiries: — 1st, Whether the premises sued for were port of the estate of Jacob Corliss,- deceased : — 2, Whether they were legally set out to the plaintiff, as dower in that estate.
The first question depends on the deed from Emerson Corliss to the said Jacob Corliss, dated December 11th, A. D. 1828. If that deed was valid and operative betweeen the parties to it, and *386likewise with reference to the defendant; it made a good title in the estate of the grantee. The case discloses several circumstances calculated to excite suspicion as to the intended validity of the deed; such as the occasion on which it was executed, when the main object of the grantor appears to have been, to qualify himself for receiving a pension; — the absence of all proof showing a valuable consideration paid for the conveyance ; — the continued possession and enjoyment of the land by the grantor; — the silence of Jacob Corliss as to this newly acquired estate, and his neglect to procure either of his deeds recorded. But it also appears, that Jacob Corliss and the defendant were the two sons of the grantor, who had already deeded one half of his farm to the defendant, and yet retained possession ; — that for most of the time, after the execution of said deeds, Jacob Corliss was in feeble and declining health; and that on a few occasions, he manifested a claim to the land, by offering to mortgage it. All these circumstances were proper for the 'consideration of the jury, when passing upon the original intention of the parlies. And as they appear to have been correctly submitted with that view, the verdict has established the fact that an actual conveyance was intended. The jury were further instructed, (in pursuance of our decision in this cause on a former occasion,) that if the deed between the same parties, dated May 13th, A. D. 1826, was executed at, or soon after the time of executing that of December 11th, A. D. 1828, on the same consideration and trust, and for the same purpose; or, in other words, was intended as a substitute for it, the giving up of said deed of A. D. 1826 by Jacob Corliss, to be cancelled, would leave the other deed inoperative, without some new agreement to give it force and effect, — something tantamount to a new delivery of it. But that if Emerson Corliss obtained the deed of A. D, 1826 from the possession of Jacob Corliss without his authority or consent, the deed of A. D. 1828 should be treated as in force against Emerson Corliss, and against the defendant also, provided he had notice of its existence before receiving his deed from Emerson Corliss, dated April 6th, A. D. 1831. Under this charge the jury must have found, that Emerson Corliss possessed himself of the deed of A. D. 1826 wrongfully, or that there was an agreement to set up the deed of A.D. 1828. And as the case makes no mention of any evidence tending to show such agreement, the verdict must be taken to have established the other fact.
*387The deed of A. D. 1823, thus appearing to be operative as against Emerson Corliss, it remains to be considered with reference to the defendant. He seems to have had seasonable and repeated notice that such a deed existed ; and the fact of notice is also conclusively implied in the verdict. But he contends that his deed of A. D. 1831 ought, under the circumstances, to prevail over the deed of A. D. 1828, though he acted with notice. It is insisted that the facts to which I have alluded, and especially the neglect of Jacob Corliss to take possession of the premises conveyed, or to place his deed upon record, furnished a presumption against the validity of his title, upon which the defendant, as a subsequent purchaser, had a right to rely. We have no rule of law which requires a deed to be recorded within any fixed period, or within what would be deemed a reasonable time in reference to other business transactions, to render it effectual as to those who have knowledge of its existence. Neither do we regard a change of possession, jin the case of real estate, as legally essential to the safety of the grantee. Still, as great negligence in these respects may become the occasion of deception and injury, some principle of the kind contended for should doubtless be recognized, as a just qualification of that on which the plaintiff proceeds, that notice of an unrecorded deed is equivalent to a record of the deed. As one who purchases with knowledge of a previous conveyance to another is generally chargeable with fraud, so, on the other hand, to give effect to a deed which has long remained unrecorded, may sometimes operate as a fraud, even upon persons having notice of such deed. But since our law has not prescribed the time, nor defined the attending circumstances necessary to render these neglects of the grantee injurious and fraudulent, the court below were clearly justified in refusing to charge upon this point as requested by the defendant’s counsel. The question was one of fraud and imposition in fact, and not of presumed or constructive fraud. Unless the conduct of Jacob Cor-liss was sufficient, under all existing circumstances, to. create a reasonable and full belief in the defendant, that the deed of A. D. 1828 never look effect, or that the title under it had become extinguished, the facts embodied in the request could in no way operate to his advantage. And even then, as that deed is found to have been valid between the original parties, and as notice to the defendant was tantamount to a record of the deed, the effect of the evidence would be, rather to show a fraudulent and unjust use’of a legal title by the plaintiff, than to invalidate the title itself. Under such cir-sumstances, it is usual to resort to a court of equity, which is com*388Petent t0”set aside or restrain a legal title, when attempted to be in violation of honesty and good faith. It is only in Massachusetts, and other states possessing no court of distinct and superior equity jurisdiction, that I find this particular species of de-fence sustained at law.
But the facts relied upon were by no means entitled to the influence claimed for them. There is no reason to believe, that the defendant’s opinion was materially affected by the continued possession of Emerson Corliss, or by the omission of Jacob Corliss to record his deed. The time was quite too short to justify any fixed conclusion from either of those circumstances. On the contrary, as the defendant had seen the deed of A. D. 1826 in the hands of Emerson Corliss, and had witnessed its destruction, he was probably induced to purchase from mistaken apprehensions as to the manner of getting up that deed, or as to the legal effect of destroying it.
The question, whether the defendant should be regarded as a purchaser for valuable consideration, and as such entitled to impeach the deed of A. D. 1S28, as a mere voluntary conveyance, has not been raised in argument, and will therefore be passed without comment.
The result is, that the title to the undivided half of the premises demanded, became perfect in the estate of Jacob Corliss.
The remaining questions in the case arise under the 84th section of the probate act of A. D. 1821. — It is there enacted, “That when any real estate, devised by will, or claimed by heirs, that is required to be divided among legatees, or heirs, or that is to be assigned to any widow for dower, shall be in common, and undivided with the real estate of any other person, the probate court may order the committee appointed to make such division, to sever and divide the testator’s or intestate’s estate from the estate with which it lies in common ; and such committee shall give timely notice to all persons interested, to be present, if they see cause; and such division, so made and accepted by such court, shall be binding upon all parties.” Then follows a proviso, directing guardians to be appointed for infants, persons non-compos, 8tc., and agents for persons out of the state, who are interested in either of the estates to be affected. And this is directed to be done before the division is made. The second proviso is as follows: “ That before such order shall issue, it shall be shown to such court, that all persons interested, or their attornies within this state, have been notified of the application for such order.”
It is contended, as one ground for impeaching the probate pro*389ceedings, that a full division between the estate of Jacob Corliss and ° 1 _ the defendant was not made, and that the land in question does not appear to have been set to the estate. But we think the report of the committee, rightly construed, furnishes an answer to this objection. That they considered themselves required to make a division of the whole farm, appears very clearly from their notice to the defendant. They commenced by setting off to the defendant thirty acres, being one half of the entire tract to be divided, and then severed to the estate of Jacob Corliss another tract of twenty acres. It is true, that the remaining ten acres are not in terms set to the estate; but they are set to the plaintiff, as the widow of Jacob Cor-liss, to be held by her as dower. This conclusively shows that they treated the ten acres as severed from the defendant’s land, and as part of the estate of Jacob Corliss.
A more important objection arises under the second proviso, above recited. The defendant has a right to allege, that the warrant to the committee was issued without the notice contemplated in that provision. It was apparent to the probate court that dower was to be taken in this form, and that the defendant or Emer-erson Corliss had an undivided estate in the farm. And though, in terms, the plaintiff’s application was merely for dower, and not for a division between the estate and third persons, yet such a division was manifestly necessary, to effect the object of her application. In substance, therefore, it was an application as well for a division with the defendant, as for the setting out of dower. It was a case, in short, within the obvious meaning of that enactment.
The requirement of this preliminary notice was intended to secure to those whose interests were to be affected, an opportunity to appear and be heard in the probate court, as to the legality and expediency of the division, and as to the fitness of the committee. And as this privilege may often be of great benefit, I am not disposed to treat the requirement as merely directory. Nor is the difficulty removed, by simply insisting on the jurisdiction of the probate court over the subject matter, and the consequent conclusiveness of its'final decree. For this view of the subject is counteracted by the consideration, that to conclude the rights of a person by any proceeding of a judicial nature, to which he was not a party, and against which he could not defend, is repugnant to the first principles of justice. Notice is so essentially necessary, that without it such proceedings are uniformly held to be void, except in cases where the statute has provided specific means of relief. So far has this principle been carried, that such proceedings have frequent*390ly been adjudged void for want of notice, even where none was expressly directed by statute. — Robinson vs. Robinson, 1 D. Chip. R. 357 — Chase vs. Hathaway, 14 Mass. 222" court="Mass." date_filed="1817-07-15" href="https://app.midpage.ai/document/chase-v-hathaway-6404597?utm_source=webapp" opinion_id="6404597">14 Mass. R. 222.
But though this proviso does not strictly belong to that class of statutory enactments which are merely directory, yet we consider that a failure to comply with it has not rendered these proceedings void. The committee were required by their warrant to give the defendant notice, which they did. This was a notice expressly enjoined by the 84th section, and the defendant acted at his peril in disregarding it. By that notice he became so far a party to the proceeding, that he had a right to attend the committee while making the division, and an opportunity to contest their report. He also bad a right, [under the 7th section of the act, to appeal from the probate decree accepting the report. — Shumway vs. Shumway, 2 Vt. R. 339.
■ It is true he had lost the benefit of the previous notice which the proviso requires, and for that cause might doubtless have procured the whole proceedings vacated on appeal. But having neglected to avail himself of these rights, he ought now to be bound by the decree. He should be considered as having waived all advantage from this defect. Justice and convenience seern to demand this result. It is far better that he should submit to some possible injustice in the division, than be allowed in this collateral manner to avoid it.
Judgment of county court affirmed.