drew up the opinion of the Court. The demandant’s right to recover possession of the premises demanded is perfect, unless defeated by the levy made by the tenant to satisfy the judgment which he had recovered against Moses Stickney.
The title of Stickney proceeded from the demandant, and was restored to him by the mortgage deed from Stickney. The deed to Stickney being on record exposed the land to the attachment of any of his creditors, so long as the mortgage deed remained unrecorded ; but if not attached during that period, it was not liable to the debts of Stickney. By the writ of attachment and the return thereon by the officer, until amended, it would appear that Stickney had nothing which could be attached but the right in equity to redeem ; for the mortgage deed was recorded on the 27th of May, and the attachment was apparently not made until the 6th of June following. A purchaser for a valuable consideration, ignorant of any attachment before his purchase, would unquestionably have held against a creditor claiming under that attachment; and no amendment of the
The demandant’s case is at least as meritorious as that of a subsequent purchaser without notice. He took the mortgage as security for the price of the same land, which he had sold to Stickney, on the same day that he conveyed to Stickney. By omitting to register his mortgage deed, he left the land exposed to attachment by Stickney’s creditors ; but the only evidence of such attachment is the return of the officer. He records his mortgage when there is no evidence of an intervening attachment. In equity we think he is as well entitled to hold under his deed, as the creditor would be to hold under an attachment appearing to be made before the deed was on re cord. We do not interfere with the rights of the Court of Common Pleas to allow the officer to alter his return ; from the evidence on which that court acted, we presume they had sufficient ground to be satisfied that the attachment was made on the 6th of March. But they did not decide on the effect of the amendment, nor could they, so as to bind this Court upon any question arising out of the proceedings, which might affect the rights of third persons. The whole matter appearing of record to us, the original return and the subsequent amendment, we must decide on the legal effect upon the plaintiff’s title, and we are satisfied that the title is not impaired by the attachment as proved. A different decision would be produc- • tive, we apprehend, of great mischief. The time when an
Notes
See Taylor v. Mixter,
See Means v. Osgood, 7 Greenleaf, 146; Bowman v. Stark, 6 N. Hamp. R. 159; Brainard v. Burton, 5 Vermont R. 97; Johnson v. Day,