11 Conn. 174 | Conn. | 1836
The question presented in this case, for the advice of the court, is, whether the facts stated in the answer of the defendants, are sufficient to prevent a decree of foreclosure against them.
It is not claimed, that the plaintiffs are entitled to a decree against the heirs of the mortgagor ; because, by the terms of the statute relating to the recording of deeds, a deed not recorded is good against the grantor and his heirs.
But it is claimed, on the part of the administrators, that the plaintiffs, by omitting to record their deed in the life-time of the mortgagor, lost their priority as against the other creditors. It is not alleged, that this omission was the result of any fraud on the part of the plaintiffs, or that it was done with any design to enable the mortgagor to deceive his other creditors.
In this state, a grantee or mortgagee, by omitting to record his deed, does not thereby lose the estate conveyed to him, unless some other person acquires some interest in, or lien upon the property, without knowledge of the prior conveyance. As soon as the deed is recorded, it becomes effectual against any subsequent conveyance or attachment.
That such is the law, when the deed is recorded in the lifetime of the grantor, is well settled. Is there any difference between the effect of a deed recorded in the life-time of the grant- or, and one executed in his life-time and recorded afterwards, as it regards those creditors who have acquired no specific lien upon the property ? We can discover no sufficient reason for any such distinction.
A creditor, merely as such, has no specific lien upon his debt- or’s property. He may indeed levy an attachment or execution upon it, in the debtor’s life-time ;&emdash;and it may afterwards be sold for the payment of his debts. But the administrator or executor has no power over property, which the person whom he represents did not own, at the time of his decease.
In this case, Aaron Bissell, the mortgagor, conveyed to the plaintiffs a title, which was valid against him and his heirs, although the deed remained unrecorded. He died the owner only of the equity of redemption. This, the administrators may obtain authority to sell, if needed for the payment of debts. Not so, with the interest conveyed to the plaintiffs. Had the administrators sold it, before the plaintiffs’ deed had been recorded, the title of the purchaser, provided he had no know
The superior court must, therefore, be advised, that the answer of the defendants is insufficient.
Demurrer sustained.