8 Me. 94 | Me. | 1831
delivered the opinion of the Court.
We are all satisfied that the preliminary proof introduced by the demandant, respecting the existence and loss of the origin al deed from John Curry to him, was sufficient to authorise the admission of the copy, as decided by the Judge who presided at the trial.
The first section of ch. 36 of the revised statutes, contains this clause: i£ And no bargain, sale, mortgage or other conveyance, in fee simple, fee-tail or for term of life, or any lease for more than seven years from the making thereof, of any lands, tenements or hereditaments within this State, shall be good and effectual to hold such lands, tenements, or hereditaments, against any other person or persons, but, the grantor or grantors and their heirs only ; unless such deed or deeds thereof be acknowledged and recorded in manner aforesaid” — that is — recorded at full length in the registry of deeds in tbe county where such real estate may be situate. The foregoing is a copy of a provision in the act of 1783, on the same subject, now in force in the Commonwealth of Massachusetts. The provincial statute of the 9th of William 3d. ch. 7, contains a similar provision, with some little variation in its phraseology, but not in principle.
The registry of a deed is the only statute mode of giving notice of the change of property by means of the conveyance : and it is also the only statute mode of giving effect and operation to it, as to any person or persons, except against the grantor and his heirs. The reason why the grantor was excepted, undoubtedly must have been, that be necessarily must liave bad knowledge of the existence and nature of the conveyance from the very fact of bis having made it j and his heirs were excepted, because, as claiming under him, they are bouud by bis acts and his knowledge. This exception shows what was the general object in the view of successive legislatures, in requiring the registry of deeds in the manner before mentioned. It was to give public notice that tbe grantor had conveyed to the grantee the estate described in tbe deed of conveyance, so as to secure after purchasers of the same property from tbe same grantor or bis heirs, from being deceived and defrauded. But still it lias for a long series of years been the uniform construction of the
Though a deed is not recorded, still other persons besides the grantor and grantee, may have notice of its existence and its contents. This knowledge may be either express or implied. He who relies'upon proving express knowledge of the fact, must prove it by clear and unequivocal evidence, and not by floating rumors or loose conversation And implied notice must be proved by those circumstances from which the inference of knowledge may be clearly made, and at least appear natural and necessary. The learned Judge Trowbridge, 3 Mass. 575, lays down the principle that an entry under a deed “ being followed by a visible improvement of the land and taking of the profits thereof is such an evidence of an alteration of the property as will amount to implied notice.” This is true, but in many cases there may be no evidence that the entry was made under a deed ; though the improvement and possession may be distinct and exclusive. A person may be in possession under a lease 5 or the fee may be conveyed by the lessor to the lessee in possession, and thus no change of possession follows. In
An entry and open and exclusive possession and perception of profits under an unregistered deed, has often been considered and ijronomiced as equivalent to the registry of the deed. This cannot oo corroer,; the language is too strong, and is, ou that very account, deceptive. In the above cited passage from the reading of Judge Trowbridge, such improvement and perception of profits is only pronounced to be implied notice $ and it never amounts to any thing beyond that. If it were equivalent to the registry of a deed, then it would follow, as a legal consequence, that a fraudulent purchaser, with notice of a prior unregistered deed, and his innocent grantee without such notice, who had paid a full consideration and placed his deed on record, would both stand on the same ground, and neither of them could hold the land against the first purchaser, who entered under his deed and openly possessed and received the profits without recording it. Rut such a consequence is utterly inadmissible ; for it is unquestioned law, that in such case the innocent purchaser could hold the title against every one, as has been before stated in this opinion. Ouch entry, exclusive possession and taking of the profits, wc repeat, is only implied notice of a change of property and transfer of it from the former owner to tire person openly possessing it ; from which notice, fraud in a second pin-chase!' is presumed, and by which it may be proved «.gainst him, so as to defeat the title of him who has been guilty of it ; but beyond finis, neither the words, nor the long established construction of the statute have ever been extended. An unrecorded deed is good against a second purchaser with notice of it, though his deed is recorded 5 because, in consistency with the soundest principles of morality, the negligence of the first purchaser in omitting the registry of his deed, may anti ought to be overlooked, rather than that the fraud of-fiio second purchaser should prove successful. And an innocent grantee of a fraudulent purchaser shall hold against the first
We will now attend to some of the facts, having an important influence in the decision. The deed from Carr to Curry was never registered ; and though Curry went into possession under it and was in possession at the time of his conveyance to the demandant in October 1813, yet it does not appear that any one occupied the land from that time, until Stone entered under his deed in 1815; and it was admitted at the argument, that during that interval, the land was wholly unoccupied and unprotected ; though the demand-ant’s deed from Curry was recorded in September 1814. It does not appear, nor is it pretended, that the tenant at the time of his purchase from the administrator, had any knowledge of the conduct of Stone in procuring his deed from Carr or the defect in Stone's title, or of the deed to, or possession of the land by Curry while he was the owner of it. Upon these facts the Judge instructed the jury that if they believed that Stone had knowledge of the above mentioned particulars, when he obtained his deed from Carr, the demandant was entitled to a verdict. By this instruction, a scienter on the part of the tenant, was deemed of no importance. But, for the reasons and on the principles above stated, inasmuch as the
T^erdict set aside and new trial granted.