Lawrence v. Tucker

| Me. | Apr 15, 1831

Mellen C. J.

delivered the opinion of the Court at the ensuing May term, in Cumberland.

This is an action of debt on bond. Upon the several pleadings and issues, the principal, if not the only question, is whether the plaintiffs, by means of certain attachments and the levies of their respective executions, hereafter described, in connexion with certain conveyances and their legal operation, are owners of one fourth part of the Mclutirc farm, so called, or only one twelfth part thereof. Though a long catalogue of facts is contained in the report of the judge, yet we apprehend that the decision of the cause depends on a few of them only. By the deed from Sewall and Hooper to Joseph Granger, the legal estate of the whole was conveyed to him, although George Scamman was concerned in the purchase and paid one half of the purchase money, and although the plaintiffs were acquainted with that fact. A part of the plaintiffs in their action against the said Joseph Granger, and the remaining part of them in their action against him, caused the said tract of land to be attached on the 23d day of Aug. 1826. In May 1827, they respectively recovered judgment, and on the 30th day of June following, they caused their executions to be duly extended on one undivided fourth part of said lot of land. These executions having been levied within thirty days after rendition of judgment, and seasonably registered,, conveyed a good and legal title to the plaintiff, having relation back to the 23d oí August, 1826, the day of attachment, unless the plaintiffs or their attornies, before or at the time of the attachments, had knowledge of the existence of the deed made by Joseph Granger to George Scamman on the 15th day of April, 1824, of one undivided moiety of that tract of land, though the deed was not registered until July 30th, 1827, about eleven months after the attachments were made. If they had such knowledge, it is admitted that the title of George Scarnmon under this deed would prevail against the levies. It is not pretended that either of the plaintiffs had any express knowledge previous to the attachments. Nor is there any proof that either of the attornies of either set of creditors had such express knowledge at that time, though E. Shepley had notice of 'it after the attachments and before the extent of the executions; but such knowledge does not defeat the title under the execution, as we decided in the case of Stanley v. Perley, 5 Greenl. 369. It is contended, however, that E. Shepley must be presumed to have known the existence of that deed because he took the acknowledgement of the deed from George Scamman to Joseph Granger and others of The. 6, 1824, of the same moiety previously conveyed to George Scamman by Joseph Granger. Nothing can be more slender than such a presumption; for surely a magistrate has no occasion to examine die contents of a deed, merely because the grantor applies to him to take the acknowledgement of it. He has no concern with the contents, or right to examine them. But it is idle to urge this argument, because E. Shepley testified that he did not know of the existence of the deed till some time after the attachments were made. There is an end then of all pretence of express knowledge.

But it is contended that the possession of George Scamman under the deed from Joseph Granger to him, was of such a nature as to furnish implied notice of a conveyance of the title and a change of ownership. In cases of implied notice, the facts must be of such a nature as to leave no doubt of the truth of the transaction ; suspicion, conjecture and probability, that there has been a change of property and transfer of title are not sufficient. McMchan v. Griffin, 3 Pick. 149, and cases there cited; Boynton v. Rees, 8 Pick. 329. For in many cases even where there has been a change of property, there may have been no change of possession in virtue of which third persons would be able to draw any satisfactory much less any certain conclusions as to the real state of the tide. The facts in the present case, from which it is contended that notice of the conveyance from Joseph Granger is to be implied, áre of a very doubtful character; for though Henry Green occupied the Mclntire farm from the spring of 1824 to the autumn of 1828, he made the bargain with Joseph Granger the first year, and there was no other agreement made afterwards until the last year, or year 1828. It is true Granger states that after the year 1824 he considered himself tenant under George Scamman of one half, and Oreen as tenant of the whole; still this understanding of Joseph Granger as to his own character and that of Greene, in relation to the occupation of the farm, were circumstances known only to themselves. They gave nothing in the shape of information to others of any change of title and consequent change of possession ; and the more natural presumption was that any acts done by Joseph Gran-ger on the land, from tho years 1824 to 1828 inclusive, were done in virtue of his ownership under his deed from Sewall and Hooper, recorded January l, 1825.

We do not perceive any objection to the title of the plaintiffs under their respective attachments and levies, in consequence of tho alleged disserve of Joseph Granger by means of the deed of George Scaminan to Joseph Granger, Daniel Granger and Andrew Scam-man, bearing date December 6, 1824, and their entry under it; their possession, whatever it was, must have been in common, and so was not exclusive of Joseph Granger's rights. The ruling of the judge, by means of which certain parol evidence which had been offered was excluded, was unquestionably correct. There must bo judgment for the plaintiff, according to the agreement of the parties.