40 Me. 569 | Me. | 1885
Lead Opinion
Both parties claim title under Sumner J. Pratt. Sept. 24,1850, Pratt conveyed the demanded premises by deed of warranty to John Lyford, and at the same time took back an obligation, in writing, the condition of which was, that if said Pratt should pay a note of that date, for two hundred and twenty-four dollars, in one year, the land should be re-conveyed. This deed was not registered until Sept. 29, 1851. Lyford conveyed the same premises by deed of quitclaim to S. & S. Burrill, Oct. 6th, 1851, and the Burrills conveyed to the tenant by deed of warranty, Oct. 26, 1852.
Pratt also conveyed the premises by deed of quitclaim to John Underwood, March 10, 1851, which deed was record
On the 14th of August, 1851, Underwood assigned to the demandant the deed which he received from Pratt, with certain notes from the same person. The assignment was upon the back of the original deed, and contains the following language, “ do hereby grant, assign, release and convey unto the said Merrill, the premises within conveyed to me, and all my right and interest and estate in and unto the same.” This assignment contains no covenants of seizin, possession or title, in the assignor.
Section 26, c. 91, R. S., provides, that no conveyance of any estate in fee simple, fee tail, or for life, and no lease for more than seven years from the making thereof, shall be good and effectual against any person, other than the grantor, his heirs and devisees, and persons having actual notice thereof, unless it is made by a deed recorded, as provided in this chapter.
The first question presented is, had Underwood actual notice of the existence of the deed of Pratt to Lyford, at the time Pratt made the quitclaim to him ? That he had such notice there can be no doubt. The recitation in the deed, and the testimony of Cutler and Pratt, is conclusive on that point.
Does the demandant stand in any better condition than Underwood, his assignor? We think not. The actual possession of the premises has been in the tenant and his grantors. Underwood had no possession under his deed, and his deed, on its face, recited that there was an incumbrance upon the land. These facts the demandant knew, at the time of the assignment to him. And still further, it appears from his letter to Pratt, dated July 29, 1851, that Underwood was really acting for him, and in his behalf.
In that letter, he says, “your notes and deed to John Underwood have been assigned by him to me.” And in a
In view of these facts, we think the demandant cannot claim to be exempted from any notice which Underwood was proved to have had.
Plaintiff nonsuit.
Concurrence Opinion
concurred in the result only, and remarked upon that part of the opinion wherein inquiry is made, whether the demandant stands in any hotter condition than Underwood; that Underwood was informed hy the deed which he took from Pratt, that “the land was under an incumbrance of $200, and interest from September last;” and Cutler testified, that at the time he made the deed, Pratt informed Underwood that the premises in question were under an incumbrance of $200, to John Lyford, of St. Albans, and that said incumbrance would be payable in Sept, then next. The demandant is not shown to have had the information which Underwood derived from Pratt, detailed in Cutler’s testimony. But the deed to his grantor informed him that there was an incumbrance of $200. That incumbrance must have been under some deed, though none was recorded from Pratt; and when the demandant took a deed from Underwood, of “all my right, title and interest and estate in and unto the same,” he must be treated as expressly limited to the rights which his grantor then held.
I do not find that “ the actual possession of the premises has been in the tenant and his grantors. Underwood had no possession under his deed,” as stated in the opinion, is shown by the case.