Parker v. Osgood
85 Mass. 487
| Mass. | 1862
Dewey, J.

The objection to the validity of the levy of the second execution, under which the petitioner claims title, upon the ground that the levy was for a larger sum than the officer was authorized to collect thereon, is not tenable. The whole amount set off to the creditor was appraised at $583. Taking the sum for which judgment was rendered for debt and costs, and adding thereto the accruing interest from the date of the judgment to the date of the completion of the setting off of the land, and the officer’s fees and charges, and it will be found to amount to the full sum for which the property was taken. The addition of such interest was authorized by statute. Taylor v. Robinson, 2 Allen, 562.

It was not necessary that the return should specify the precise sum thus taken for interest. The officer having certified that the sum of $583 was the amount of the execution and all fees and charges, the execution would readily furnish the means of ascertaining the amount taken for interest. The officer having correctly stated the amount which was to be satisfied by the levy, and property not having been set off to the creditor beyond that amount, no ground exists for avoiding the levy on that account.

The further inquiry is as to the correctness of the ruling of the court as to the deed from William F. Osgood to Aaron C Osgood. This deed being of an earlier date than the attachment, must, if operative as against the petitioner, defeat his attachment of the land as the property of William F. Osgood. But this deed was not recorded, and of course could have no effect as against an attaching creditor, unless he had actual notice thereof. Rev. Sts. c. 59, § 28. What is to be understood as required by this statute provision ? In the case of Curtis v. Mundy, 3 Met. 405, it seems to be assumed in the opinion of the court that it was merely an affirmance of the rule which had been repeatedly recognized by this court, as to the effect of, notice of an unrecorded deed, and not as a provision requiring more stringent evidence of knowledge of such deed. But in *490the later case of Pomroy v. Stevens, 11 Met. 244, it is assumed that a change in the law in this respect was introduced by the Rev. Sts. c. 59, § 28, and that no implied or constructive notice of an unregistered deed will give it validity against a subsequent attaching creditor. It was said that it was not sufficient to prove facts which would reasonably put the party on inquiry. It was there held that evidence of open occupation and cultivation of land and fencing it, by a person having an unrecorded deed thereof, was not sufficient to warrant the inference of notice of such deed to third persons. If this be so in reference to an occupation by a person coming into possession without any previous connection with the estate, how much more so when the occupancy relied upon to show notice is the occupancy of one long known as the owner of a moiety, or tenant in common of the estate ? Such possession would have no tendency to establish knowledge of a newly acquired title.

The inventory of the estate of Aaron C. Osgood gave no notice of the existence of this deed. The inventory was merely, “ Building and land, $4000.” If any form of an inventory could have been competent evidence to prove actual notice to third persons, the present one fails to furnish such evidence.

Nor can the fact of the assessment of, the taxes of this land wholly upon Aaron C. Osgood be evidence of notice of this deed. Such assessment might properly be made upon him as mere tenant in occupation, without any higher title, and equally so if he was in occupancy as a tenant in common with some other person. The proposed evidence of leasing a portion of other land that had been held in common by the parties, by Aaron C. Osgood separately, and sales of other portions by William F. Osgood, is of the like character. There were other lots of land held by these parties as tenants in common, acquired as heirs to their father, which might have been the subject of division and releases. The lot which is the subject of the present controversy came to them by an independent conveyance from Albigence W. Fisher. The general character of the evidence offered fails to show any such actual notice of this deed as the statute requires.

*491The only question that remains to be considered is as to the proposed evidence of a conversation alleged to have taken place between the petitioner and another attaching creditor of William F. Osgood. This conversation, if it authorizes the inference that, at the period it took place, the petitioner had actual knowledge of the existence of the deed of William F. Osgood to Aaron C. Osgood, which may be questionable, fails to establish the fact required to be proved,'namely, actual notice of this deed to the petitioner at the time of making his attachment on the 21st of October 1853. This conversation took place some months subsequently, and does not recognize any knowledge of the existence of this deed at the time his attachment was made, Looking at the whole case, the court are of opinion that there was no sufficient evidence to sustain a verdict in favor of the respondent. As this evidence was withdrawn from the jury by the ruling of the court, the respondent is entitled to the benefit of it, giving to it its fullest effect, and with all the inferences that a jury might have drawn from it. It is substantially a question whether a verdict could have been sustained upon the evidence, had one been rendered for the respondent. In the view we have taken of the case, it could not, and therefore the jury were properly directed to return a verdict for the petitioner.

Exceptions overruled.