Pierce v. Odlin

27 Me. 341 | Me. | 1847

The opinion of the Court was drawn up by

Whitman C. J.

The land demanded was set off to the plaintiff by levy on execution as the property of Samuel Smith, as whose it had been attached on the original writ in the suit, to satisfy the judgment on which the execution had issued. The attachment bears date Jan. 20, 1836. Before that time Smith had taken a mortgage of the premises in fee, and had assigned it to one Hasey, who had assigned the same to the tenant; so that the tenant had, before the attachment, acquired a good title to the premises demanded, against Smith, he being estopped to dispute the title he had thus been the means of making to the tenant; and Smith’s privies in estate are also estopped. If he had, subsequent to these assignments, conveyed the premises to the plaintiff, he could not sustain a title, so acquired, against that of the tenant under the mortgage and assignments. The attachment and subsequent levy amount to nothing more than a statute mode of conveyance ’ from Smith to the plaintiff. Either mode of conveyance must be subject to all prior liens created by the grantor and regularly apparent of record.

The decision in the case of Pierce v. Taylor, 23 Maine R. 246, cited by the plaintiff’s counsel, as decisively in his favor, is very distinguishable from the case here. In that case Smith, the debtor, had simply taken a mortgage from Taylor, the defendant, who, so far as appeared of record, at the time the-attachment was made by the plaintiff', had no title. This did! not divest Smith of any title he had, as apparent of record, atf the time of the attachment, aside from that acquired under his: mortgage. If by accepting the mortgage Smith would be es-topped, as between him and Taylor, to dispute the title of the latter, still it was but an equitable estoppel, not arising from> any express language of the former, importing a grant or conveyance from him. For such language only, was Smith’s creditor bound to search the records in order to ascertain whether the title had passed out of him or not. He was not bound to look for the language of some third person, whose name he could have no previous knowledge of, to ascertain if he had conveyed to Smith in such a manner as to work an estoppel between him and Smith. Whereas if there were an express transfer, as in the case at bar, from Smith to a third person, and that apparent of record at the time the plaintiff made his attachment, he would be bound to notice it, and his levy could not defeat its operation. Plaintiff nonsuit.