52 Mass. 244 | Mass. | 1846
The parties in this case both claim their titles under Hiram Chapman; and the general question is, which party has the better title.
The tenant claims under a deed dated February 4th 1839, acknowledged the same day, but not recorded until the 10th of December 1842. The demandant claims under a levy of an execution, alleged to have been made on the 8th of November 1842, in pursuance of an attachment alleged to have been made on the 6th of December 1841.
Several objections were taken, at the trial, to the legality of the demandant’s levy; but they were all overruled,, and no exceptions were taken to the ruling of the court in this respect. An objection was also made to the validity of the attachment, on the ground that in the copy left at the clerk’s office there was a misdescription as to the day when the attachment was made; the attachment purporting to have been made on the 7th of December, and' in the clerk’s book it was stated to be on the 6th of December. But this objection is immaterial, as the tenant was a previous purchaser, and could not have been prejudiced by this slight mistake. The Rev. Sts. c. 90, § 28, provide that “no attachment of real estate, on mesne process, shall be valid against any subsequent attaching creditor, or against any person who shall afterwards purchase the same,” &c. “ unless the original writ or a copy thereof, and so much of the officer’s return thereon as relates to the attachment of such estate, shall be deposited in the office of the cleik of the court,” <fcc. This provision
The remaining objection to the demandant’s title is that on which the tenant principally relies. He contends, that at the time of the demandant’s attachment and the levy of his execution, the demandant had actual notice of the tenant’s prior title; and he offered evidence to prove that, before the attachment, he was in the open and visible possession of the demanded premises, - cultivating the same, and making improvements of a permanent character thereon; and he contended that this was competent and sufficient evidence to warrant the jury in finding that the demandant had actual notice of the tenant’s title. But the presiding judge was of a different opinion, and ruled accordingly. Whether the demandant had notice of the tenant’s title or not, was a question of fact for the jury to decide. But the competency and sufficiency of the evidence to prove the fact were within the province of the court to determine; and we are all of opinion that the ruling of the presiding judge on this point was well founded.
Before the Rev. Sts. c. 59, § 28, the open and notorious possession and improvement of real estate, by a party entering under a deed not registered, was, in general, sufficient evidence from which notice of such deed might be inferred or implied, so as to avoid a subsequent deed or attachment. But to have that effect, the evidence must have been such as to render the inference not merely probable, but necessary and unquestionable. M’Mechan v. Griffing, 3 Pick. 149. But since the Rev. Sts. c. 59, § 28, no implied or constructive notice of an unregistered deed can avoid a subsequent deed or attachment. The statute expressly provides that no conveyance of real estate shall be valid and effectual, against any person other than the grantor and his heirs and devisees, and persons having actual notice thereof, unless it is made by a deed recorded as the statute directs. Since this provision, no implied or constructive notice of an unregistered deed
The evidence of such possession and improvements is wholly insufficient to prove that the party in possession holds under a conveyance to him in fee simple. The evidence offered, therefore, would not have warranted the inference that the demandant had any notice or knowledge of the tenant’s title deed.
Judgment on the verdict