23 Me. 165 | Me. | 1843
The opinion of the Court was delivered at the October Term, 1843, as drawn up by
It appears from the agreed statement, that John Bourne on the 21st of February, 1835, conveyed the
It was decided in Crosby v. Allyn, 5 Greenl. 458, that an attachment of all the debtor’s right, title and interest to real estate in Belfast and Thorndike, was valid. In Whitaker v. Sumner, 9 Pick. 310, the officer returned, “ I attach all the right, title and interest in and to a certain piece or parcel of land with the buildings thereon situate in Columbia street at the southerly part of Boston ; and one piece of land and the buildings thereon standing being situate in' Pleasant street in said Boston, which the within named Benjamin Huntington has to the estates before mentioned.” And the Court say, “ the return of the attachment on the plaintiff’s writ against Huntington has qs much certainty as returns in general of attachments on mesne process”; and it was decided to be good. In Taylor v. Mixter, 11 Pick. 341, the return was, “I have attached ail the right, title and interest, which the within named Ruggles has to his homestead farm, on which he now dwells, together with all the land thereto belonging lying in Enfield in said county. Also all the right and interest, which said Ruggles has to any lands lying in Enfield aforesaid.” It was decided to be a valid attachment of any other lands in Enfield, which might not be a part of the farm. These cases sufficiently prove, that an attachment is good, though made in
And it is contended, that such language is not effectual to create an attachment of the estate, when the debtor has conveyed his title to another person, although such conveyance has not been recorded. The case of Adams v. Cuddy, 13 Pick. 460, is relied upon as exhibiting a close analogy to the present case. It was in that case decided, when the owner of land in Boston had conveyed it to another person, describing it by metes and bounds, and subsequently executed a second deed conveying “all the right and title to the land I have in Boston,” which was recorded before the first; that the land conveyed by the first was not within the description of the estate conveyed in the second deed, and so did not pass to the second grantee. There could be no doubt of the intention of the grantor in making the second deed. The first was effectual against him, and he could not be presumed to intend to commit a fraud upon one of his two grantees by conveying the land a second time. And there was nothing in the deed to destroy the effect of such a presumption. But there is no such presumption of law operating against a creditor or an officer. They are not placed in a similar position; and the law' permits them to avail themselves of the neglect of a grantee to record his deed without imputing to them any fraudulent design. And there is no similar intention to be discovered in such grantor and the officer or creditor. Does the offi
It is next contended, that the record of the deed from Clark to the defendant, made before the attachment, gave notice of the conveyance from Greeley to Clark. But the fact, that Clark had conveyed the premises to the defendant, would not afford one, who wished to purchase them of Greeley, any satisfactory evidence, that Clark purchased of Greeley or had a right to convey to the defendant. The record cannot be regarded as giving notice of any facts not stated in it, or not to be expected in the ordinary course of business to be found in it. In the case of Bates v. Norcross, 14 Pick. 231, it was decided, that the record of a conveyance is only notice to after purchasers under the same grantor.
It is said also, that the defendant by proving the execution and record of his deed performed all which the statute required of him, and that he therefore obtained a perfect title. And he did do all required of him to secure to himself all the title, which his grantor could convey. But that did not relieve him, if he would be careful to obtain a perfect title, from the necessity of making an examination into the title of his grantor. Again, it is said, that the title vested in Clark
Judgment for the plaintiff.