19 Me. 167 | Me. | 1841
The opinion of the Court was delivered by
This being an ad ion of trespass against the officer who attached upon a writ the property in question, which had been previously mortgaged and delivered to the plaintiff, and there being no fraud alleged on either sitio m have existed, it is a dispute between two bona fide creditors of the same debtor, each asserting a right to hold the property.
The defendant, representing one creditor, contends that the debtor had not so divested himself of the property try his mortgage to the plaintiff as to allow him to maintain this action, inasmuch as the entire mortgage had not been recorded before
Did then the notice given to the defendant and the attaching creditor, before the attachment, supersede the necessity of recording the whole mortgage and schedule ? It is urged that decisions in analogous cases, put at rest this question in favor of the plaintiff. It is the settled law of the land, that notice to a party of a conveyance of real estate, made before he claims to have derived rights by a second deed or an attachment, is tantamount to an acknowledgement and registry. So if a purchaser enter under his deed not recorded, and while he is in the actual and open possession, it is such presumptive evidence of the conveyance, that he shall hold against the second purchaser, although the deed of the latter shall be first recorded — for the conveyance to the second purchaser is fraudulent. Marshall v. Fisk, 6 Mass. R. 30; Worsely & al. v. Mattos & al. 1 Bur. 474.
The language of the statute requiring the acknowledgement and registry of deeds of real estate, is equally strong and full with that which requires the recording of mortgages of personal property; and this requirement in the former case is not dispensed with by the courts. When the legislature have declared what
It is again insisted, that the schedule being annexed to the mortgage, the entry with the town clerk was alone all that the statute required. If the mortgage and schedule were left with the town clerk, and duly entered by him, and both were remaining in his office unrecorded, it might have been sufficient, for the originals of both could have been seen and examined, and were all which was in the office indicative of the plaintiff’s claim; but when it appeared that the town clerk had made up his record, it was that only which the law treats as the evidence required. When a party interested found the mortgage without the schedule extended upon the record, he is not presumed to be advertised, from that circumstance, that the schedule existed at that time, and was to be found in the office — much less to be apprized of its contents, although it might have still remained there ; which, however, does not appear.
The exceptions are overruled.