3 Vt. 420 | Vt. | 1830
After argument, the opinion of the Court was pronounced by
The testimony offered by the defendant to show that the lands described in the return upon the execution against Farnsworth, under the levy of which the plaintiff claimed title, were not the lands which were in fact appraised upon the execution, went to contradict the officer’s return, and was properly t ejected. It is settled, that the return of an officer, levying an
The defendant, in order to show an elder title to the lands in question, derived through several persons from Farnsworth to himself, offered in evidence a writing, purporting to be a copy of a deed, duly acknowledged, from Farnsworth to one Hatch, with a receipt on the back of the writing signed by Farnsworth, acknowledging to have received a deed, of which the writing was a true copy, for the purpose of procuring the same to be recorded; which writing, with the receipt thereon, was recorded prior to the plaintiff’s attachment and levy. Though it is held, that where a party has expressly acknowledged the execution of a deed by a recital under his hand and seal, the existence of the deed may be proved by such recital, against the grantor, and all persons claiming by title derived from him subsequently, yet the writing which was offered in evidence in this case was not under seal, and being a mere parole acknowledgement or admission, the original deed was higher and better evidence. But admitting that the writing was admissible as secondary evidence of the execution and contents of the deed, upon the ground that the defendant was not a party to the deed, or in possession of it, and it was not in his power to produce it, yet the deed had never been recorded, nor was there any proof that the plaintiff.had notice of it. An unrecorded deed, though good against the grantor, his heirs, and strangers, is void against a subsequent purchaser or creditor, claiming under a right derived from the grantor, unless the purchaser or creditor had notice of the prior deed. The writing which was offer-, edin evidence was not entitled to be recorded, and the record of it, therefore, could not operate as notice to the plaintiff. If the record of a copy is not in law a record of the original deed, and is no evidence of title, it is a nullity, and cannot be good for the purpose of notice, or avail to any effect in law.
Judgement affirmed,
