Moore v. Kidder

As between Downing and these defendants the attachment was undoubtedly valid, and gave them a perfect lien for their claim then in suit. The plaintiff, however, claims that, as between her and the defendants, Harry Downing did not own the premises, and had no title or interest therein, and therefore that the defendants took nothing by their attachment, and consequently took nothing by their levy. The question is, whether, as between the parties to this suit, the premises are deemed to have been the estate of Harry Downing, liable to attachment for his debts; and I think the question must be answered in the affirmative.

It will not be denied that, if the officer had in his return set forth a specific attachment of these premises as the property of Harry Downing, such an attachment would have been good. But it is objected that the officer has returned that he attached all the real estate of Harry Downing in East Kingston; that, consequently, such an attachment would only hold such real estate as he then owned in that town; and, as he in fact did not own any, having previously conveyed to his brother, Ezra P., there was no real estate which the officer could or did attach.

By Gen. Stats., ch. 121, sec. 4, no deed of real estate "shall be valid to hold the same against any person but the grantor and his heirs only, unless recorded." The object of the statute is to give notice of the conveyance, and it has therefore been held in numerous cases, that, if a subsequent purchaser or creditor have notice of a prior conveyance, this is equivalent to a record. Stone v. Meserve, 13 N.H. 46, where it was held that a record of a mortgage of personal property, in the town where the mortgagee resides, is of no validity; and where it was also held, that a record of a mortgage, after an attachment or levy on the property mortgaged, cannot avail to defeat the creditor's title.

In Whittemore v. Bean, 6 N.H. 47, it was held, that if the grantor of an unrecorded deed of land, or his heir afterwards, for a valuable consideration convey the land to another purchaser, who has no notice of the unrecorded deed, the last conveyance will prevail against the first; and that the devisee of the grantor would stand on the same ground as his heir.

By statute, except as against the grantee and his heirs and those *Page 493 having notice of its existence, a deed takes effect only from the time of its being recorded. Hence it follows, that any attachment or return of an attachment that would be good against the grantor must be good against any one claiming under him by a subsequent deed, or by an unrecorded deed executed before the attachment, of which the attaching creditor had no notice. If an attachment made in the form of that made by these defendants would have been good against Downing if he had continued to own the land until his creditors levied their execution, I can see no reason or principle why they should be required to make it any different when they had no knowledge or means of ascertaining the existence of an unrecorded deed, especially when, from the continued occupation and possession of the land by Downing, they had every reason to suppose the title continued in him. The language of our statute is, that such unrecorded deed "shall not be valid to hold the land." A deed not valid is an invalid deed, or one without any vitality, and inoperative to pass the title as against all persons without notice of its existence.

The case of Earle v. Fiske, 103 Mass. 491, is directly in point. AMES, J., remarks, — "The title passes by the deed, and not by the registration. No seizin remains in the grantor, and he has literally nothing in the premises which he can claim for himself, transmit to his heir at law, or convey to any other person. But when the effect of the deed upon the rights of third persons, such as creditors or bona fide purchasers is to be considered, the law requires something more, namely, either actual notice, or the further formality of registration, which is constructive notice. It may not be very logical to say that after a man has literally parted with all his right and estate in a lot of land, there still remains in his hands an attachable and transferable interest in it, of exactly the same extent and value as if he had made no conveyance whatever. But for the protection of bona fide creditors and purchasers the rule has been established, that, although an unrecorded deed is binding upon the grantor, his heirs and devisees, and also upon all persons having actual notice of it, it is not valid and effectual as against any other persons. As to all such other persons, the unrecorded deed is a mere nullity. So far as they are concerned, it is no conveyance or transfer which the statute recognizes as binding on them, or as having any capacity adversely to affect their rights as purchasers or attaching creditors. As to them, the person who appears of record to be the owner is to be taken as the true and actual owner, and his apparent seizin is not divested or affected by any unknown and unrecorded deed that he may have made."

The form of the officer's return in this case is one that has been very generally adopted in this state for more than half a century, and probably since the earliest history of the state. It has become a settled rule of property, and it would be little less than disastrous to hold it insufficient, although a more definite description might often be desirable. In Taylor v. Mixter, 11 Pick. 341, a return by an officer, that "he had attached all the right and interest of the debtor in any *Page 494 lands in the town of E.," was held to constitute a valid attachment of any land coming within such general description. Although the return in Howard v. Daniels, 2 N.H. 137, was less general, yet the reasoning of the court supports the principle laid down in Taylor v. Mixter, where Howard v. Daniels is cited by SHAW, C. J. In Bryant v. Osgood, 52 N.H. 188, the officer returned that he "attached all the wood, hay, bark, and lumber, lands and tenements, in the town of Warren, in which the within named defendant had any right, title, interest, or estate." FOSTER, J., remarks, — "Probably an attachment of real estate, by leaving a copy expressed in such general terms, would be held sufficient, if the point were distinctly raised, on the ground that since the law provides for the registration of land titles, a reference to the county records would disclose the precise property referred to in the officer's return, and id certum est, c."

Usually such a general attachment would give a bona fide purchaser all the information, upon making an examination of the record of attachments in the town-clerk's office, that a more particular description would. I am of opinion that these defendants, by their attachment, acquired a valid lien upon the premises in dispute, not only as against Downing, but as against his grantees; and for that reason the plaintiff cannot maintain this action.

The plaintiff contended in the argument that the levy was bad, because it exceeded the lien acquired by the attachment. This point was not raised at the trial, and is not therefore before us, and the verdict cannot be set aside for that reason. State v. Rye, 35 N.H. 368; Boyce v. Cheshire R. R.,43 N.H. 627. An objection not stated at the trial is considered as waived.

As to the other questions raised in the case, I concur in the views expressed by my brother LADD.