The opinion of the Court, was drawn up by
Weston- C. J.The authorities, cited in this case’, prove very clearly, that a levy duly made and recorded, within the time prescribed by statute, has precedence over a prior levy, not recorded within three months, nor until after the registry of the second levy.This doctrine is not contested; but it is insisted, that if the second levying creditor has notice of the first levy, he cannot take advantage of the neglect of the creditor to cause the first levy to be recorded. Assuming this position to be correct, and such seems to be the bearing of the decisions, the case will turn upon the question of notice.
In the case of M’Mechan v. Griffing, 3 Pick. 149, Wilde J. who delivered the opinion of the Court, says, “ as to express notice, it has been uniformly held, that the proof must be clear and unequivocal.” And in commenting upon implied notice, he says, “ the principle is the same in both. The fact of notice must be proved by indubitable evidence ; either by direct evidence of the fact, or by proving other facts, from which it may be clearly infer*251red. It is not in such case sufficient that the inference is probable. It must be necessary and unquestionable.” For a full illustration of this principle, we refer to that opinion, which is elaborately drawn, and the authorities there cited.
The evidence of notice relied upon is, that the demandant, who was the second levying creditor, acted as an appraiser, when the firsUlevy was made. This would be sufficient, if it was necessarily deducible, from what was done within his knowledge, that the levy was perfected. But the creditor may waive the levy. He may not be satisfied with the appraisement, or may have other inducements for declining finally to accept the land. In Tobey v. Leonard, 15 Mass. R. 200, Parker C. J. says, “ the creditor may, and sometimes does decline having his levy recorded, not intending to take the land in satisfaction ; and this he is at liberty to do, lie may also receive satisfaction in money, or otherwise, from the debtor, before the levy is recorded, or other reasons may exist to induce him to waive the title,” The demandant, not finding the first levy recorded, within the time limited by law, might suppose it was not intended to be perfected. And in'our judgment, the notice proved, is not sufficiently strong and decisive, to defeat the priority, to which the demandant was entitled, by causing his levy to be first recorded.
Judgment for the demandant.