The opinion of the Court was prepared by
Shepley J.It appears, that Brown, who purchased of Bussey, reconveyed to him on the same day in mortgage, and on a subsequent day made a second mortgage of the premises to Emmons. Both these mortgages were recorded on the same day, there being no indication of the hour of the day, and nothing upon the record to show, that one was received before the other, unless it can be inferred from the fact, that one appears to have been recorded on an earlier page of the book than the other. It is the date of the reception and record, and not the order in which the entry is made, that is to be relied upon as giving notice of priority. The record is the instrument of notice to subsequent purchasers of the state of the title ; and to permit it in any manner to be affected by parol or extraneous evidence would not only destroy its value for that purpose, but would convert it into an instrument for deception., It would be dangerous to the rights of all subsequent purchasers, and contrary to the established rules of .evidence to admit any of the testimony offered to explain or vary the record ; and it must all be regarded as out of the agreed statement of facts; and the decision of this point in the case must be made from the information to be derived from the record alone.
*396By the mortgage to Bussey, the estate passed, and did not remain in the grantor until the deed was recorded. Marshall v. Fiske, 6 Mass. R. 31. This title may be defeated by a subsequent conveyance first recorded. But to have this effect the record should be first, not simultaneous. The record of both the mortgages must in this case be regarded as made at the same time. So far as it respects the record their rights are equal, and the title which passed'by the first deed is not defeated by an equality, but by. a superiority of right in the record. A stranger to the title wishing to purchase and applying to the proper source for information finds the owner has made two conveyances to different persons one before the other, and that both were recorded' at the. same time; -how can he justly conclude, that the title by the first -conveyance has been defeated, when the second purchaser has not in any why acquired a superiority of right ? Judge Trowbridge says, if “ the last deed is recorded before the first the estate will pass to the second purchaser.” 3 Mass. R. 531. Mr. Justice Jackson, in delivering the opinion of the Court, in the case of State of Connecticut v. Bradish, 14 Mass. R. 300, says, “ but if the second purchaser procures his deed to be recorded before the other, and then sells the land bona fide, and for a valuable consideration to a person wholly ignorant of those circumstances, the latter will hold, the land against the first purchaser.”
The demandant failing to shew, that the title by the first mortgage was defeated, can recover only by assuming the position óf a second mortgagee, and shewing that the debt, secured by-the first mortgage has been paid, or that the tenant holds it in such a manner, that-he cannot set it up against him. The first mortgage cannot be regarded as paid or merged ; .for it is agreed, that it was assigned to the tenant and Griffin, and that it was given to secure certain notes, “ which were produced by the tenant overdue at the commencement of this suit and unpaid.” The tenant derives his title by 3-conveyance from Brown to Bradbury arid Griffin, and from Griffin, to • Bradbury, and from the administrator of Bradbury to himself. ' The demandant contends, that Bradbury and Griffin pri the day- of their purchase from Brown mortgaged the premises to him to secure the payment of the notes given by him to Bussey and to Emmons. Such a deed appears to have been signed, *397sealed and acknowledged by them. Tho only testimony to prove it to have been delivered and to have taken effect as their deed is, that Mr. Poor, who was attorney for the administrator of Bradbury, “ first found this paper after tho commencement of this suit among the papers of Bradbury’s administrator in the office of Mc-Gaw, Allen Poor.” It is said, that the delivery must be inferred from the delivery of the deed from Brown to them, both being parts of the same transaction. If both had taken effect, they should be construed together as designed to effect one object; but it may be, that after the deeds were prepared and signed, another mode of securing or paying the consideration of their purchase was substituted, and that it was not intended to be delivered. And the absence of all evidence that Brown ever had possession of it, or that it has been in the possession or control of any one but one of the grantors and his legal representative, with the fact, that it was found among the papers of that one after his death, raises a presumption, that such must have been the fact. The possession and production of a deed by the grantee is prima facie evidence of its having been delivered ; and for like reasons in the absence of all contradictory testimony the presumption arises, when found in the possession and produced by the grantor, that it has not been delivered. Upon the testimony in this case, although the fact may be otherwise, that mortgage cannot be considered as a valid deed. The tenant being in possession under a prior mortgage not paid, and so far as now appears not being under any legal obligation to pay the mortgage held by the demandant, may resist his entry.
Plaintiff nonsuit.