When the case, involving the title to the property in question, was before us, upon a former occasion, (Wheaton v. Dyer, 15 Conn. R. 307.) it was supposed, by the parties, that Charles Dyer, from whom the present plaintiff derives title, had a legal and valid mortgage upon the property. Although the deed to him was executed subsequently to the deed to Levi Wheaton, yet as it was first recorded, it was conceded, that he had acquired the legal title. The question then was, whether that legal title ought to be set aside, by a court of chancery, in favour of L. Wheaton, the first mortgagee, who had acquired but a mere equitable title. We held, that upon the facts then presented to us, no sufficient cause was shown for such interference.
But it now appears, that Dyer’s deed is imperfect, having but one competent subscribing witness, whereas our statute requires the attestation of two such witnesses. Wheaton, by causing his deed to be recorded, before any legal conveyance was made to Dyer, has acquired the legal title, and Dyer has nothing but an equitable one. The case is therefore the reverse of what it was supposed to be, on the former occasion. The question is, whether the plaintiff has shown a sufficient cause to justify a court of chancery in setting aside the legal title of the first mortgagee.
*535Wheaton, by withholding his mortgage deed from record, exposed himself to the loss of his security, in case the property should, in the meantime, be conveyed to another. But in the absence of all fraud on his part, he would not suffer by this delay, provided he caused his deed to be recorded, and his title thereby perfected, before the property became legally vested in some other person. And this, it is now conceded, he has done.
But it is said, that he has been guilty of a fraud in keeping his deed from the records, as his object was to avoid the payment of taxes upon his debt. It is unnecessary to consider what effect his conduct would have upon the case, provided that fact had been found by the court below. But it is a sufficient answer to the plaintiff’s claim upon this subject, that no such fact is found. All that the case shows, is, that the mortgagor stated to the plaintiff’s agent, that such was the object of Wheaton, the first mortgagee—a mere declaration of the mortgagor, in the absence of Wheaton, and after the conveyance to him had been made. In the case of Barrett & ux. v. French & al. 1 Conn. R. 365. it is said to “have uniformly been decided, that the declarations of the grantor, when the grantee is not present, prior or subsequent to the deed, cannot be admitted in evidence to invalidate the deed.”
Again, it is said, that Levi Wheaton is estopped from denying the legality of the deed to Dyer, by reason of the proceedings in the former suit, wherein he had alleged in his bill such legality. But the present plaintiff in his bill states, that “the deed was not duly attested, in this, that one of the two subscribing witnesses to the same, was the wife of the mortgagor.” How then can Wheaton be estopped from asserting in his defence to the present suit, a fact, which the plaintiff has alleged in his bill to be true? If he could be, it would be a novel application of the doctrine of estoppel.
But further, if Wheaton can be estopped, by the proceedings in the former case, what necessity for a resort to a court of chancery? The plaintiff may proceed with the trial of his action at law, and if the defendant Wheaton sets up the defect in the deed to Dyer, the plaintiff may produce those proceedings. Upon the plaintiff’s own claim, therefore, we see no need of the interference of a court of chancery. His remedy, if he has one, is adequate at law.
*536Upon the whole, we are satisfied, that upon the facts, as they are now found and presented to us, the plaintiff is not entitled to the relief prayed for, as against Levi Wheaton, the first mortgagee; and our advice is, that the bill, as against him, should be dismissed.
In this opinion the other Judges concurred.Bill dismissed, as against L. Wheaton.