The plaintiff, in her bill, states, that her father Justus L. Bush, in his life-time, and Golden, one of the defendants, owned, as tenants in common, a certain mill, dam, and pond of water; that upon the death of her father, his share descended to her, as his only heir at law ; that Golden mortgaged his share to the other defendants, but has continued in possession, taking to himself the whole rents and profits. The bill, among other matters, prays for an account against Golden, a sale of the common property, and a division of the proceeds.
Thus far, no objection is made on the part of the defendants. The account has been taken by the committee, and the defendants are willing to have a decree made for the sale of the property.
The only question involved in the case, which is submitted for our advice, is, whether upon the facts stated in the bill and found by the committee, the plaintiff is entitled to have a way reserved to her use across the dam, and have the common property sold, subject to that reservation.
The material facts in relation to this part of the case, are these. In the year 1835, Bush, the father, and Golden, while they owned and possessed the property, as tenants in common, agreed to enlarge and widen the dam, principally for the purpose of furnishing the parties a good way between lands owned by them in severalty, and lying upon opposite sides of the stream over which the dam was built. The dam was accordingly enlarged, chiefly at the expense of Bush, and was used by him, during his life, as a way to and from his lands, and by the plaintiff since, in the same manner.
It does not appear, that there was any thing more than a mere parol agreement, made by the tenants in common, while both were in possession, as to an improvement of their com*601mon property, — an execution of that agreement, — and an usage in conformity with it, down to the present time.
All the defendants, except Golden, are mortgagees of his interest; and there is nothing in the case, showing that they had any notice of this agreement, when they took their deeds,, or acted otherwise than in good faith. The common property mortgaged to them, is much less in value than the amount of their debts; and the committee find, that the reservation of a way, would depress the price of the whole, two hundred dollars.
The question then is, has the plaintiff a right in equity to have this way set up, as against these mortgagees ? It is virtually conceded, by the plaintiff in her bill, that these mortgagees now have the legal title to Golden’s interest in the common property, that is, to one undivided moiety, free from any incum-brance whatever. The plaintiff, at most, has but an equitable title, which she is seeking to enforce against them, by the aid of a court of chancery. In other words, she seeks to have their legal title set aside in favour of hers of an equitable character only.
It has ever been the policy of our laws, to make every man’s title to his real estate, as far as practicable, appear of record. It is true, there may be cases where this cannot well be done, as where a title has been acquired by possession. But our statute requires all grants and deeds of lands, to be recorded upon the records of the town where the lands are situated, and unless so recorded, are not good and effectual to hold such lands against any person but the grantor or his heirs. Stat, 390, 1. (ed. 1838.)
Hence, if Bush had taken from Golden a grant of this right of way, executed with all the formalities required by law, it would not be effectual as against these mortgagees, unless recorded, or they had notice of such conveyance. Wheaton v. Dyer, 15 Conn. R. 307. Carter v. Champion, 8 Conn. R. 549. Here the plaintiff shows no record of any title to this way, and no knowledge on the part of these mortgagees of the existence of any claim to such way, when they received their mortgage deeds.
It is said, on the part of the plaintiff, that unless she can have the way, she must lose the expenses incurred in making it. This may be very true, and very hard ; but it does not *602prove her title. It may, for aught we can see, be as hard for - these mortgagees to have a portion of their security taken from them for the benefit of this plaintiff, as for her to lose the expenses incurred in enlarging the dam.
The plaintiff will be in no worse condition than she would be, had she purchased this right, taken a deed, paid her money, and then omitted to have caused her deed to be recorded, until the mortgagees had acquired their titles. The hardship of her case would not avail as against the mortgagees. Had Bush been desirous of securing this way to himself and his heir after him, it was his duty to have taken the requisite measures for that purpose. Not having done so, the loss is attributable to his negligence.
It is further said, that here has been an agreement executed by the parties, and consequently can be enforced in chancery. How this may be, as between the plaintiff and Golden, it is unnecessary to enquire. The question now is as to the rights of the mortgagees of Golden. They have made no contract with the plaintiff, or her father. They stand not as the parties to an executed agreement, but as purchasers without notice, having acquired the legal title.
Had they been notified of that agreement before they had taken their mortgages, then indeed they would be considered as standing in the place of Golden, and in order to determine their rights, it would be necessary to examine his. But they now stand before the court as hona fide purchasers of the legal title, for valuable consideration, without notice of any adverse Claim. And no rule is more firmly established, than that, as against such persons, a court of equity will not interfere in favour of one who has but an equitable title.
Again, it is said, that when the mortgages were executed, the parties were in possession of the way, using it for their private purposes ; and that this was sufficient to put the mortgagees upon enquiry. But that was upon common property, which each had a right to use at pleasure. Such occupation does not prove a state of title inconsistent with the record title. The mortgagees knew that the occupants were tenants in common, occupying their common property.
It is finally insisted, that if these mortgagees were purchasers without notice, they were bound to show it; that the burden of proof is upon them. Such, in our opinion, is not *603the construction to be given to our recording system. The rule is, that a subsequent deed, first recorded, will prevail - over a prior one subsequently recorded, unless the prior grantee can show knowledge in the other. The taking of the subsequent deed, with knowledge of the prior conveyance, is a fraud upon the first purchaser. This fraud will not be presumed, but must be shown, by the party seeking to avail himself of it. The burden of proof is upon him.
Upon the whole, then, as this plaintiff' shows at most but an equitable title, founded upon an agreement of which no record was ever made, and does not show that the mortgagees of Golden had knowledge of any such agreement, when the conveyances were made to them, she fails to establish this part of her claim against them. We accordingly advise the superior court, to decree a sale of the common property, without any reservation of way to the plaintiff.
In this opinion the other Judges concurred.Bill dismissed, as to reservation of way.