A re-hearing having been allowed, the following opinion was filed (upon the first re-hearing) at the June term, 1871:
Cole, J.This case presents a question of some importance in relation to the proper interpretation of the registry acts. A re-hearing was granted upon a point determined in the former opinion, where it was held that Paries must be protected under the recording acts, as it appeared from the evidence that he was a purchaser for a valuable consideration, without notice, either actual or constructive, of the assignment of the mortgages by the mortgagee, Blanchard, to Rice. The learned counsel for the respondent insists that he is not to be protected, for the reason that he failed to put his deed upon record before the assignment to Rice was recorded. This view of the law was strongly pressed upon our consideration on the former hearing, but was deemed unsatisfactory then, and we now think, after fuller *451examination and consideration, must be overruled. For, as was previously observed, it is very evident that when Parka took his conveyance from the fraudulent grantee, William H. Pierce, he had no notice of the assignment of the mortgages, and he purchased upon the faith and credit of the quit-claim deed containing a release of those mortgages which had been executed by Blanchard to his grantor. This original quit-claim deed was delivered to him, with the conveyance from William H. Pierce, and was placed upon record more than six months previous to the recording of the assignment. There was nothing then of record to inform him that the mortgages were still unpaid and held by some assignee; he had no means of learning that fact, owing to the neglect of the assignee to place the assignment upon record; and he parted with his money, under the full expectation that he was getting the property discharged from those incumbrances.
Under these circumstances, the substantial equity of the case would seem to be in favor of Parks, and require that his title should prevail. For, again, to re-state the facts in a few words, the case is simply this : Blanchard, the mortgagee, assigns the mortgages to Rice, who fails to record the assignment. Blanchard afterwards conveys the mortgaged property to the mortgagor, William H. Pierce, by a quit-claim deed, which contains a release of these mortgages. William H. Pierce then conveys the property to Parks, a purchaser in good faith, for a valuable consideration, who has no notice whatever that the mortgages were assigned by Blanchard to any one, and who had no means of ascertaining that fact, because the assignment was not recorded until some nine months thereafter, and some six months after the quit-claim deed and release were placed upon record. True, the assignment is recorded before Parks placed the deed to him upon record. But it is difficult to perceive how the default of Rice can be made good by this subsequent record, after Parks has parted with his money and purchased the property, supposing he was getting a good title. The record of the assign-*452meat in J-une, 1861, could be of no possible service to one who purchased the property in September, 1860. “ The object of the record is to give notice, and notice must always be too late after value has been paid and a deed executed.” 2 Leading cases in Equity, Hare & Wallace, note, page 182. Chief Justice Shaw in Flynt, Administratrix, v. Arnold, 2 Met., 619-623, states with great clearness and ability some of the practical consequences resulting from the view there taken of the registry acts of Massachusetts, as follows: “ If a prior conveyance is recorded at any time, however late, before a subsequent conveyance is made by the same grantor to a second grantee, the registration of the deed is conclusive legal notice to the second grantee of such prior conveyance; so, if the first conveyance is not put upon record before the second is execu ted, still, if the second grantor have actual notice of the prior deed, he takes subject to it. So, if the second deed is put on record before the first, if a Iona fide purchaser, without actual notice of the first conveyance, and before the same is put on record, take a conveyance of the second grantee, he takes a good and indefeasible estate as against the first grantee, because he takes an apparent valid title without actual or constructive notice of any prior conveyance. So any other person taking under such indefeasible conveyance derived from a purchaser of the second grantee without notice, would have a valid title. But if, before any such valid title is acquired by any one under such second grantee, the first deed is recorded — as registration is regarded as constructive notice of a conveyance to any one claiming under the second grantee — snch registration would be constructive notice of the evidence of such prior conveyance.” These remarks are quite pertinent to the questions we are considering.
The doctrine of constructive notice from the record of a prior deed, although not recorded until after the record of a subsequent conveyance, has been carried somewhat further by the courts of New York than in Massachusetts and some of the *453other states, but it is only necessary to again repeat that the principle of the New York decisions, is distinctly disapproved in Ely v. Wilcox. Indeed the whole reasoning and doctrine of the latter case — if I understand them aright — when applied to the facts before us, protect the title of Parks against the unrecorded assignment of the mortgages. But it is said in answer to this view, that as between the assignee Rice and Parks the purchaser from the fraudulent grantee of Blanchard, that the one who records first must have the priority, and that inasmuch as the assignment was actually recorded before the deed to Parks was placed upon record, the latter took the property subject to the mortgages, and this result it is claimed follows from the operation of section 25, chap. 86. This section, it is argued, where each is a purchaser in good faith, the equities being equal, gives the title to. the party whose deed is first recorded without regard to the person of whom the purchase is made. In the former opinion it was decided that this was not a sound interpretation of this section, or at all events we are disposed to give it a more limited construction. We followed mainly the decision of Raynor v. Wilson, where, as we understood, the opinion of the court bolds that a precisely similar section in the New York statute is not to be taken literally in favor of any subsequent purchaser of the same real estate, but applied to successive purchasers from the same seller. At least we did not suppose that it was the object or effect of this provision to so change the general principles of the recording act, as to postpone the title of Parks upon the facts disclosed in this case, to that of Rice, because be had not put his deed upon record before the assignment was recorded. Because when be purchased of William H. Pierce, the assignment was not on record, and be bad an apparent valid title, without any notice of that assignment. And, as observed, this assignment was not in fact recorded until about nine months after be took his conveyance, and six months after the recording of the quit-claim deed containing the release. Had Rice been diligent in placing the assignment on record, no *454loss could bave happened to any one. But in consequence of his default, the rights of a bona fide purchaser have intervened, which ought to be protected. And it seems to us that the clear equities of the case are in favor of the title acquired by Parks. We therefore adhere to the former opinion, without dwelling on the case longer.
By the Court — The judgment of the circuit court is reversed, and the same remanded for further proceedings.