Shaw, C. J.
The only question in this case is, whether this complaint for flowing is rightly brought against Charles Andrews, as owner. Rev. Sts. c. 116, § 6.
The respondent insists that he was not owner, but only a mortgagee not in possession, because the deed, which he had taken of Wood, in November, 1849, was accompanied by a bond of defeasance, which made it in law a mortgage. But the answer, and we think it decisive, is, that the bond of defeasance was not registered, until after the complainant’s suit
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was brought, and by statute was wholly inoperative and void, as a defeasance, against any person but the maker and his heirs or devisees, or persons having actual notice of such defeasance. Rev. Sts. c. 59, § 27. The continued possession by the grantor is no evidence of notice of the defeasance. Newhall v. Pierce, 5 Pick. 450; Newhall v. Burt, 7 Pick. 157.
Judgment for the plaintiff.