delivered the opinion of the Court at the ensuing term in Cumberland.
Several objections have been made to' the decisions and instructions of the Judge who sat in the trial of this cause. We will give them a distinct consideration. 1. It is said there is a fatal variance between the count and the proof disclosed on trial; —that the count charges the tenant as' the disseisor ; and it appears by the facts reported that he entered under a deed from Daniel Colé and that of course the count should have been in the 'per. Admitting this to be correct, the question is whether the objection is good under the general issue. And we apprehend it is not. The tenant by his plea admitted himself to be tenant of the freehold ; and as such has defended the cause ; claiming to hold the premises by title. In this view, the objection is merely a formal one ; it is founded on the principle that, though he may be liable to a judgment on the merits, still he is not liable to the demandant in the precise character and form of counting, which the record discloses. Such an objection is in its very nature in abatement, and so should have been pleaded. A tenant may have entered, claiming title under a deed not recorded. How is a demandant to know this, and frame his count accordingly, but from information of the tenant ? If he wishes to avail himself of the exception, he may plead it in abatement, and therein give the demandant a better writ, by stating how and in what character he entered. Every principle of policy and justice requires an adherence to this course of proceeding, to prevent that delay and expense which might be the consequence of permitting a tenant to lie by and conceal this objection, until he had found all other grounds of defence fail him ; and then by means of it, surprise and nonsuit a demandant. But we need not rely on mere reasoning. The law appears settled upon this point. Lord Cofee, speaking of the writ of entry in the quibus, in the per, in the per and cm, and in the post, says, ‘These are called degrees, which are to be observed ; or else the writ is abatable. See Co. Lit. 238. b. Rast. 249 a. Booth 179, and Stearns on real actions 173. This objection, therefore, cannot be sustained. 2. The second *25is that the demandant’s title deed from Daniel Cole was never delivered, and so never bad any legal operation. The report states £tthat on a certain reference in 1809, between said Porter and £< Daniel Cols, said deed was left with the referees on the express condition only that it should be delivered to said Porter if ,;i the report of the referees was accepted and became a settle-u mewt of all demands between them.” But on Porter’s objection it was set aside. However, prior to its rejection, “ one of the Cí referees delivered said deed to said Porter, in the presence of “ said Cok.” It is evident that the above condition was annexed for Cole’s benefit and therefore he might at his pleasure waive it, and assent, to the delivery of the deed before performance of this condition ; and upon such a delivery it would at once become the deed of Cole. At the time the deed was so handed to the demandant by the referee, Cole must have known that the report was not, and could not have been accepted. Under such circumstances his presence and silence may well be considered as his assent, in the absence of all explanatory proof and evidence of improper conduct on the part of Porter in obtaining it. It may be supposed that he anticipated no objection; and thus assented to a delivery of the deed before acceptance of the report. If such was the fact, he cannot now recall his assent, and destroy the efficacy of his own deed, because he reposed his confidence unwisely and was deceived.
But without placing the decision of the cause merely on this ground, we think the after transactions disclosed in the report clearly shew the correctness of the judge’s instructions to the jury, as to the operation of Cole’s action and recovery of judgment against Porter for the price of the very day in the saw-mill conveyed by said deed ; and payment of that judgment. There is nothing mysterious in the law on this subject, nor any thing magical in the formal delivery of a deed from the hand of the grantor to the hand of the grantee. If, without any form or ceremony, it reaches the possession of the grantee by the consent of the grantor. It is sufficient for all legal purposes. So, if the grantee takes the deed without the consent of the grantor, lo-day, and to-morrow he discovers the fact, and then informs the gra.fr *26tee that he may retain it to his own use, we should be sorry to believe that the law could not and would not sanction the transaction as a good and effectual delivery of the deed. We are all of opinion that as Cole, by the charges in his account, relating to the day in the mill, considered it as sold by him to Porter, and as he recovered the price of him, he thereby assented to consider the deed as lawfully in the hands and possession of Porter, and as having the operation of a legal conveyance of the property therein described. It is true that the counsel for the tenant has objected to the admission in evidence of a copy of the record of the above suit and judgment, but such an objection cannot be sustained. Parol proof would not have been admitted,.to establish these facts; nothing short of the record was proper; it was admissible, though not conclusive. It is not a case within the principle of res inter alios acta. A similar objection was made and overruled in Henderson vs. Seavy 2 Greenl. 139.
The last objection to the verdict is that the deed from Daniel Cole to the tenant, though executed long after that from said Cole to the demandant, was registered before it, and that therefore the better title to the demanded premises was in the tenant; but the jury have decided that the tenant had knowledge of Porter's conveyance from Daniel Cole, before he received his own deed from him; and therefore the demandant’s title deed has the priority, unless the cases relied on by the counsel for the tenant have established principles which require us to draw a different conclusion. It is contended that the principle of the decision in Farnsworth v. Child 4 Mass. 637 is applicable to this. In that case the second purchaser, two years before he received his deed, had read the deed from the same grantor to the demandant; and the court decided that after so long an interval, the tenant might well presume that there had been a reconveyance ; and that in consequence of that, the orginal grantor had always remained in possession; that is, the court considered that the legal effect of notice two years before, had ceased, for the reasons mentioned. There the grantor’s continued possession was notorious and uninterrupted ; but in the case before us, the possession of one day in a saw-mill is of such a peculiar character as to *27exhibit to third persons no distinct indicia ; such is the nature of the property and the mode of its use and enjoyment. Besides, it appears that the demandant’s possession under his deed was not interrupted till May 1819, when Daniel Cole took possession of said day in the mill, and kept it till he sold the same to the tenant ; who neglected also to register his deed for nearly five years ; though he complains of Porter for his neglect of a similar nature. But though the demandant’s deed was not registered when the tenant received his deed, yet the jury have found that in the June preceding its date, the tenant was distinctly informed by Staples that the demandant had a deed of the said day in the mill of Daniel Cole, and had paid him for it, and the tenant ivas advised not to get into any difficulty about it. The law requires no particular mode of notice. In Connecticut v. Bradish, Jackson J. says, “ a person who takes a conveyance of “land, with knowledge, that the grantor had previously convey- “ ed it to another, cannot hold it against the first purchaser.”— So in Trull v. Bigelow 16 Mass. 418. Parker C. J. says, “ a “second purchaser shall not setup a title under a registered “ deed, against the first purchaser, whose deed was not registered, if he had knowledge of the prior conveyance.” To this point also see Davis v. Blunt 6 Mass. 487, Prescott v. Heard 10 Mass. 60. The case from Vesey differs from this in several circumstances : it was a decision in chancery: whereas the numerous decisions in the court of Massachusetts have settled the principles of law upon the subject ; and those principles should he our guide. The great object is to prevent the success of fraud. No reasons appear in the case why the two deeds in question remained so many years unregistered ; if one had any personal reasons for the omission, so might the other have had. We are not to impute improper motives to either. The jury have found, that, though Porter’s deed was not registered, when the tenant received his deed ; still that it was known to him to exist; and that Porter had paid for the property conveyed by that deed ; and this knowledge being distinctly proved, the legal consequence is that the demandant’s title is better than the tenant’s and therefore there must be
Judgment on the rerclid