Houghton v. Bartholomew

Dewey, J.

The tenants insist that the demandant has failed to acquire a legal title in the demanded premises, by reason of his omission to record- the officer’s deed to him within three months after the sale of the equity of redemption.

If this was a mere question of the proper construction of Rev. Sts. c. 73, ■§> 38, taken as an isolated provision, it might be freely admitted that the reading of the section, urged upon ns by the tenants, would be the more literal and obvious one. But we are not at liberty thus to consider the provisions of this section, which is only a part of a system, one among numerous provisions in relation to the recording of deeds and other muniments of title to real estate, and all of which combined make up our registry law.

The question before us is really none other than a question upon our system of registration of title deeds, and, in deciding it, we must regard the course of decisions upon other portions of the registry law. These decisions have a very strong bearing upon the immediate question before us, as they were made in reference to statute provisions quite as direct and positive in their language as the section now under consideration.

The St. of 1783, c. 37, § 4, upon which the cases have more usually arisen, was direct and explicit, that deeds not recorded should only avail as against the grantor and his heirs. But it was early settled by judicial decisions, that this enactment was made only to secure bona fide purchasers, who should have acquired title by a subsequent deed without knowledge of the previous conveyance; that the object of the statute was effected where this knowledge was acquired through other sources than the registry; and that., where such knowledge was established by evidence, the want of registry was no objection to giving effect to the deed. The doctrine was, to quote the language of Parker, C. J. in the case of Priest v. Rice, 1 Pick. 168, that “ actual notice proved is, to the person affected by it, as useful, and ought to be attended with the same consequences, as public notice in the registry.” The principle has, through numerous decisions, which I forbear to cite, come to be well settled as to the general statute provision requiring deeds to be recorded, that if> the second grantee has notice, at the time of the taking his deed, of a prior unregistered deed, it is the same to him as if such deed had beer recorded.

A distinction was at one period suggested, and attempted to be maintained, between the cases of attaching creditors, and those claiming under a deed, and it was insisted that the former were not affected by notice of the existence of an unrecorded deed ; but this attempted distinction has been declared not to be sound, and is indeed wholly repudiated by this court. Priest v. Rice, 1 Pick. 164. Curtis v. Mundy, 3 Met. 405. Upon the question raised in the case before us, we have a strong analogous case in that of McLellan v. Whitney, 15 Mass. 137. It arose upon St. 1783, c, 57, § 2, requiring the recording of the levy of an execution upon real estate by appraisement. This statute, it is to be remembered, had provisions substantially similar to Rev. Sts. c. 73, § 38, now under consideration; both requiring the record of the levy within three months. It was there contended, as in the present case, that the recording of the levy within three months was a condition essential to the vesting of a-legal title in the creditor; but this court held otherwise, giving to this provision, which required the recording of a levy of execution in three months, the same construction which they had already given to St. 1783, c. 37, requiring the recording of deeds, and holding that, as to the former as well as the latter, the object of the registry was none other than to give notice to a subsequent purchaser or attaching creditor, and that it was not a prerequisite to the vesting of the title ; thus construing the registry laws in the spirit of the rule declared by the supreme court of the State of New York, in Jackson v. West, 10 Johns. 466, that “ the courts are to construe the registry act not so literally as to work injustice, but so liberally as to prevent the mischief and advance the remedy.”

If the revised statutes had merely reenacted, in totidem verbis, the Sts. of 1783, c. 37 and c. 57, the present question would hardly have arisen; as those statutes contained provisions equally stringent as those of § 38 of c. 73 of the Rev. Sts., and as all the reasons for giving effect to an unrecorded title, as against purchasers or attaching creditors having full knowledge of such deed or such levy of execution, apply quite as strongly to cases of grantees holding by purchase under a sheriff’s sale of an equity of redemption. The only real ground of argument for maintaining a distinction between the cases of omission to record • an ordinary deed or a levy by appraisement, and a levy by sale of an equity of redemption, is the fact, that in the revised statutes the legislature have, in direct terms, made provision with regard to ordinary deeds and levies on real estate by appraisement, that such want of record shall not render them invalid as against a purchaser or attaching creditor having actual knowledge of such unrecorded deed, or unrecorded levy of execution, (Rev. Sts. c. 59, <§> 28; c. 73, ^ 18;) but have omitted to make a corresponding provision as to the omission to record deeds given by the sheriff on the sale of an equity of redemption of real estate. From this circumstance it is argued, that we must apply a different rule in the latter case. To this course of reasoning I reply, in the first place, that the rule of law which gives effect to an unrecorded deed or unrecorded levy of execution, as against a purchaser or attaching creditor with notice, does not derive its force and effect from the provisions of the revised statutes above referred to. Without any such clause as is contained in these statutes, such unrecorded deeds and levies would have been equally valid as respects individuals having notice thereof. The introduction of these exceptions into the revised statutes has not, therefore, changed the law, nor given any new force and effect to unrecorded deeds or levies of execu tion. How it happened that these exceptions were introduced in the case of ordinary deeds and levies by appraisement, is quite apparent to my mind, and is satisfactorily accounted for by the well known fact, that in the revision of the statutes, the principle of adding to the former statute provisions a clause, confirmatory of the judicial constructions thereof, was adopted in numerous cases. As has been already stated, the court had fully recognized and adopted the doctrine, that the object of the registry act was satisfied by bringing home to the party objecting to the want of registry actual knowledge of the unrecorded deed or levy; and the legislature added to the registry act, by way of positive enactment, what had already become the law of the land by force of judicial decisions. The fact that the legislative enactment applies as well to levies of execution by appraisement of real estate as to ordinary deeds, and alike dispenses with the record in both cases where -knowledge of the act exists, is a strong legislative declaration that no distinction exists, as to necessity of the registry, between the cases of ordinary conveyances by deed, and those of title by levy of execution. In both, the omissi on to record may be supplied by showing actual knowledge by the subsequent purchaser, or attaching creditor. This seems to remove the objection to the title under an unrecorded levjq that it is a mere statute title, and that the party relying upon it must bring himself within all the requisitions of the statute.

The application of the rule, that knowledge supplies registry, clearly extends as well to attaching creditors as to grantees by deed. The case of McGregor v. Brown, 5 Pick. 170, seemed to advance a contrary opinion as to the case of two attaching creditors. But that case will not, perhaps, be found necessarily to conflict with the view now taken, inasmuch as it does not seem to present distinctly the fact of that actual notice which is the substitute for the record. But however the rule may have been as to the right of successive attaching creditors, or whatever doubts there may have formerly been whether an omission to record a levy of execution'within the time prescribed by the statute could be supplied by proof of actual notice on the part of one seeking to avoid the effect of the levy by reason of such omission to record it, the Rev. Sts. c. 73, $ 18, have sanctioned the application of the rule, that knowledge is a substitute for the record, in reference, at least, to one class of attaching creditors, viz. those who levy on real estate by appraisement.

The case before us, of a levy by sale of an equity of redemption, would seem to be one much stronger for the application of the rule, that knowledge of the levy and sale is a substitute for recording, than that of a levy by appraisement. In the latter case, the party who is acquiring the title by the levy is necessarily the creditor himself. But the purchaser of an equity of redemption is not necessarily the creditor; he may be an entire stranger. By the levy of the execution, and sale of the equity, the debt of the creditor is discharged, and the new party, the purchaser, may have no other connexion with the attachment than what arises from his being such purchaser, and holding his title under a sheriff’s deed. Of all cases arising under the registry law, that of a sheriff’s deed, upon a sale of an equity of redemption, would seem to be the last which requires a rigid construction of the registry law. Ordinary deeds are, in a good degree, private conveyances, and the transactions may be entirely unknown beyond the grantor and grantee. A levy of execution on real estate by appraisement is comparatively a private transaction; no public notice being given, and the proceeding being such as may take place remote from the public eye. But not so in the case of a sale of an equity of redemption, on execution, by an officer. Such sale cannot take place unless there shall have been a public notice, both by publishing in a newspaper, and by posting up notices in public places; and the sale is at public auction. Such, indeed, were the circumstances of publicity attending such sales, that it had come to be doubted whether any registry was necessary of the deed from the sheriff to the purchaser of the equity. It was this very doubt that furnished the leading object for this new enactment, contained in Rev. Sts. c. 73, <§> 38, requiring such deeds to be recorded in three months, and this with a view to the protection of a bona fide purchaser. It was therefore made the subject of a positive enactment. But the legislature, so far from intending to impose a more stringent or onerous duty on purchasers under such sheriff’s sale, as to recording their deeds, place them upon a more liberal footing than ordinary purchasers. In considering the effect to be given to <§> 38, we are to look at the state of the law as it existed in reference to registration; for every legislative enactment is to be taken and construed with reference to the well known principles of the common law applicable to the subject matter. Now, it had come to be a well settled rule of law, sanctioned by a uniform current of judicial decisions, that a party, having actual knowledge of the existence of an unrecorded deed, was estopped to set up the want of registry, and that an attempt to. defeat a conveyance, under such circumstances, was against good conscience, and a perversion of the great objects of the statute.

When the legislature enacted that deeds, given to the purchasers of equities of redemption, should be recorded within three months, they enacted the provision to be construed and enforced upon the principle, well known and long sanctioned, that registry laws were made to protect innocent parties, and not to protect fraudulent ones; and that actual notice was equally operative as the registry, as to those affected with such notice. We see no sufficient reason why it should not be thus construed, and governed by the principles that are applicable to the registry of other deeds and other levies of executions. Such a view of the matter secures symmetry in the law of registration, placing all these various deeds and levies upon the same footing as to the necessity of complying with the registry act, and the effect that is to be given to actual knowledge, as a substitute for such record.

A different view of this matter would lead to a most incongruous state of the law, in the matter of registration. A levy of execution upon real estate by appraisement, though required to be recorded in three months, would be held good if unrecorded, when the fact of such levy was known to a subsequent purchaser or attaching creditor; while, on the other hand, a purchaser, under a levy of execution and sheriff’s sale of an equity of redemption, who had omitted to record his deed, would be deprived of his estate, although he might be alike able to show actual knowledge, by the subsequent purchaser, of the existence of his deed. What possible reason can be assigned for the distinction in the two cases ? They are both cases of attachments, and both equally liable to the objection that it is a race of diligence between contending creditors. And the only difference that exists is one that is favorable to cases of purchasers at a sheriff’s sale, namely, that in this case the race of diligence has been run, the creditor satisfied, and a third party introduced, whose title deeds are as much in equity to be sustained against those who, with full knowledge of the title, attempt to set it aside for want of registry, as any other class of grantees.

We are satisfied that one and the same principle applies to these various titles, and that the omission to record a deed. given to the purchaser of an equity of redemption at a sheriff’s sale, will not necessarily render such conveyance invalid in law ; that as between such purchaser and one taking a deed subsequently from the debtor, or one making an original attachment or levy of execution, if such subsequent grantee or attaching creditor has actual knowledge of such unrecorded deed, it is equally operative upon him as if the same had been duly recorded.

A question similar in principle arose upon the St. 5 Anne, c. 18, <§> 4, which provides that no judgment shall affect or bind any lands situate in West Riding, but only from the time a memorial of such judgment shall be entered at the register office ; and it was held that the decisions under the Middlesex registry act, requiring deeds to be recorded, must apply equally to this statute, and that notice of the judgment was equivalent to the registry. Gosling's case, 3 Simons, 301.

The only further inquiry of a general character is, whether, when a title is set up under a second levy and sale of an equity of redemption, on an execution issued upon a judgment rendered in a suit where there had been an attachment subsisting before and at the time of the first levy and sale, the title under the first levy and deed, though not recorded within three months, may be sustained as against such second levy and sale. In the opinion of the court, it may be thus sustained, if the creditor in such second execution (he being also the purchaser of the equity of redemption) shall, at or before the time of making the sale on his execution, have actual knowledge of the prior levy and sale, and also of the further fact that the creditor in such execution, on which the first sale was made, had an attachment of such right in equity prior to that of the creditor in the second levy.

In the present case, the purchasers under the second levy are to be taken and considered as representing John Paige, the real creditor in interest in the second execution, and to whom the question of notice applies ; they being his assignees. And notice to said Paige at any time before the appointment of the said assignees, or notice to the said • assignees and purchasers at any time after their appointment and before the sale to them, will be sufficient notice to avoid the objection of wrant of registry.

The court are also of opinion that the facts stated by the parties are sufficient to authorize us to hold that the purchasers under the second sale had notice of the first levy and sale. But in the matter of notice of the prior attachment made by the creditor in the first levy, the facts are not so distinctly stated or admitted as to warrant us in assuming that such notice is conceded. Unless the fact on this last point is agreed by the parties, all the evidence bearing upon this point must be submitted to the jury. All facts, tending to show the agency and knowledge of Mr. Brooks acting as attorney to the second attaching creditor, are proper evidence to be submitted to the jury, to show knowledge in John Paige and his assignees, but not conclusive evidence; and such fact being established, the first levy and sale will be held good, and judgment will, in that case, be rendered for the demandant