
    Anonymous. 
    
    
      1770.
    
    While a Grantee of Land is in open Possession thereof under his Deed, Nothing passes by a subsequent Deed by the Grantor to a third Person, although recorded before the first.
    Land, of which the Grantee is in open Possession under an unrecorded Deed, is not liable to Attachment by the Creditors of the Grantor.
    
      
       The following opinion is without title, and occurs in the MS. between the memoranda at August Term 1769, ante, p. 316, and some unfinished notes of a case in Middlesex at October Term, 1771. In the case of Fowle v. Richardson, October Term 1770, in which the reporter was counsel for the defendant, this point was raised and decided as above. See Judge Trowbridge’s reading on the provincial registry act, in the supplement to 3 Mass. 579. We should have supposed it probable that the opinion here copied into Quincy’s book was that of Judge Trowbridge in the case referred to, but that the facts do not correspond : the land in Fowle v. Richardson being situated in Woburn, and the consideration in the deeds being also different. Whether these discrepancies can be accounted for on the supposition that the opinion was written out some time after the argument, and without the papers or record for reference, we leave the reader to judge.
    
   SEISED in Fee of Land in Cambridge, by his Deed, in Consideration of £50, bargains and sells it to B., who enters and improves the Land as his own for several Years; and, while he is fo possessed thereof A., for £50 more, paid by C., by another Deed, bargains and sells ye Land to him, acknowledges the Deed, and it is recorded before the first; after which the first Deed is recorded, — whereupon these Questions arise:

1. If, by ye 2d Deed, ye Land, or any Estate in it passed to C.

2. If the Land, at y° Time of ye making y® 2d Deed, might have been lawfully taken in Execution by a Creditor of A. for Satisfaction of his Debt.

In Order to determine these Questions aright, it will be necessary to consider not only y® Prov. Law 9 W. 3, 8, but how y® Law flood when that Ad was made.

The Statute of 27 H. 8, 10, commonly called y® Statute of Ufes, after reciting in y® Preamble, that “ by y® common Laws of y® Realm, Lands, “ Tenements and Hereditaments, be not devisable “ by Testament, nor ought to be transferred from “ one to another, but by solemn Livery of Seifin, “ Matter of Record, Writing sufficient made bona Fide without Covin or Fraud,” enadts “ that when “ any Person shall be seised of Land,” &c. “ to the “ Use, Confidence or Trust of any other Person or “ Body Politic, the Person, or Corporations intitled “to the Use in Fee Simple, Fee Tail, for Life or “ Years, or otherwife, shall from thenceforth Hand “ and be seised or possessed of ye Land, &c. of and “ in y® like Eilates as they have in the Use, Trust, “ or Confidence i and that the Estate of y® Person “ fo seised to Uses shall be deemed to be in him or “ them that have y® Use, in such Quality, Manner, “Form and Condition, as they had before in y® “ Ufe.”

At common Law, a Bargain and Sale was a real Contract, whereby y® Bargainor, for a pecuniary Consideration, bargained and fold, or rather contracted to bargain the Land to y® Bargainee, and became, by such Bargain, a Trustee for, or seised to the Use of y® Bargainee, and the above Statute of Uses compleated y® Purchase; thus, as y® Bargain veiled y® Use, y® Statute veiled y® Possession in him ye had y® Use, fo foon as it arose, and thereby y® Cestuy que Use became compleat Owner of y® Land, in Law as in Equity. 2 Bla. 338.

But, to prevent clandestine Conveyances of Freeholds, y® Statute of 27 H. 8, 16, commonly called y® Statute of Inrollment, was made, whereby it is enacted, that no Land, &c. shall pass from one to another, whereby any Estate of Inheritance or Freehold shall be made or take Effect, or any Use thereof be made, by Reason only of any Bargain and Sale, except it be made by Writing indented, sealed, and inrolled in one of y® Courts of Westminster or in y® County or Counties where y® Land lies, before the Custos Rotulorum, &c., within fix Months after the Date of y® Indenture.

All Conveyances made by a Bankrupt of his Land, &c. are, by the Statute of Eliz. & James, made void, and y® Commissioners are expressly empowered to sell and convey y® same by Deed indented and inrolled in one of y® Courts of Record, although they may have been conveyed by y® Bankrupt to another; and such Conveyances by y® Commissioners are made good and effectual in Law. But no Time is limited for the inrolling y® Deed.

In 1641, the Massachusetts Colony made an Act, that no Mortgage, Bargain, Sale or Grant made of any Houses or Lands, Rents or other Hereditaments, where y® Grantor remained in Possession of y® Lands, should be of any Force against any other Person, except y® Grantor or his Heirs, unless y® same be acknowledged before some Magistrate and recorded by ye Clerk of ye County Court where y® Land lies. Old Colony Law Book, 33. ( ) And in 1652 they made another Law, that no Sale or Alienation of Houses and Land should be held good, except it was done by Deed, and Possession delivered upon Part in y® Name of y® Whole, unless ye Deed be acknowledged and recorded according to Law. Idem, 32. () No Time is limited by either of ye Acts, for recording the Deed.

By y® Province Law 9 W. 3, 8, () it is enacted, that all Deeds or Conveyances of any Houses or Lands, signed and sealed by y® Party granting y® same having good and lawfull Right and Authority thereto, and acknowledged by y® Grantor, before a Justice of y® Peace, and recorded at Length in y® County where y® Lands lie, shall be valid to pass y® same, without any other Act or Ceremony in the Law whatsoever. And, that, after three Months, no Bargain, Sale, Mortgage or other Conveyance of Houses or Lands, made and executed in the Province, shall be good and effectual in Law to hold such Houses or Lands against any other Person but y® Grantor and his Heirs only, unleis y® Deed thereof be fo acknowledged and recorded; and y® Adi requires y® Register to note y® Time when y® Deed is received by him into y® Office, and y* y® Record shall bear y® Date; but no Time is limited for recording y® Deed. This Adi and the Old Colony Law also empowers y® Grantee to compell y® Grantor to acknowledge y® Deed; and this Adi provides that y® Vendee, by filing a Copy of y® Deed proved in y° Regifter’s Office, shall thereby secure his Title in ye mean Time, and that it shall be accounted sufficient Caution against purchasing y8 Estate in y® Deed granted, and there is a Clause in ye Old Colony Law of the like Import.

Upon y® Whole, it is observable, that there is a material Difference between y6 Statute of Inrollment and y® Statute of Bankrupts, as to Time of inrolling y® Deed; y® latter limiting no Time, but y® former making it absolutely necessary to be done within fix Months from y® Date of y® Deed; else no Estate passes or Use arises by y® Deed. If y® Indenture of Bargain and Sale be such as would have raised a Use at common Law, and is inrolled within y® six Months, y® Inrollment has such a Relation to y® Deed, as that y® Land passes from y® Execution of y® Deed, not by Force of y® Statute of Inrollment, but by Force of y® Deed, that raises y® Use to y® Bargainee, so soon as it is made, and the Statute of Uses, that veils y® Possession so soon as y® Use arises. Hob. 136. Cro. Ja. 408, Dimmock’s Case. 2 Jones, 196, Ferry v. Bowers.

Upon a Question, whether y® Vendee of y® Commissioners on y® Statutes of Bankrupts, of Lands, by Deed indented, could maintain, by his Lessee, an Ejectment before Inrollment of y® Deed, though it was inrolled after Action brought, it was held by y® King’s Bench, that he could not, because y® Conveyance must be by Deed indented and inrolled, and that it would be very inconvenient and dangerous to admit of Relation, no Time being prefixed for y® Inrollment, which might be 7 or 20 Years or more after y® Execution of y® Deed. 2 Jones, 196, and 1 Vent. 360, Perry v. Bowers.

Whether y® Makers of ye Old Colony Law or y° Province Law knew of these Determinations is not certain, but it is highly probable some of them did, and, to avoid y® Inconveniences that might attend a Relation, they thought it belt to prefix no Time for recording y® Deed, and, for that Reason, among others, did not do it: But, instead of it, the Province Law requires the Register to note y® Time when y® Deed is received by him into y® Office, and that y® Record shall have that Date; which, to be sure, is altogether vain, if the Recording is to have y® like Relation to y® Execution of y® Deed, as y® Inrollment within six Months has; but is necessary, where y® Estate is not to pass, to every Purpose, untill y® Deed was recorded : and, was it not for y® Exception in y® restrictive Clause of y® Province Law, as well as y® Old Colony Law, of “ y® Grantor and his Heirs,” there would be y® same Reason for y® Estate’s not being adjudged to pass here in any Case or to any Purpose, untill y® Deed is recorded, as there is for its not doing so on Sales made by y® Commissioners of y® Bankrupt Estates.

But, although y® Estate doth not pass, here, fo as to avoid all mesne Conveyances, untill y® Deed is recorded, it doth not thence follow, that it doth not pass before to some particular Purposes, and yet not to others, — as, in all fraudulent Conveyances, y® Estate passes from y® Grantor to y® Grantee, although ye Deed be void as to Creditors: So, here, if y® Deed be such as would have raised a Use at Common Law, it veils y® Use in y® Vendee upon y® Execution of y® Deed, and y® Statute of Use veils y® Possession in him that has y® Use, so soon as it arises, whereby y® Purchase is compleat as between y® Parties, though not with Regard to others. This is what is meant and intended by y® Deed’s not being good and effectual to hold y® Estate against any other Person, except y® Grantor and his Heirs, unless it be recorded.

The Vendee cannot, with any Propriety, be said to hold y® Estate, until he has it; the Estate don’t remain in y® Vendor untill y® Deed is recorded: The Grantor, between the Execution and recording y® Deed, has no Right of Entry into y® Land, nor can he recover it by Action, nor will it descend to his Heirs, y® Deed being effectual in Law, without recording, to hold y® Land against y° Grantor or his Heirs. But, on the other Hand, if, upon y® Delivery of y® Deed, y® Grantee enters into y® Land, as he has a Right to do, he may convey it, and, if he doth not, but dies seised of y® Land, it will descend to his Heirs, although y® Deed be not recorded ; which would not be the Case if y® Estate never vested in him; for he could not convey that which he had not; and very great Part of y® People of y® Province hold their Estates by such Titles.

If, upon y® Delivery of y® Deed, y® Grantee enters, holds and improves y® Land as his own, while he is fo possessed thereof y® Grantor cannot, by a second Deed, convey ye Land to another; for, although y® second Deed should be recorded before y® first, yet neither y° Land nor any Estate in it will pass to y® second Bargainee, because no Use would at Common Law have arisen by such Deed. Lord Coke, in his 2 Inst. 673, says, y® Statute of Inrollment is to be intended of lawfull and effectual Bargains and Sales, such as would have raised an Use at Common Law; and doth restrain y® Execution of them only that would be of Effect, if inrolled in six Months.

That Rule holds good here. The second Bargain and Sale cannot be better than it would have been, had there not been a first. And “ that no Man can, by Deed, convey Land to another, which a third Person is in Possession of, claiming it as his own” is a Maxim of y® Common Law which is by no Means altered by y® Province Law. That rather confirms and establishes y® Rule : For it enables no other Persons to convey Land by Deed acknowledged and recorded, but such as “have good and lawfull Right and Authority so to do.” And, though this Clause, when taken together with y® restrictive Clauses in y® Ad, must be construed to extend to such Persons as have an apparent Right and Authority to convey, yet that don’t destroy, but establishes y® Rule of y® Common Law; since no Man has even an apparent Right to convey Land to another, that a third Person is in Possession of, claiming it as his own.

Blackstone says, a Lease for Years gives y° Lessee a Right to enter, and when he enters, he is then, and not before, compleat Tenant for Years.— That such Entry serves y® Purpose of Notoriety, as well as Livery of Seisin from y® Grantor would have done. 2 Bla. 314. If fo, surely y® Entry of y® Bargainee, having a Deed which not only gives him a Right of Entry into y® Land, but veils y® Fee in him, to certain Purposes at least, must alike serve y® Purpose of Notoriety. The Lease is not inrolled, any more than y® Deed is recorded, the former may be as secret as y® latter; and y® Entry and Occupancy, which is alike in both, equally serve y® Purpose of Notoriety. The Occupant, in both Cases, is prima Facie supposed to be the Owner of y® Land, and, upon Inquiry, will be found fo. No fair Purchaser, in such Cases, is in Danger of being defrauded, if he uses y® Caution he ought to do. The Design of y® Province Law, as well as y® Statute of Inrollment, is to prevent fair Purchasers being defrauded and injured.

The restrictive Clause in y® Old Colony Law is expressly confined to Deeds made by a Grantor remaining in Possession after y® Grant, and y® Deed not recorded. A second Conveyance, in such Case, ought to take Place, because y® Grantor then was y® apparent Owner of y® Land, and an honest, fair Purchaser ought reasonably suppose him to be fo.

The first Deed may be deemed fraudulent upon y® same Principles y* a Bill of Sale of Goods is, where they remain in Possession of y® Vendor; but when y® Deed is recorded or y® Grantee enters into Possession of ye Land, and improves it as his own, every one, thereby, is sufficiently cautioned against purchasing ye Land of ye former Possessor, and is in no Danger of being injured or defrauded, unless it be by an Attempt to defraud a fair bona Fide Purchaser.

The restrictive Clause in y® Province, though not in y® very Words of y® Colony Law, is of y® like Import, and establishes y® same Rule ; it is designed to prevent clandestine Conveyances, operating to y® Prejudice of bona Fide Purchasers; and it will have y® desired Effect, if it be fo construed, as that a Deed of Conveyance, not accompanied with Possession, nor recorded, may not prevent Houses and Lands or any Estate therein falling by such an after Conveyance as would have been effectual for that Purpose, had y® first Deed never been made. The Words of y® Act will well bear such Construction, y® Act, fo expounded, will stand with y® Reason of y® Common Law, and, therefore, ought to be fo expounded : — If it is, it is plain, that Land will not pass by a second Bargain and Sale thereof, made while y® first Bargainee is in Possession of y® Land, claiming it as his own; and, consequently, that the second Bargainee cannot recover or hold y® Land.

Nor can y® Land, in such Case, be taken in Execution by a Creditor of y® Bargainor for Satisfaction of his Debts; because it is not, in Fact, his Land, nor is it apparently fo. Pie has no Estate, Right or Interest, in or to y® Land, nor Possession of it, by himself or his Tenant. The Bargainee is not a Tenant at Will to y® Bargainor, nor doth he hold y® Land in Right of ye Bargainor, but in his own Right; nor is he a Diffessor; the Deed gives him a Right to enter into ye Land, and hold it against ye Bargainor, and, consequently, he is not a Tenant at Will or a Diffessor. He is a Tenant in Fee Simple ; he may convey ye Land to another in Fee, or devise it; if he does neither, but dies fo seised thereof, it will descend to his Heirs, and neither y® Land nor any Right or Estate in it will descend to y® Heirs of y® Bargainor.

Nor is y® Conveyance fraudulent in Fact, but is a bona Fide Purchase, and y® Land is liable to be taken in Execution for satisfying y® Bargainee’s Debts. — Surely, it is not y® Estate of both, and liable to be taken in Execution for y® Debts of both, at the same Time.

If it be objected, “ that y® Conveyance will be effectual against other Persons besides y® Grantor and his Heirs, if y® Land may not be attached by his Creditors, against y® Intent as well as express Words of y® A6t,” — in Anfwer thereto, it may be said;—lit, That y® Objection is of equal Force, upon the Supposition that y® Land may be attached as the Bargainee’s Estate, by his Creditors; for y® Deed, though not recorded, secures y® Land against y® Bargainor and his Heirs, fo that y® Bargainee cannot be removed by them; and, if his not recording y® Deed will also secure it against y® Bargainee’s Creditors, then y® Conveyance will not only be" effectual against other Persons besides the Grant or and his Heirs, but be a strong Inducement to many Purchasers not to record their Deeds, left their Land should be taken from them by their Creditors.

2. It is not by Force of ye Deed of Conveyance only, that y° first Grantee is enabled to hold ye Land against ye Creditors and Vendee of y® Bargainor; but by that accompanied with an Entry and continued Possession, which Blackstone says is of equal Notoriety with Livery of Seisin; and that was ye common Evidence of ye Alteration of Property at Common Law. 
      
      (2) Anc. Chart. 86.
     
      
      (3) Anc. Chart. 85.
     
      
      (4) Anc. Chart. 303.
     
      
      
        2 Inst. 673.
     
      
      
         Qu. If ye Estate is not in them ; and alio, if ye Matter of ye Exception would not have been implyed. See 3 Co. 82 b.
     
      
       9 Inst. 266.
     
      
       Under the early registration acts, it was constantly held that open and notorious possession constituted such implied notice of a conveyance as to preclude a subsequent vendee or creditor of the grantor from taking advantage of a neglect to record the same. 2 Mass. 506. 4 Mass. 637. 6 Mass. 487. 10 Mass. 60. 1 Pick. 164. 3 Pick. 149. But since the Rev. Sts. c. 59, § 28, actual notice only will have this effect, which possession alone, however notorious, will not prove. Pomroy v. Stevens, 11 Met. 244. As to what degree of knowledge will amount to actual notice of a prior deed, see Curtis v. Mundy, 3 Met. 403.
     