
    Nathaniel Hatch vs. Buchan Haskins.
    When two mortgages, dated and acknowledged at different times, are recorded upon the same day, their priority of registry must be determined by the record alone, and no parol evidence is admissible to show which was first received.
    The order in which the mortgages are entered upon the book of records, furnishes no evidence that one was received prior to the other.
    Where so far as it respects the record, the rights under two deeds are equal, the title under the one first made is not defeated or impaired by such registry of the second; but to give the second deed the priority, it must be first recorded.
    As the possession and production of a deed by the grantee, is prima facie evidence of its having been delivered; so if it be found in the hands of the grantor, the presumption arises that no delivery had been made.
    This action was brought to recover possession of certain mortgaged premises, and came before the Court upon a statement of facts, in the form of the report of a trial, the parties agreeing, that evidence stated as given should be subject to any objections to its competency, and that the Court might infer from the evidence any facts which a jury would be authorized to find. The demandant produced a deed of the premises from Bussey to Brown, dated March 15,1833, and acknowledged and recorded April 27,1833; a mortgage from Brown to Emmons, dated April 26, 1833, to secure the payment of four notes of $69,60 each, which were produced by the demandant, overdue and unpaid, acknowledged April 27, and recorded the 29th of the same month; an assignment of the mortgage from Emmons to the demandant, dated May 2,1833, acknowledged May 3, 1833, and recorded May 30, 1838.
    The tenant then produced in evidence a mortgage of the same premises to secure the payment of four notes of $69,60 each, from Brown to Bussey, dated March 15, 1833, acknowledged April 27, and recorded April 29, 1833 ; a quitclaim deed from Bussey to the tenant and Griffin, dated and acknowledged June 9? and recorded June 10, 1835 ; and an assignment of the mortgage from Bussey to the tenant and Griffin, dated June 9, 1835, but not acknowledged or recorded.
    The demandant then proved a notice to Mr. Poor, the tenant’s' counsel, to produce a mortgage deed from Bradbury and Griffin to Brown. Mr. Poor denied the right to call for the deed, and refused to produce it. The demandant then called Mr. Poor as a witness, and he testified in substance, that he found a paper in the common form of a mortgage deed from Bradbury and Griffin to-Brown, dated August 10, 1833, and acknowledged the same day, conditioned, that the mortgagers should pay the notes of Brown to Bussey, and to Emmons; that Bradbury died intestate, January 29, 1834 ; that the witness was attorney of the administrator, and first found this paper after the commencement of this suit among the papers of Bradbury’s administrator, in the office of McGaw,. Allen Poor, which papers were under his peculiar care, but were accessible to his partners, and students in the office; and that he did not know of its existence until after the sale by Bradbury’s administrator. The demandant introduced a deed of warranty of the premises from Brown to Bradbury Griffin, dated Aug. 10, 1833, and acknowledged and recorded the same day; a deed of one half of the premises from Griffin to Bradbury, dated Nov. 18, 1833, and recorded July 11, 1835; and a deed from the administrator of Bradbury to the tenant, dated June 8, 1835, acknowledged the 9th and recorded the 10th of the same month. The clerk in the register’s office in April, May and June, 1833, testified, that he made a memorandum appearing on the back of the mortgage Broivn to Emmons, signed by him, w'hich certifies, that the Emmons mortgage was received and entered prior to the mortgage from Brown to Bussey. The demandant produced a volume of the records of deeds whereby it appeared, that the Emmons mortgage was entered on an earlier page than the Bussey mortgage, but there was nothing, unless this, showing which was entered or recorded first.
    The tenant then proved by the register of deeds, that all deeds recorded in his office are entered by their titles in a small book the day alter they are received, and when recorded, are entered as of the day when left; that in April, 1833, deeds were not actually recorded, until two or three weeks after they were received ; that several volumes were in use at the same time; and that an entry on an earlier or later page proved nothing as to priority of receipt of either of two deeds received on the same day. The tenant proved, that Emmons, at the time he took his mortgage from Brown, knew of the existence of the notes and mortgage to Bussey, the latter having been made to secure the purchase money, and that to him to secure his profits on the sale.
    
      Hatch, pro se,
    
    in his argument, contended, that by the deed from Bussey to Brown, and the mortgage from Brown to Emmons, proved to have been recorded before any mortgage to Bussey, the EmmOns mortgage had priority ; unless postponed by Emmon’s knowledge of the Bussey mortgage. This knowledge of Emmons could not affect the rights of his assignee, the demandant. Stai. 1821, c. 36; Connecticut v. Bradish, 14 Mass. R. 296; Trull v. Bigelow, 16 Mass. 11. 406; Cushing v. Hurd, 4 Pick. 253 ; Sigourney v. Lamed, 10 Pick. 72 ; 2 Powell on Mort. (Cov. fy R. Ed.) 631, and note. As the demandant had no actual notice of the Bussey mortgage, none can be implied. 7 Greenl. 195; 5 Greenl. 369; 8 Greenl. 94; 3 Pick. 149. No time is allowed in this State for the registration of deeds, and therefore it takes effect only from the time the deed is entered. As the tenant has the legal estate by deed from the administrator of Bradbury, the quitclaim to him is a merger of the mortgage, and it cannot be set up as now existing. 3 Greenl. 260; 6 Pick. 492. The assignment of the Bussey mortgage to the tenant, never having been acknowledged, or recorded, cannot avail the tenant, but show's merely, that the quitclaim deed was intended as a discharge. 2 
      Greenl. 322. The tenant took the land, on the purchase from Bradbury’s administrator, subject to the payment of the Emmons mortgage, and' cannot set up any title acquired by the Bussey mortgage against it. As Brown’s deed to Bradbury, and Bradbury’s mortgage back' to Brown, were executed and acknowledged the same day, the'law will presume it was one transaction, and that thqy were delivered at the same time. 4 Greenl. 20 ; 5 Pick. 181. It is not essential to the validity of a deed that the grantee should be present, or that it .'should be accepted by him personally at the time. 9 Mass. R. 307 ; 10-Mass. R‘. 456; 17 Mass. R. 213. The testimony of the clerk was properly admitted to prove the time of the receipt of the deeds for registry. It was not to contradict the record, but merely to supply a fact which the record did not show. 8' Greenl. 438. If the testimony of the clerk was improper, then that of the register should be rejected. The record itself shows, that the Emmons mortgage was first recorded.
    
      J. A. Poor, and II. V. Poor, for the tenant, handed the Court this brief of their argument.
    1. Match can gain no advantage by his deed that Emmons could not. He. has legal notice of the prior-mortgage.1 The deposition of Porter, the clerk, and the certificate upon the mortgage from Brown to Emmons, may be evidence to show Match’s knowledge, but not to show a prior registry.
    2v A deed recorded takes effect from and operates as notice to all parties taking subsequent conveyances, from the time of its registry.. Van Rensselaer v. Clark, 17 Wend. 25. Our Court has never sustained the doctrine of the cases State of Conn. v. Bra-dish, 14 Mass. R. 296, and Trull v. Bigelow,'16 Mass. R. 406, but have .intimated a contrary doctrine. The case cited from 17 Wend, is directly opposed to-the Massachusetts cases.
    3. The plaintiff can take nothing against the defendant’s title until his assignment is recorded. The doctrine contended for by the plaintiff destroys his own case. The defendant had no notice of any title in any one, except Emmons, whose title was fraudulent, as set up against our prior deed.
    4. The case shows, that the two mortgage deeds were recorded simultaneously. No parol evidence is admissible to- vary, explain or alter the registry. If recorded simultaneously our mortgage being prior must take precedence. Hopkins, 569; 1 Paine, 525 ; 6 Johns. C. 417; 4 Johns. C. 70; 2 Cowen, 246. >
    5. The defendant by taking the equity and the mortgage, has not discharged the mortgage. • Courts will keep alive a mortgage, or consider it extinguished, as is most for the benefit of the mortgagee. Hatch v. Kimball, 14 Maine R. 9; Thompson v. Chandler, 7 Greenl. 377; Russell v. Austin, 1 Paige, 192; Forbes v. Moffatt, 18 Vesey, 384; James v. Morey, 2 Cowen, 246.
    6. There is no evidence that the mortgage from Bradbury and Griffin to Brown was ever delivered or in force. All presumption is against its. delivery. It is never presumed to have been delivered when left unexplained in the hands of the grantor. It is found here in the hands of the grantor. Jackson v. Leek, 12 Wend. 105; Church v. Gilman, 15 Wend. 656; Jackson v. Richards, 43 Cowen, 617.
   The opinion of the Court was prepared by

Shepley J.

It appears, that Brown, who purchased of Bussey, reconveyed to him on the same day in mortgage, and on a subsequent day made a second mortgage of the premises to Emmons. Both these mortgages were recorded on the same day, there being no indication of the hour of the day, and nothing upon the record to show, that one was received before the other, unless it can be inferred from the fact, that one appears to have been recorded on an earlier page of the book than the other. It is the date of the reception and record, and not the order in which the entry is made, that is to be relied upon as giving notice of priority. The record is the instrument of notice to subsequent purchasers of the state of the title ; and to permit it in any manner to be affected by parol or extraneous evidence would not only destroy its value for that purpose, but would convert it into an instrument for deception., It would be dangerous to the rights of all subsequent purchasers, and contrary to the established rules of .evidence to admit any of the testimony offered to explain or vary the record ; and it must all be regarded as out of the agreed statement of facts; and the decision of this point in the case must be made from the information to be derived from the record alone.

By the mortgage to Bussey, the estate passed, and did not remain in the grantor until the deed was recorded. Marshall v. Fiske, 6 Mass. R. 31. This title may be defeated by a subsequent conveyance first recorded. But to have this effect the record should be first, not simultaneous. The record of both the mortgages must in this case be regarded as made at the same time. So far as it respects the record their rights are equal, and the title which passed'by the first deed is not defeated by an equality, but by. a superiority of right in the record. A stranger to the title wishing to purchase and applying to the proper source for information finds the owner has made two conveyances to different persons one before the other, and that both were recorded' at the. same time; -how can he justly conclude, that the title by the first -conveyance has been defeated, when the second purchaser has not in any why acquired a superiority of right ? Judge Trowbridge says, if “ the last deed is recorded before the first the estate will pass to the second purchaser.” 3 Mass. R. 531. Mr. Justice Jackson, in delivering the opinion of the Court, in the case of State of Connecticut v. Bradish, 14 Mass. R. 300, says, “ but if the second purchaser procures his deed to be recorded before the other, and then sells the land bona fide, and for a valuable consideration to a person wholly ignorant of those circumstances, the latter will hold, the land against the first purchaser.”

The demandant failing to shew, that the title by the first mortgage was defeated, can recover only by assuming the position óf a second mortgagee, and shewing that the debt, secured by-the first mortgage has been paid, or that the tenant holds it in such a manner, that-he cannot set it up against him. The first mortgage cannot be regarded as paid or merged ; .for it is agreed, that it was assigned to the tenant and Griffin, and that it was given to secure certain notes, “ which were produced by the tenant overdue at the commencement of this suit and unpaid.” The tenant derives his title by 3-conveyance from Brown to Bradbury arid Griffin, and from Griffin, to • Bradbury, and from the administrator of Bradbury to himself. ' The demandant contends, that Bradbury and Griffin pri the day- of their purchase from Brown mortgaged the premises to him to secure the payment of the notes given by him to Bussey and to Emmons. Such a deed appears to have been signed, sealed and acknowledged by them. Tho only testimony to prove it to have been delivered and to have taken effect as their deed is, that Mr. Poor, who was attorney for the administrator of Bradbury, “ first found this paper after tho commencement of this suit among the papers of Bradbury’s administrator in the office of Mc-Gaw, Allen Poor.” It is said, that the delivery must be inferred from the delivery of the deed from Brown to them, both being parts of the same transaction. If both had taken effect, they should be construed together as designed to effect one object; but it may be, that after the deeds were prepared and signed, another mode of securing or paying the consideration of their purchase was substituted, and that it was not intended to be delivered. And the absence of all evidence that Brown ever had possession of it, or that it has been in the possession or control of any one but one of the grantors and his legal representative, with the fact, that it was found among the papers of that one after his death, raises a presumption, that such must have been the fact. The possession and production of a deed by the grantee is prima facie evidence of its having been delivered ; and for like reasons in the absence of all contradictory testimony the presumption arises, when found in the possession and produced by the grantor, that it has not been delivered. Upon the testimony in this case, although the fact may be otherwise, that mortgage cannot be considered as a valid deed. The tenant being in possession under a prior mortgage not paid, and so far as now appears not being under any legal obligation to pay the mortgage held by the demandant, may resist his entry.

Plaintiff nonsuit.  