
    Samuel Dana versus Oliver Newhall and Another.
    A. conveyed land to B., but before the deed was recorded, the bargain was rescinded, and the deed returned to A. B. afterwards obtained the deed by fraud, caused it to be recorded, and then mortgaged the land. The title of the mortgagee was maintained against A.
    This was a plea of land for one half of a farm in Pepperell, in this county, the demandant counting on his own seizin in fee and in mortgage within twenty years. The said Oliver Newhall pleaded non disseisivit, on which issue was joined. Ezekiel Newhall, the other tenant, was defaulted.
    At the trial of the said issue, which was bad at the sittings here after the last October term, before Putnam, J., the demandant, to maintain the issue on his part, produced a deed from the said Oliver to the said Ezekiel, conveying the demanded premises in fee with warranty, dated the 16th of March, 1805, and recorded the 30th of June, 1809 ; the execution of which was duly proved by one of the subscribing witnesses ; also, a mortgage of the same premises from the said Ezekiel to the demandant, dated the 14th of March, 1814, acknowledged and recorded the 28th of the same month.
    The said Oliver stated in defence, that, after the premises were conveyed by him to the said Ezekiel, and before the deed was recorded, it was agreed between them, that the bargain should be re scinded, and the deed given up by Ezekiel to Oliver, which was done accordingly ; and that the said Ezekiel obtained the deed clandestinely and by fraud, from the said Oliver, and put it upon record. To prove this statement, the said Oliver offered to give in evidence the declarations of the said Ezekiel Newhall, made after the deed from Oliver to him had been given up, and before the deed from Ezekiel to the demandant had been executed, which evidence was admitted, notwithstanding the demandant objected thereto.
    * W. Wright testified,
    that he was at work with the said Ezekiel in the latter part of June, 1809, when the said Ezekiel said, that, when he settled with his father, the said Oliver, the old man was careless, and he [Ezekiel] got the deed which was to have been given up ; that it was not.upon record, but he intended to wait till the old man died, and then he would put it on record, and would be as well off as any of them. There was other testimony, proving the declarations of the said Ezekiel, as to the rescinding of the original agreement, and the giving up of the deed, as above stated.
    It appeared from the evidence, that the said Ezekiel had a family, and lived on the premises with the said Oliver, until the spring of 1809, in which year he removed to Bolton, and the next year into the District of Maine, from whence he returned in 1814, and occupied the premises that year.
    There was no evidence to prove that the said original deed from Oliver to Ezekiel was given up, and the bargain rescinded as aforesaid, but the declarations of the said Ezekiel, made after that transaction, and before the execution of the deed to the demandant.
    If the evidence, which was admitted as aforesaid, should have been rejected, a new trial was to be granted ; otherwise judgment was to be rendered for the tenant, upon the verdict returned for him.
    
      Bigelow, for the tenant,
    insisted, that the declarations of a party to the suit were always deemed good as against such party and all claiming under him. It was the demandant’s mistake to join Ezekiel in tuts action, by which means his declarations became competent evidence. That the giving up the deed operated to divest the estate from Ezekiel, and to revest it in Oliver, he cited the case of The Commonwealth vs. Dudley. 
      
    
    
      Lawrence, for the demandant.
    The action was well brought against the mortgagor and the tenant in * possession ; and in no case can the declarations of one defendant be evidence for his co-defendant. 
    
    It is well settled in our country, although the law is not so in England, that, when a deed not recorded is cancelled, the estate re-vests in the grantor. But cancelling must be understood technically, For, if a deed be delivered up to the grantor, and afterwards gets to the hands of the grantee uncancelled, it will still have force as a conveyance. 
    
    The demandant had good right to rely on the title of Ezekiel, who produced the deed of his grantor, duly acknowledged and recorded. The acknowledgment of a grantor is not sufficient proof of the execution of a deed. The subscribing witness must be produced. And, since cancelling a deed passes a title here, as good evidence should be required of such cancelling as of the execution of a deed in other cases. 
    
    
      
       10 Mass Rep. 403.
    
    
      
       1 Mass. Rev. 69. — 4 Mass. Rep 707. — 12 Mass. Rep. 439
    
    
      
       1 Wood’s Conveyancing, 875. — Shep. Touch. 70. — 5 Co. 119, b.— Dyer, 59, 112 — Cro. Eliz. 483.
    
    
      
       1 Esp. Rep. 90. — Doug. 216. —7 D. E. 267.-4 East, 53. — 2 B. & P. 85
    
   Parker, C. J.,

delivered the opinion of the Court. Without determining on the propriety of admitting evidence of the declarations of Ezekiel Newhall, tending to defeat the title of the demand-ant, derived directly from him, of which there is certainly reason to doubt; we all think the verdict clearly wrong. For, on the supposition that those declarations were competent evidence, they do not, of themselves, impeach the demandant’s title.

Oliver Newhall, the father, made his deed to Ezekiel Newhall, the son, and thus vested in him the title to the land. This title, thus created, could not be destroyed, to the prejudice of a bona, fide purchaser of Ezekiel, without an actual cancelling of the deed which had been given to him. An agreement to rescind the bargain did not rescind it; and, although the deed was returned to the father, and was afterwards retaken fraudulently by the son, the title remained in him as to purchasers.

The mortgage to the demandant was made in 1814. The deed from Oliver to Ezekiel had been then four or five years upon record, and Ezekiel was at that time in * possession of the land. Now to permit him, from whom the title flowed, under such circumstances, to reclaim the land against his own deed, by parol evidence of a secret bargain between him and his grantee, would be to destroy all faith in records and deeds, and to set afloat titles to real estate, which it is the policy of our law to make depend upon solemn and public acts, and not upon loose and uncertain oral testimony. The verdict is set aside, and

A new trial granted. 
      
       Even cancelling the deed would not be sufficient to destroy the grantee’s tita See 9 Pick. 105. — Greenleaf on Evidence, 302, 303, and cases cited. — Ed.]
     