
    Emerson vs. Littlefield.
    
    The title of an execution creditor, under a levy upon the real estate of his debt- or, is not affected by notice of a prior conveyance not recorded, the creditor having no knowledge thereof at the time of the attachment upon his writ.
    
    This was trespass quare clausum fregit, brought to try the title to a lot of land, lying in Wells, in this county, and was submitted to the Court, upon the following agreed statement of facts.
    
      On the 2d of July, 1832, Thomas Boston, being seized in fee of the lot in question, conveyed it to the defendant, who at the same time and as a consideration for the conveyance, obligated himself to support the grantor and wife, during their lives, mortgaging back the same estate to secure the fulfilment of this obligation. The first deed was not recorded until the 5th of September, 1833, and the latter in May, 1834.
    Previous to these conveyances, said Boston was indebted to the plaintiff in the sum of $60, on which he commenced his suit, and attached the lot in question on the 13th of May, 1833. Judgment was obtained and execution duly levied, the following June. At the time of the levy the defendant objected thereto, and gave the plaintiff notice of Boston’s deed to him, of July 2d, 1832.
    
      Boston, and the defendant, had lived together on the premises, from the time of said conveyance.
    
      Holmes, for the defendant,
    endeavored to show that there was no distinction between a subsequent purchaser with notice, and a levying creditor with notice. That, in either case, the attempt to acquire a title after such notice, was a fraud upon the purchaser, and could not be successful.
    
      Bourne, for the plaintiff,
    relied on the case of Stanley v. Perley, 5 Greenl. 369.
    
   Weston C. J.

It may possibly deserve consideration, whether there may not be ground for distinguishing the case of an attaching creditor, with notice, from that of a second purchaser with notice. The latter, with full kno ¡vledge of the facts, lends his aid to the vendor in defrauding the first purchaser. He pays his grantor for what he knows belongs to another. The attaching creditor is seeking an honest debt, and endeavors to save himself from loss, by taking advantage of the negligence of the purchaser, in omitting to record his deed. If notice, however, is equivalent to registry, aside from the ingredient of fraud, as seems now to be generally understood, no such distinction could obtain.

But without resorting to any such ground, the plaintiff is entitled to judgment. His title relates hack to the day of the attachment. At that time he had no knowledge whatever of the defendant’s deed. He has a right to hold, therefore, although apprized of the deed, when he made his levy. The case of Stanley v. Perley, 5 Greenl. 369, cited for the plaintiff, is expressly in point.

Defendant defaulted.  