
    Raynor vs. Wilson.
    The surrender or destruction of a deed of lands will not operate to revest the grantor with the title.
    The plaintiff, being seised and possessed of land under an unrecorded deed executed by A., contracted to sell to B., and for that purpose destroyed the deed from A., who at the plaintiff’s request made a new conyeyance to B.; all parties supposing this to be the proper mode of transferring the title. Held, that though the deed to B. was recorded, the title still remained in the plaintiff.
    The statute avoiding an unrecorded deed as against a subsequent purchaser in good faith &c., applies only to successive purchasers from the same grantor. Per Beardsley, J.
    A mortgage given by the plaintiff in ejectment to a third person, being a mere security, and not an outstanding title, cannot be set up by the defendant to defeat a recovery.
    Ejectment for a lot of land in Moriches, Suffolk county, tried before Rugóles, C. Judge, at the Suffolk circuit in May, 1843. The case was this: ' On the 5th of October, 1841, one Penny, who then owned the premises, sold them to the plaintiff for §1000, and gave him a deed thereof. The deed was acknowledged and delivered on that day, but had no date, and was not recorded. At the time of executing the deed, the plaintiff paid §300 of the purchase money, and gave Penny two notes, one for $100, payable on demand, and the other for $200, payable in one year. For the residue of the purchase money, the plaintiff gave a note of $400 to one Robinson, and executed-a mortgage on the premises to secure its payment. The note for $100 was soon afterwards paid; and in September, 1842, an agreement was entered into between the plaintiff and defendant, by which the latter was to pay the $200 note, together with the note of $400, and the premises were to be conveyed to his wife". It was also agreed that the defendant should mortgage the premises to Robinson, by way of securing the $400. In order to carry this agreement into effect, the deed from Penny to the plaintiff was re-delivered and destroyed, and. a new deed executed by Penny to the defendant’s wife. This course was taken under the supposition that, as the deed from Penny to the plaintiff was without date, and had not been recorded, it conveyed no title. The $400 note and mortgage were re-delivered by Robinson to the plaintiff, for the purpose of being cancelled; and a new mortgage was executed to Robinson by the defendant’s wife, in which, however, the defendant did not join. The plaintiff cancelled the note, but retained the mortgage, and afterwards re-delivered it to Robinson, annexing a covenant that it should remain a valid and subsisting security for the $400, notwithstanding the destruction of the note &c. The deed executed by Penny to the defendant’s wife was recorded soon after its date. The defendant having failed to pay the $200 note, the plaintiff brought this action, insisting that he still had the legal title. The defendant contended that the deed from Penny to the plaintiff was rendered void by the recording of the deed to the defendant’s wife. A verdict was rendered for the plaintiff, subject to the opinion of the court upon a case.
    G..Miller, for the plaintiff, now moved for judgment upon the verdict.
    
      A. T. Rose, for the defendant.
    1. The act of re-delivering the plaintiff’s deed and the Robinson mortgage, for the purpose of being cancelled, operated to revest the title of Penny, and the case is therefore within Jackson v. Chase, (2 Johns. Rep. 84.) 2. By the recording of the deed from Penny to the defendant’s wife, the prior unrecorded deed to the plaintiff became inoperative and void. (1 R. S'. 739, § 144; id. 756, § 1.)
    
      Miller, in reply.
    The re-delivery and destruction of the deed executed to the plaintiff, did not divest his title. An estate in fee or of freehold can only be conveyed by grant duly signed, sealed and delivered. (1 R. /S'. 738, §§ 137, 8.) The case is not within the principle of Jackson v. Chase, relied on by the defendant’s counsel. Here, the plaintiff’s mortgage was not given to Penny, the grantor, but to a third person, with whose right the defendant is in no way connected. The mortgage is not an outstanding title, but a mere security; and the mortgagor is regarded as the legal owner of the estate. (Jackson v. Myers, 11 Wend. 533.)
    The recording acts have no application to the case. Their object is, “to prevent the person having title from conveying it more than once, and thereby defrauding one or more of the purchasers.” (Jackson v. Post, 15 Wend. 588, 594.) The parties here do not stand in the relation of successive purchasers from the same grantor. Though the deed to the defendant’s wife was executed by Penny, it was known that he had no title, and the purchase, if any, was from the plaintiff. Besides, the deed to the wife was accepted with full knowledge of the fact that the premises had been previously conveyed to the plaintiff; and therefore the defendant cannot be regarded as a bona fide purchaser. (Tuttle v. Jackson, 6 Wend. 213, 216; Jackson v. Post, 15 id. 588, 594; Jackson v. Leek, 19 id. 339, 341; Van Rensselaer v. Clark, 17 id. 25, 30; Jackson v. Burgott, 10 Johns. Rep. 457.)
   By the Court, Beardsley, J.

Title passed to the plaintiff by the deed from Penny to him, and it was not divested by the destruction of that deed and the execution of another by Penny to Mrs. Wilson, in pursuance of the agreement between the par ties.

This is not like the case of Jackson v. Chase, (2 Johns. 84,) to which we are referred. That was decided on the principle that the mortgage given by the grantee of the premises to his grantor, for the purchase money, re-invested the latter with the legal title; and as the lessors of the plaintiff, ip that case, claimed under the mortgagee, who thus had title, it was held 'that they were entitled to recover. That principle has no application to this case. Here the mortgage was not given to Penny, who had conveyed to the mortgagor, but to Robinson, with whose right as mortgagee, whatever that may be, the defendant is in no way connected. The defendant therefore could not set up that mortgage unless it is to be regarded as an outstanding title. Such however is not its effect. It is nothing more than a lien upon the land for the security of the mortgage debt, the mortgagor being looked upon as the legal OAvner. (Astor v. Hoyt, 5 Wend. 603, 615, 616; Jackson v. Myers, 11 id. 533, 537.)

Although the deed to Mrs. Wilson from Penny was recorded, and the one from him to the plaintiff was not, it by no means follows that the former can be sustained under the recording act. This statute was made to protect innocent purchasers against the frauds of sellers; to prevent those who once had title to land from making successive sales, and thereby defrauding one or more of the purchasers. (Jackson v. Post, 15 Wend. 588, 594; per Platt, J. in Dunham v. Dey, 15 Johns. Rep. 555, 568; 2 Sugd. On Vend. 222.) In its reason and object the statute can have no application to such a transaction as this was. Indeed, no conveyance is protected by it except one founded on a purchase of the supposed right of the grantor, but which he had previously conveyed to another person by a deed not yet placed on record and of which the purchaser had no notice. It is true, the language of one of the sections is general, that every unrecorded conveyance “ shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” (1 R. S. 756, § 1.) But this is not to be taken literally in favor of any and every subsequent purchaser of the same real estate, without regard to the person of whom the purchase is made. That Avould lead to absurd consequences, and the section should not receive such an interpretation. It applies to successive pinchases of the same real estate from the same seller, and must be limited to cases of that description. This is plain enough on the words and spirit of the section already referred to; but the statute contains another section which declares that “every grant shall also be conclusive as against subsequent purchasers from such [i e. the same] grantor, or from his heirs claiming as such, except a subsequent purchaser, in good faith, and for a valuable consideration, who shall acquire a superior title by a conveyance that shall have been first duly recorded.” (1 R. .S. 739, § 144.) These sections being in pari materia, must be construed in reference to each other; and they leave no doubt of the sense in which both are to be understood.

The deed to Mrs. Wilson was executed upon a contract of purchase made by her husband with the plaintiff. The intent was to purchase and acquire his right and title, and not any supposed title which his grantor had. The plaintiff was then absolute owner of the land, subject to the lien of the mortgage to Robinson. It was well understood that Penny had no right to the land, nor did he pretend to have any. The bargain made between the plaintiff and defendant assumed that the former was owner: and the parties were only mistaken in supposing that the destruction of the deed to the plaintiff would re-invest Penny with his former title, so that a deed from him to Mrs. Wilson would convey the land. Here has been no fraud, but the whole difficulty has arisen from mistaking the legal effect of destroying a deed.

I am of opinion that the plaintiff has the legal title, and that judgment should be rendered in his favor upon the verdict.

Judgment for the plaintiff. 
      
       There are a few cases, however, which hold that the- destruction of a title deed may, under certain circumstances, operate to revest the estate. Thus, where A., being seised and possessed of land under an unrecorded deed from B., contracted to sell to C., and for that purpose cancelled B.’s deed, who at A.’s request made a new conveyance to C.; held, that C.’s title was valid. (Commonwealth v. Dudley, 10 Mass. Rep. 403.) The same doctrine was recognized and acted upon in Holbrook v. Tirrell, (9 Pick. 105,) and in Tomson v. Ward, (1 New-Hampshire Rep. 9.) See also Fairar v. Farrar, (4 id. 191;) Chelsey v. Frost, (1 id. 145;) Barrett v. Thorndike, (1 Greenl. Rep. 73.)
      In Farrar v. Farrar, supra, the learned judge who delivered the opinion of the court conceded “ that the cancelling of a deed does not revest property which has once passed under it” ; and, as to the cases of Tomson v. Ward, and Commonwealth v. Dudley, he observed: “ The true ground on which these decisions are to be supported is, that the grantee having voluntarily and without any misapprehension or mistake, consented to the destruction of the deed, with a view to revest the title, neither he nor any other person claiming by a title subsequently derived from him, is to be permitted to show the contents of the deed so destroyed, by parol evidence. So that in fact there being no competent evidence that the land ever passed, the title is to be considered as having always remained in the grantor.” With the exception of the above decisions, presenting it is believed a somewhat novel application of the doctrine of estoppel in pais, the general current of authority will be found in accordance with the case reported in the text. See Jackson v. Chase, (2 Johns. R. 84, 87 ;) Lewis v. Payne, (8 Cowen,. 71, 75 ;) Jackson v. Gould, (7 Wend. 364, 366;) Botsford v. Morehouse, (4 Conn. Rep. 550 ;) Gilbert v. Bulkley, (5 id. 262 ;) Coe v. Turner, (id. 86;) Marshall v. Fisk, (6 Mass. Rep. 24;) Chessman v. Whittemore, (23 Pick, 231, 234;) Anonymous, (Latch’s Rep. 226 ; Palm. Rep. 403, S. C.;) Roe v. Archbishop of York, (6 East, 86;) Bolton v. Bishop of Carlisle, (2 H. Black. 259;) Doe v. Bingham, (4 Barn. & Ald. 671;) Nelthorpe v. Dorrington, (2 Lev. 113;) Magennis v. Mac Cullough, (Gilb. Eq. Cas. 235;) Woodward v. Aston, (1 Vent. 296;) Perrott v. Permit, (14 East. 422;) Harrison v. Owen, (1 Atk. 519 ;) 1 Shop. Touch. 141, Preston's ed.; Bull. N. P. 267; 3 Preston On Abs. 103 ; Gilb. Ev. 111, 112.
     