
    Ezra Trull versus Lewis Bigelow.
    
      A., for a valuable consideration, conveys land to B. Before BJ’s deed is registeied, A. fraudulently conveys the same land to C., who knows of the prior con veyance, and immediately puts his deed on record before B. C. conveys to D., who is ignorant of the fraud; and BJ’s title was holden good, against that of the grantee of B.
    
    This was a writ of entry sur disseisin. The tenant pleaded several pleas in bar, to one of which the demandant demurred, and the others resulted in issues to the country. From the whole record the following facts appeared.
    On the 10th day of November, 1812, one Samuel Bosworth, whose title is acknowledged by both parties, conveyed the demanded premises to George Bosworth in fee. This conveyance was made bona fide, and for a valuable consideration. The deed was acknowledged on the day of its date; but it was not registered until the 17th of November, a week after its execution. On the 16th of March, 1816, George Bostvorth, the grantee, conveyed the same premises to Bigeloiv, the tenant, in fee; and this deed was duly acknowledged and registered.
    On the 12th of November, 18)2, the said. Samuel Bosworth, the original grantor, made another deed of the same land to one Jeduthun Cadwell, which was registered on the next day; the said Cad-well knowing of the prior conveyance to G. Bosworth. On the 26th of February, 1813, Cadwell conveyed the premises to one Samuel Judd, by deed, duly acknowledged and recorded; who, on the 3d of March following, conveyed the same to the demandant, by a deed also duly acknowledged and recorded
    
      * Argument for the tenant.
    It is a well-settled principle [ * 407] of law, that if a purchaser of land, whose deed is registered, have notice, at the time of the purchase, of a prior conveyance of the same land, although not registered, his deed is fraudulent and void as against the prior conveyance. For the object of the registration is to give notice to subsequent purchasers : and if that object be otherwise effected, the intent of the statute will be fulfilled . Such notice may be actual or constructive; but none can be more effectual than the registration, because this is the statute method of giving notice; and every other method is but a substitute for that, as being within the equity of the statute. It follows, then, that the deed to Cad-well was void as to George Bosworth.
    
    We contend then, that a bona fide conveyance, which is valid as against a fraudulent conveyance, whether antecedently or subsequently made, cannot, when registered, be defeated by any subsequent conveyance of the fraudulent grantee.
    The only objection which can be made to this position is, that the registration of a deed is not, in itself, notice to subsequent purchasers. But no case can be produced in support of this objection, except that of The State of Connecticut vs. Bradish 
      . But the decision of that case did not necessarily involve a decision of this question, although it cannot be denied that the reasoning of the court goes that length.
    The principal question there was, which of two mortgages should have the priority, there being no suggestion of fraud in either. It appeared that, although the second mortgagees had notice of the first mortgage, the first mortgagees had neglected to have their deed registered, for the space of six months after it was made ; and that the second mortgage, which was first registered, was given but two days before the registry of the first mortgage. Under these circustances, the second mortgagees might well have presumed, from the length of time, that the first * mortgage re- [ * 408 ] mained unregistered, either that it was not bona fide, or that it had been cancelled, or that the estate had been reconveyed; and if the first mortgagees suffered, it was' entirely owing to their own negligence . The case was then properly decided upon another ground than that taken by the court; for, whether the assignee of the second mortgagees had, or had not, notice of the first mortgage, could make no difference; because the second mortgage woe valid against the first; the second having been first registered, and the first not having been registered within a reasonable time.
    The question then returns, whether the registration of a deed is, in itself, notice to all subsequent purchasers, or whether, when a bond fide deed is duly enrolled, it may be defeated by a subsequent conveyance of a fraudulent grantee. If it be new permitted to consider this question as res integra, it may be useful, in the first place, to consider the object of the statute of enrolments, and the mischiefs intended to be remedied, and then inquire what construction of the statute will best promote the object and avoid thr mischiefs.
    The preamble of the statute recites, that “ whereas it is necessary, in order to prevent uncertainty, fraud, and perjury, in the transferring of real estate, that a mode therefor should be established, easy, certain, and notorious; ” and it is then provided, that “ a deed of any lands, duly executed by the grantor, having good and lawful right or authority thereunto, and recorded at length in the registry of deeds in the county where such lands lie, shall be valid to pass the same without any other act or ceremony in the law whatsoever.” One object of this statute was to prevent fraud in the conveyance of real estate, and that object was intended to be attained by giving notoriety to the conveyance. The registry is a public depository for deeds, to which all persons may resort for information, as to the titles of the estates they would purchase, and when lands [ * 409 ] are conveyed by one who * has lawful right or authority thereunto, and the deed is duly registered, the lands must pass to the grantee. As every grantee, therefore, has it in his power, by examining the registry, to ascertain whether there be any other claim to the land besides that of his grantor, he shall not be permitted to say that, although the registry exhibits the claim oi another person, he did not know of it. . Another object of the stat,te was to prevent parole proof of notice or not notice, and thereby to prevent perjury ; and the court will admit parole proof of notice, or of a want of it, even where the deed is registered ; but, according to the reasoning in Connecticut vs. Bradish, will not allow that to oe notice which was intended to supersede parole evidence. If that principle be finally established as law, the statute providing for the registration of deeds will produce the very mischiefs which were intended to be avoided. Adopting the doctrine that a purchaser is not bound to examine beyond the conveyance of his urantor, and that a fraudulent grantee may convey a good title to one who has not actual notice of the fraud, if a fraudulent purchaser should succeed in procuring his deed to be first registered, a boni 
      
      fide purchaser could never so perfect his title, but that it would be liable to be defeated by the fraud, although the fraud could be made most manifest. It would only be necessary for a person, whose object should be to defraud an honest purchaser of his estate, to take a deed of the same, and then to procure the fleetest horse to carry his deed to the registry. Although, in such case, the deed first registered would be void as against the"first purchaser, yet the fraudulent grantee might find some person who would take a conveyance from him, without inquiring as to his title, perhaps relying upon his covenants and responsibility, and thus a fraud would be established and perpetuated by the very statute which was designed to prevent it. The registration of a deed was intended to give notice to subsequent purchasers; and yet, according to the doctrine in the case we are considering, it is not notice to any body; but a notoriety is thereby * given to the fraudulent deed, which [ * 410 J enables the grantee to convey a good title, notwithstanding he has none himself, and the provision, that the deed of a grantor duly registered shall be valid to pass lands, to which he has lawful right, becomes a nullity.
    There are cases where a conveyance, duly registered, would be void against a subsequent conveyance of the same land, and, consequently, where it would be impossible, in the nature of things, that the valid deed should be first registered. For instance, if a conveyance be made to defraud creditors, and a creditor should afterwards levy his execution upon the lands, or the debtor should convey to him for a valuable consideration, the law says, he shall hold against the fraudulent grantee. So the creditor might cause, the land to be attached, and the attachment would be a lien upon the land, which would enable him to hold it against any subsequent purchaser under the fraudulent grantee, although such subsequent purchaser might pay a valuable consideration, and have no knowledge of the fraud or attachment. In fact the attachment might be unknown to every person but the creditor and officer, and yet it would be sufficient to avoid a subsequent bond fide conveyance. Why then should it be necessary that a bona fide purchaser by deed, who conforms to the requisitions of the law, in order to establish his title, as faithfully as the attaching creditor, should be obliged to prove actual notice of his conveyance, although it be registered, when the attaching creditor would not be bound either to prove notice, or to give notoriety to his attachment ? Will it be contended, that there is such a virtue in the enrolment of a fraudulent deed, merely because it is prior in point of time, that the fraudulent grantee can convey a good title against a bond fide conveyance, which has been duly registered ? Or that the registration of a bond 
      
      fide conveyance is of no avail, because it is posterior to that of the fraudulent conveyance ? If such be the doctrine, a fraud-['*411 ] ulent grantee will always have it in his power to * convey the estate, and the fraud will remain triumphant, notwithstanding any efforts to detect and defeat it; and it would be absurd to say that the fraudulent conveyance is void, and that no estate passes to the fraudulent grantee. If an infant or feme covert should make a deed of lands, or if a deed should be obtained by fraud or duress, or advantage taken of the imbecility or want of capacity of the grantor, and should be duly registered, and the grantor, after the disability should be removed, should convey the same lands, an innocent purchaser under the first grantee could not protect himself against the second conveyance, even when subsequently made; yet this would be a stronger case than that of a second deed first regib tered, because it might be well supposed that qui prior est in tempore, potior est in jure. In all such cases the maxim caveat emptor is op' plicable, and the purchaser must secure himself by covenants, as in other cases of defective title. .
    In the case of Connecticut vs. Bradish, it is said, that “ when a purchaser is examining his title in the registry of deeds, and finds a good conveyance to his grantor, he is not expected to look further and that, “ if he is required to look one day or one page beyond that which exhibits the title of his grantor, it will' be impossible to say where the inquiry shall stop.” If this be a correct principle, it will operate as favorably, to say the least, to the tenant as to the demandant. Here were two conveyances from Samuel Bosworih, one being fraudulent and void as to the other, and both being duly registered. Now, if a person wishes to purchase the estate, and finds both, deeds registered, of which grantee may he safely purchase? If he purchases of the Iona fide grantee, does not the principle apply as strongly as though he purchased of the fraudulent grantee ? Again, if this be a correct principle as a general one, a purchaser would not be bound to examine for any previous conveyance from his grantor; but if he finds a convey- [ * 412 ] anee in legal form to his * grantor, it will be sufficient for him"; and the inevitable consequence would be, that the last purchaser would, in all cases, hold the land, unless he had actual notice of the prior conveyance, although the prior conveyance might be registered.
    It is believed, however, that a purchaser is bound to look for conveyances from those. under whom he claims, as well as to them ; and that it is not sufficient for him to trace his title to its source, but he must see if the title have not been diverted from the channel which conveys it to him.
    There is no good reason why a purchaser should not be bound to notice a subsequent registration of a prior deed, as well as a prior registration of a prior or subsequent deed. It is as easy to find the one as the other; and the trouble and labor of searching the registiy for conveyances from his grantor, and those under whom he claims, as well as to them, is of little moment, when compared with the inconveniences and mischiefs to which honest purchasers may be subjected, if the registration be not notice any further than as to those deeds under which the grantee claims. Most certainly, if a purchaser is obliged to inquire for a prior conveyance from his immediate grantor,—and that he is can hardly be doubted,—we know of no good reason which can be assigned why he should not also be bound to extend the same inquiry as to all the preceding grantors under whom he claims. Every purchaser ought to examine for himself, and he is not to presume that his grantor has a good title, unless he examines as thoroughly as any preceding grantor was bound to do in relation to the title of his grantor.
    When a purchaser discovers several deeds of the same lands from the same grantor, he cannot know, by the registry, which is valid and which is fraudulent; but the circumstance, as it may affect him, is sufficient to put him upon inquiry ; and if he is bound to notice all conveyances which are registered, the statute will be as efficacious, * perhaps, in preventing fraud, as can be [*413] devised. The only danger would be where a fraudulent conveyance is first registered, that a bona fide purchaser might not be able to prove the fraud, or that the fraudulent grantee might convey to one, who should have no knowledge of the fraud before the boná fide purchaser could register bis deed. But when the object of the statute is attained without a registration, as it would be in the case of a second conveyance to one who had actual notice of the first conveyance, and the first purchaser registers his deed before the second grantee conveys, he ought to be iq as good condition as if his deed were first registered, and the prior registration of the second conveyance ought not to prejudice him ; otherwise it would be absurd to say that notice of any kind, whether actual or presumptive, is equivalent to registration. In other words, if subsequent purchasers have notice of a previous conveyance, although not registered, the requisitions of the statute are satisfied, and the prior deed shall have the preference; and if the first purchaser register his deed before a conveyance from any fraudulent grantee to a person who has no notice of the prior deed, it will be the same firing as though such prior deed were registered before the fraudulent deed. If it be not so, there can never be any use in registering a deed, where there is a fraudulent deed first registered, because the only object of the registration is to give notice; and, if that be not notice, the deed may as well remain unregistered.
    The English register acts require that all bargains and sales by deed shall be enrolled within six months from the date or delivery of the deed ^ and if a purchaser procure his deed to be enrolled within the six months, the enrolment has such a relation back to the date or time of delivery of the deed, that all encumbrances and mesne conveyances, made by the grantor between the date or delivery and enrolment, will be void against the first grantee [*414] . *But our statute of enrolments has prescribed no time in which deeds shall be registered; and, therefore, as some time must be necessary for that purpose, a reasonable time is undoubtedly intended. Upon this principle, if a purchaser do not procure his deed to be registered within a reasonable time, he will stand upon the same ground as a purchaser in England would, who should neglect to register his deed for the space of six months from the date or delivery ; on the other hand, if a bona fide purchaser procure his deed to be registered within a reasonable time, he ought to hold the land against all mesne purchasers between the delivery and enrolment, who had actual notice of his deed, and against all" purchasers subsequent to the enrolment, of whomsoever they may purchase. And if a purchaser in England would be bound, as he would be, to search the registry for conveyances from,, as well as to, those under whom he claims, which are enrolled within the six months, there exists the same reason why he should be bound to do the same here, as to those conveyances which are enrolled within a reasonable time. Moreover, if those claiming under Cadwell would have been obliged to take notice of registered conveyances from Samuel Bosworth, if they had purchased of him, why shall they not also be obliged to do the same when they purchase of his grantee ?
    If a fraudulent grantee, who has procured his deed to be first registered, may convey a good title, after the bona fide purchaser has registered his deed, the title of the latter may remain unsettled and uncertain, until it is established by the statute of limitations. The bona fide purchaser may have a good and perfect title, as against the fraudulent grantee, and may have a good right to convey ; and that right will remain until the fraudulent grantee shall find a purchaser, who will take a conveyance without inquiring into his title, and then the fraudulent conveyance will have the preference; and if, in a succession of numerous conveyances, under the fraudulent grantee, any one of the *subse- [ * -Í15 J quent grantees should be ignorant of the fraud, although knowledge might be proved as to all the others, the bona fide purchaser would be defeated of his title. In most cases, there would be no difficulty in finding an innocent purchaser, or one apparently so, because no better notice could be given of the fraud, than by the registry; and the difficulty of proving the necessary notice would be increased in proportion to the number of conveyances. In the case at bar, although the tenant might succeed in proving that all the purchasers under the fraudulent grantee had notice, yet, if the demandant should now convey to a person who should have no notice of the fraud, the tenant would still be defrauded of his land. Surely, then, when fraud is proved, and the bona fide purchaser has done all in his power, and all which the law requires of him, towards the completion of his title, “ it cannot consist with the honor of the law, or .with the wisdom of the administration of justice, that the fraud should remain triumphant.”
    In England, the registration of a deed is notice to all persons whatever, and a purchaser is obliged to search, and is bound by notice of the registry, as he would be of a decree in equity, or a judgment at law. The only exception to this rule, is, that the regis tration of a second mortgage is not notice to the first mortgagee, who may advance more money on his mortgage; and the reason assigned is, that the statute gives no greater efficacy to registered deeds than they had before . It is true there are cases in the English reports where a deed, which is fraudulent in its creation, may become good by matter ex post facto ; and that may happen where the deed, though void as to certain persons on account of the fraud, is valid as between the parties. In such case, if either party make a conveyance to a person ignorant of the fraud, for a valuable consideration, the grantee will hold the lands purged of the fraud. But no title can be derived from the fraudulent source, after the .party, intended to be defrauded, *has once [*416 ] avoided the fraudulent conveyance by establishing and perfecting his own title; and this may be done by procuring his deed to be registered before there shall be a conveyance to an innocent person by a party to the fraud, or, if he be a creditor, by attaching the land and levying his execution upon it. In every case of fraud, the fraudulent grantee can convey as good a title as the fraudulent grantor might, but no better. Therefore, where the fraudulent grantor has already made a bona fide conveyance, which has been registered, he cannot afterwards, nor can his fraudulent grantee, convey any title, but their acts would be merely void. If the fraudulent conveyance from Bosworth to Cad.we.ll had been first made, the grantor, as well as the grantee, might afterwards have made a valid conveyance to an innocent purchaser; but, as the grantor had already made such conveyance to George Bosworth, which was registered within a reasonable time, the fraudulent parties had no title or authority loft. This is the full extent of the doctrine In the English books ; but the law, in this respect, has undergone considerable modification, in some of the United States, in favor of those persons who are intended to be defrauded. It has been decided, in Connecticut, that where a conveyance is made to defraud creditors, no subsequent bond fide purchaser, for a valuable consideration, and without notice of the fraud, can acquire any title from the fraudulent grantee, against the creditors of the fraudulent grantor . This'doctrine is certainly fraught with infinitely less mischief than the doctrine that a fraudulent grantee may convey a good title, although a bona fide conveyance from the grantor has been duly registered. In the latter case, the maxim of caveat emjptor ought to apply; and in all cases, perhaps, it would be more just and equitable that one claiming under a fraudulent grantee, whether with or without notice, should be compelled to resort to his covenants, than that a prior bond fide purchaser should be defrauded ; for if those who derive their title from a fraud- [ * 417 ] ulent source have *no other remedy than upon the covenants, the loss will ultimately fall where it ought.
    The finding of the jury that the conveyance to Cadwell was made and accepted for the purpose of defrauding and deceiving George Bosworth may present the subject in another view, perhaps no less favorable to the tenant. By the statute 27 Eliz. c. 4, it is provided, that “ every conveyance of lands made for the purpose and intent to defraud and deceive such persons as have purchased, or shall purchase the same lands, for good consideration, shall be deemed and taken as against them, and all persons lawfully claiming by, from, or under them, to be utterly “ void, frustrate, and of none effect.” This statute has been adopted here as a part of our common law, and none of its provisions are repugnant to any existing statute of the commonwealth. The verdict of the jury brings the case at bar exactly within the letter and spirit of the statute ; and the only question which can arise, is, whether the conveyance, which is declared to be utterly void and of none effect, as against George, Bo,sworth and those claiming under him, nevertheless may not have bo much force and validity remaining as to enable the fraudulent grantee to convey a good title, even after the persons, against whom the conveyance is pronounced void and of none effect, have done every thing which the law requires of them to perfect their title.
    Should the laws, made for the purpose of preventing fraudulent conveyances, receive the construction contended for by the demand-ant’s counsel, it would be better that they were repealed; for, instead of preventing fraud, they would be powerful engines for committing and protecting it. If an honest purchaser cannot avoid a fraudulent conveyance, by giving that notoriety to his own title for which the law has provided the means, it is, properly speaking, his own conveyance which is void as against the fraudulent one; because it would be in vain for him to attempt giving better notice of his title to all who may be * disposed to pur- [ * 418 ] chase, than by depositing his deed in the public registry. Even actual possession and occupation is no more, in any case, than presumptive notice; and, in the case at bar, the jury have found that the lands were wild, and that no part of them was under cultivation and improvement. In such case, therefore, George Bosworth could not have had an occupation which would have amoun' ed even to presumptive notice.
    It is believed, however, that the laws are not liable to the reproach which would be implied by the hypothesis, that the registration of a deed is not notice to all subsequent purchasers; but that, on the contrary, whenever a grantee shall procure his deed to be registered, there can be no subsequent conveyance of the same lands without notice in law.
    
      Lincoln, for the tenant.
    
      
       2 Mass. Rep. 596. —3 Mass. Rep. 573. -4 Mass. Rep. 68, 541, 637. —5 Mass. Rep. 438. —6 Mass. Rep 24, 487. —10 Mass. Rep. 60, 403. —11 Mass. Rep. 153. —3 Atk. 646 —1 Ves. 64. —Amb. 436. Cowp. 712. —1 Strange, 664. —10 Johns. 456.
    
    
      
       14 Mass. Rep. 206.
    
    
      
       4 Mass. Rep. 637. —8 Johns. 137.
    
    
      
       13 Mass. Rep. 371. —7 Mass. Rep. 14. —9 Mass. Rep. 161. -Cruise Tit. 32, c. 2, § 6, 22. —Do. c. 22, § 79.
    
    
      
      
        Shep. Touch. 226, 227. —Dyer, 218. —Wood’s Inst. 259. —Mod. 41. —Noy, 106,-Hob. 165. —Cro. Car. 110, 217. —Cro. Jac. 52, 408.—2 Inst 674.
    
    
      
      
        Cruise Dig tit. 32, chap. 21. —2 Mass. Rep. 433. —3 Mass. Rep. 573. —4 Mass. Rep, 68.
    
    
      
      
         See Con. Rep. 527 and the very able and learned opinion of Judge Reeves.
      
    
   Parker, C. J.

[After stating the facts found by the verdict or agreed by the pleadings.] At the time Cadwell took his deed from Samuel• Bosworth, he had full knowledge of the prior conveyance to George Bosworth; so that his title could not prevail against the prior deed, although not recorded when he took his conveyance; the transaction being clearly fraudulent between him and Samuel Bosworth. It is unnecessary to cite authorities to maintain this point. It has been repeatedly decided, and is well known as a rule of law, that a second purchaser shall not set up a title under a registered deed, against the first purchaser, whose deed was not registered, if he had knowledge of the prior conveyance. The cases cited in the argument put this in a clear point of view .

But Judd, when he purchased of Cadwell, did not know of the defect in his title; or that there was any thing in the conduct of his grantor tending to impeach his conveyance. This must be taken as a fact, because there is no averment in the plea in bar, of knowledge in Judd. He held the estate, then, under his conveyance from Cad-well, purged of the fraud, which vitiated it in the hands [*419] of * Cadwell; as the assignee, for valuable consideration and Iona fide, would hold an estate conveyed to his grantor to defeat creditors .

This principle is just; for the honest assignee finds a good subsisting title on record in his grantor, pays him the value of the land, and is wholly ignorant of any circumstances, which contradict the apparent fairness of the title. In such case, the negligence of the first purchaser is the cause of the difficulty ; and although he shall not suffer, when his negligence is fraudulently taken advantage of by a subsequent purchaser, yet when a third party claims the land, deriving his title from him who, in the public registry, appears to be the lawful owner, negligence ought to turn the scale against the party who was guilty of it. This principle was settled in the case of The State of Connecticut vs. Bradish.

But when the demandant took his deed from Judd, he knew that Judd’s grantor, Cadwell, had knowledge of the conveyance to George Bosworth, which preceded his in point of time; and the question is, whether the knowledge of this fact alone defeats the estate in his hands, which was valid in the hands of Judd.

This is a new question, but, we think, easily settled. Had the demandant, with the knowledge of the facts, purchased directly of Cadwell, he would have taken nothing by his deed. The title of Cadwell would not be aided by a purchase under such circumstances. But the estate was in Judd indefeasible, except by his own act; it would have descended to his heirs, or might have been taken by his creditors. George Bosworth had lost all right, by omitting to register his deed. We cannot see, then, that the knowledge of an antecedent fact, which had lost its effect upon the title of the parties, can be material. It furnishes no proof of fraud on the part of the demandant, and it has no bearing upon the state of the title. He knows that the title was once defective, in one of the persons under whom he claims; and he also knows that the de- [ * 420 ] feet * was cured, and the stain upon the title effaced. There seems to be no reason why, as he is a bond fide purchaser oí him who had an unimpeachable title, he should not have that title unimpeached in his hands.

Judgment for the demandant. 
      
       [In England, this is the rule in equity, but not at law. Doc, dem. Robinson, vs Allson 5 B. & Ald. 112. —Ed.]
     
      
      
        [Bean vs. Smith, 2 Mason, 252 : sed vide Preston vs. Crofut, 1 Con. Rep. 527 —Roberts vs. Anderson, 3 Johns. Ch. C. 371. —Ed.]
     