
    Nathaniel Cushing versus Joseph Hurd Junior.
    A mortgagee may attach and levy on the mortgaged land, for a debt not secured by the mortgage.
    Where one of two creditors of an insolvent debtor, knowing only that a deed was making to convey the debtor’s land to the other creditor, attached the land before the deed was recorded, though not until after it was executed and delivered, an extent in pursuance of the attachment prevailed against the deed.
    Writ of entry. Trial before Wilde J., upon the general ’ssue.
    This was a contest between two creditors of T. Cushing, who failed in business at Boston on the 8th of May, 1818.
    The demandant’s title was derived from T. Cushing by a deed of mortgage executed and acknowledged on the 8th of May, 1818, and recorded before sunrise on the 9th.
    The tenant’s title was derived from T. Cushing by virtue of a levy of an execution, in pursuance of an attachment made on the 9th of May, 1818, at 2 o’clock A. M. The demandant admitted that the attachment was made before his deed was recorded, but he contended that the tenant had notice of the deed before he sent his writ from Boston to be served by attaching the land in question ; or if not, that as the demandant had used due diligence to send his deed to the register’s office to be recorded, the deed must be preferred to the levy.
    
      Oct. 26th
    The jury were instructed, that if they should find by the evidence, that the tenant had notice of the deed after it was executed and delivered, and before he sent away his writ of attachment, they should return a verdict for the demandant; but that if they should believe, that the notice testified to was before the deed was completed and signed, although the tenant had notice that, it was making, they should then find for the tenant; and they returned a verdict accordingly for the tenant.
    It was agreed that T. Cushing’s title was derived from one Thacher, first, by a deed of mortgage dated in 1814, and secondly, by his extending an execution on the land.
    The demandant produced an assignment, made to him by T. Cushing, dated August 10, 1820, of the mortgage last mentioned, and contended that the tenant’s attachment and levy could not defeat the title of the demandant as assignee of this mortgage, and that the tenant could not by attachment and levy acquire any title under the mortgage. But the judge was of opinion, that T. Cushing, by his levy of hi s' execution after his mortgage, obtained an absolute estate, which was liable to be attached and taken on execution; and he ruled accordingly.
    If on these facts the demandant was entitled to recover, a new trial was to be granted ; but otherwise, judgment was to be entered for the tenant.
    
      L. Shaw and L. Williams, for the demandant,
    contended that T. Cushing had no estate in the land which could be attached ; for he had not foreclosed Thacher’s equity of redemption ; Eaton v. Whiting, 3 Pick. 484 ; and being the mortgagee, he could not levy on the land, even for a debt not secured by the mortgage ; or if tlat were lawful, still he could not overlook the mortgage, as a stranger might, and extend his execution on the land itself, but the levy should have been by a sale of the equity of redemption.
    
      But they relied chiefly on the point, that supposing T. Cushing had an absolute estate, liable to attachment, the demandant had a better title under his deed, "than the tenant under his attachment and extent. Unquestionably a deed duly executed and delivered passes the estate as against the grantor and his heirs, and all other persons having notice, either actual or constructive. The object of registry is mere ly to give notice. No time is fixed by statute for recording a deed, but the law allows the grantee a reasonable time for that purpose; and here the demandant used extraordinary diligence. Farnsworth v. Childs, 4 Mass. R. 641. The estate passed immediately on the delivery of the deed; 3 Mass. R. 573; Marshall v. Fiske, 6 Mass. R. 24; that however is unimportant, for the registry relates back to the delivery, and defeats all intermediate conveyances with notice. Pray v. Pierce, 7 Mass. R. 381; Dymmock’s case, Cro. Jac. 408 ; 2 Inst. 674. It cannot be doubted, but that the tenant had full assurance that the deed was executed and delivered before his attachment was made. If a party has such general information as should put him on his guard, it is sufficient notice. The tenant, with the knowledge he possessed, would not have purchased ; and if so, he had all the notice which could be beneficial to him. He has lost nothing in consequence of the deed’s not being on record, for he had the same opportunity to secure his debt by taking other property, as he would have had if the deed had been recorded. It may be said that the intent to complete a deed may be given up ; but when we show such intent to have been afterwards carried into execution, the knowledge of the intent is sufficient to operate as notice. The case of M'Mechan v. Griffing, 3 Pick. 149, [2d ed. 154, 157, notes,] supports several of the foregoing positions.
    /S. D. Ward, for the tenant,
    observed that it did not appear by the report of the judge, what was the consideration of the judgment in the suit of T. Cushing against Thacher, and to show that a mortgagee may extend on the mortgaged estate for a debt not secured by the mortgage, he cited Atkins v. Sawyer, 1 Pick. 356, [2d ed. 357, n. 1 ;] White v. Bond, 16 Mass. R. 400. As Thacher has acquiesced in the extent T. Cushing and those claiming under him are estopped to question its legality.
    
      March term 1837, in Suffolk.
    
    In cases where the deed of a subsequent purchaser, recorded first, has been held invalid, die Court have proceeded on the ground of fraud. The parties in this suit, being both creditors of T. Cushing, may be considered as having alike an equitable claim upon his property, and the tenant knowing only that he was about preferring the demandant, had a right to endeavour to procure a legal title, although he might think there was but a bare possibility of succeeding ; and notwithstanding the demandant used due diligence, yet as the tenant used equal diligence and obtained a title first, he must prevail. Brown v. Maine Bank, 11 Mass. R. 158; Trull v. Bigelow, 16 Mass. R. 406; Warden v. Adams, 15 Mass. R. 233; Priest v. Rice, 1 Pick. 168, [2d ed. 169, n. 1.]
    
      Shaio, in reply, said that to make this case parallel to Warden v. Adams, the tenant’s attachment ought to have been made before the deed to the demandant was delivered.
   Parker C. J.

delivered the opinion of the Court. Supposing that Thomas Cushing acquired a title to this laud by the levy of his execution thereon, he having before a mortgage of the same land from Thacher the former owner, the question is, which of Cushing’s two creditors, the demandant or the tenant in this action, has acquired a legal title against the other. The demandant holds under a mortgage deed from Cushing, and the tenant under a levy of an execution. The premises thus levied on had been attached, and that attachment, if good at the time, continued in force until the levy. It is agreed that the attachment was made before the deed was recorded, but not until after it was executed and delivered. The case then turns upon the knowledge of the tenant, of a title in the demandant, when he caused his attachment to be made. If when he set out to make this attachment, the title to the land had passed from Cushing to the demandant by an actual delivery of the deed, then to intercept him by an attachment before he could, with all due diligence, procure a registry of his deed, might, according to the case of Priest v. Rice, be fraudulent, and his attachment would fail. But here the deed was only about being made, and this fact the tenant knew; his case therefore is not determined by Priest v Rice He had a right to try his speed in this case, as much as if the demandant had been about obtaining his security by attachment, and while his writ was preparing, the tenant had been more expeditious and had procured the first attachment; and there is no more appearance of fraud, than there would have been if the demandant, knowing that the defendant was preparing to attach, had procured a deed and caused it to be recorded before the writ could be served.* The case of Priest v. Rice goes upon the ground, that a complete title had vested in the grantee against the grantor and his heirs, which was fully known to Rice, the attaching creditor. It was considered, that the effect of this knowledge upon Rice’s attachment, was' the same as it would have been upon a title acquired by a deed made by the debtor, and registered before the prior deed to the demandant.

The principle which is to govern this case, was settled in Warden v. Adams, 15 Mass. R. 233. The demandant Warden, and Hamilton, the lessor of the tenant Adams, were both creditors of Earle, who he.ld a mortgage of the land of Adams. Two of the six notes which were secured by the mortgage, were intended to be assigned to Warden, and also the mortgage deed ; all of which were put into the hands of a scrivener for the purpose of having the assignment written. One of the notes had been assigned to Hamilton, who, knowing of the intention of Earle to make the assignment of the mortgage to Warden, and knowing that the papers were lodged with a scrivener for that purpose, procured an assignment on a sepárate paper, before the transaction was complete in favor of Warden. It was held that Hamilton had lawful right, by his diligence, to supplant Warden, and his right to the mortgage was established. It is not therefore the knowledge of an intent to convey or attach, which will prevent the legal effect of an attachment by another creditor, which gets to be first in point of time, but the knowledge of an actual passing of the title, which is complete against every one with notice, whether by registry or personal.

It has been argued, that he who has fairly obtained a deed from a failing debtor, should have reasonable time to get his deed recorded ; but there is nothing to warrant this position against subsequently attaching creditors, or subsequent purchasers, without notice. If such were the law, the intention of the registry act would fail. The reasonable time, which has been mentioned in some of the cases, is applicable only to cases of constructive fraud which may be rebutted by such loches as would give ground to believe that the bargain had been rescinded, there being no registry of the deed, and no change of possession in the land conveyed.

Judgment for the tenant. 
      
       See M'Gregor v. Brown, 5 Pick. 174,175.
     
      
       See Brackett v. Waite, 6 Vermont R. 411; Denton v. Perry, 5 Vermont R. 382; M'Mechan v. Griffin, 3 Pick. (2nd ed.) 154, 157, notes, and cases there collected; Warden v. Adams, 15 Mass. R. (Rand’s ed.) 237, n. (b.) Stewart v. Thompson, 3 Vermont R. 264
     
      
       See 4 Kent’s Comm. (3d ed.) 457.
     