
    Solomon Bond against Elisha Kibbe and Samuel Allen.
    Before eaution can be entered with the town-elerk, upon land conveyed by deed not acknowledged ; the grantee must have required the grantor, ami the grantor must have re-fused to acknowledge the deed- Caution having been duly entered, after such demand and refusal, thedeed though unacknowledged, may be given in evidence in an action of ejectment.
    THIS was an action of ejectment.
    
      Kibbe, one of the defendants, died pending the suit, and before this term. On the trial, Allen, the surviving defendant, admitted himself to be in possession; and the only question was that of title. .
    
      Daggett and H. Terry, for the plaintiff.
    
      Terry and S. Terry, for the defendant.
    The plaintiff claimed under Kibbe, the deceased defendant; and, to prove title, offered in evidence a deed from Kibbe, dated March 24, 1804, but which was not acknowledged, nor recorded.
    
    The defendants’ counsel objected to the admission of this instrument in evidence, on the ground that it conveyed no title.
    The plaintiff’s counsel then produced a copy of a caveat from the town records, duly certified by the town clerk, dated April 4, 1804, by which the plaintiff cautioned all persons not to purchase the land in question, as he claimed it by virtue of a deed from, Kibbe, not acknowledged. This caveat being read to the court.
    
      The counsel for the defendant still objected to this deed’s going to the jury, on the following grounds:
    1. That in order to render the caution'effective, Kibbe, the grantor, must, before such caution was entered, have been required, by Bond, the grantee, to acknowledge the deed, and the grantor must have refused to acknowledge it. But no such demand and refusal having been proved., the deed rests on no better ground, as evidence of title, than it would, if no caveat had been entered.
    2. If such demand and refusal had been proved, stili the deed would not be evidence in an action of ejectment. The object of caution is. merely to lay a foundation for equitable process, to compel the grantor or his heirs, to acknowledge the deed. The decree of the court ordering such acknowledgment to be made, being upon the town records, where the land lies, the title of the grantee would be comp'fctcd, though the grantor should persist in refusing to acknowledge the deed.
    3. If the deed, with the aid of caution duly entered, may be used as evidence of title in actions at law, yet it can be so used in actions between the grantor and grantee only; and therefore cannot be given in evidence, in this case, against the defendant, Allen, who was not a party to the deed.
    By ths Couht. The statute, which provides that caution may be entered, authorizes such proceeding only in cases where the grantor has been required, by the grantee, to acknowledge the deed, and the grantor has refused. In order, therefore, that caution may have any effect upon this deed, such demand and refusal must first be proved. That being done, the caution shall secure the interest of the grantee until a legal trial hath passed unto a final issue according- to law.” The legal trial here spoken of must mean a trial at law upon the title; and therefore the deed may go to the jury in an action of ejectment. As to the question whether the deed may be given in evidence in this action, agaimt Allen, the court are of opinion, that the caution having been duly entered, the interest in the grantee is secured; and consequently, the deed is good against a stranger.
    The counsel for the plaintiff then offered to prove to the court, that Kibbe, the grantor, had said, that he would not acknowledge the deed.
    To this evidence the defendants’ counsel objected; because there must be an actual refusal upon demand made. Kibbe might have altered his determination, upon being required by Bond to acknowledge the deed.
    
      
      
        Vide “ An act concerning town clerk’s office and duty,” par. 4. p, 417. edit. 1796.
    
   By the Court.

The evide^pe offered is inadmissible. There must be proof that Bond required Kibbe to acknowledge the deed, and that Kibbe, upon being so required, refused to acknowledge it.

No such proof being offered, the court ordered the case to be called; and the plaintiff thereupon was

Nonsuited.  