
    *James Marshall versus Benjamin Fisk.
    By. a conveyance of land in fee, the estate passes presently to the grantee, and does not remain in the grantor until the deed be acknowledged and recorded.
    The cancelling of such a deed by the grantor, with the consent of the grantee, and a second conveyance to a third person, having knowledge of the previous conveyance, shall not defeat an intermediate attachment made by a creditor of the first grantee.
    This was an action of trespass guare clausum fregit. The defendant pleaded in bar, that Jonathan Williams and Charles Williams, at the time when, &c., were seised in fee simple of an undivided moiety of the locus in quo, and that he, as the servant of the said Jonathan and Charles, and by their command, entered, &c-The plaintiff traversed that seisin, and tendered an issue to the country, which was joined ; and upon a trial before Parker, J., at the last November term in this county, a verdict was found for the defendant.
    From the report of the judge, who sat at the trial, the following facts appear: —
    In the year 1794 or 1795, one Adams, being seised in fee of the close, executed a deed purporting to convey the same in fee to Spaulding and Foster in equal moieties. They paid a part of the purchase money to Adams, and gave him a promissory note for the remainder, and entered and took possession of the close under that deed, and continued in possession until the 9th of September, 1805.
    On the 17th of July, 1805, Jonathan and Charles Williams, being creditors of Foster, (one of the purchasers, and a tenant in possession,) caused one moiety to be duly attached on their writ against Foster. Having prosecuted their suit to final judgment and execution, they, in March, 1806, and within thirty days after the rendition of judgment, caused their execution to be duly extended on the moiety attached, and seisin thereof was delivered to them.
    To defeat this title in J. and C. Williams, the plaintiff proved that the note given by Spaulding and Foster for the remainder of the purchase money, not being paid, was assigned to one Prescott, and that in June, 1805, he demanded payment or security from the promisors. As security, they delivered Adams’s deed of conveyance to them, which was not acknowledged nor recorded to [ * 25 ] Prescott, * and authorized him to sell the land, and on the sale to return their deed to Adams, and take from him a new deed to the purchaser, Prescott agreeing to account with them for the proceeds of the sale after their note was paid. In September, 1805, Prescott delivered to Adams his deed to Spaulding and Poster, and received from him a deed duly executed, purporting to convey the land to Prescott in fee, which deed was acknowledged and recorded, Adams, Prescott, and Foster, well know ing of the prior attachment of J. and C. Williams.
    
    The judge directed the jury that, by the deed from Adams to Spaulding and Foster, the land passed to the latter, notwithstanding the deed was not acknowledged or recorded; and the grantees having entered under the deed, and continued in possession until the attachment of J. and C. Williams, that attachment could not be defeated by a delivery of their deed from Adams over to Prescott, either before or after the attachment; that the fee of the moiety of the land was in Foster at the time of the attachment, so that the levying of the execution gave a seisin to the creditors ; that the taking of a new deed by Prescott from Adams, or the surrender of the old one, could not prejudice the title of the creditors under the execution, especially as Prescott, Foster, and Adams, all knew, at the time of this transaction, that Foster’s interest in the land was attached.
    The plaintiff moved for a new trial for the misdirection to the jury of the judge who presided in the trial.
    
      Stearns, in support of the motion for a new trial, contended that nothing passed by Adams’s deed to Spaulding and Foster, for want of acknowledgment and registry, and therefore paroi evidence ought not to have been received. For this position he relied on the provincial statute of 9 W. 3, c. 7, revised by the statute of 1783, c. 37, the construction of which is to be made by analogy to the established modes of conveying real estate in England.
    
    * Livery and seisin, if ever in use in the colony, were [ * 26 J neither generally nor long in use; and as the statute of enrolments was held not to extend to this country, the delivery of a deed of bargain and sale was sufficient to convey real estate until the colonial ordinance of 1641, and for most purposes until that of 1651.
    The principal object of the colonial ordinances, and of the provincial and revised statutes, was the same as the English statute of enrolments, viz., to prevent fraud by compelling purchasers of land to record their titles, and thus give notoriety to the transfer of real estate. And if a time had been limited for recording deeds under our statute, the English decisions would have been a guide to ours. In all other respects, it is apprehended their construction must be the same.
    When the deed is enrolled, it has relation back to the delivery, for the benefit of the bargainee, to avoid all mesne encumbrances. But the fee does not pass by the delivery of the deed.  So, under our statute, though the deed, without acknowledging and recording, is sufficient to hold the land against the grantor and hia heirs, it is not because the fee passed from the grantor by the delivery, but because he is estopped by his deed to claim the fee against the bargainee. If the fee passed by the delivery, then a second deed to a fair purchaser without notice, and first acknowledged and recorded, could convey nothing.
    But allowing that the delivery of a deed of bargain and sale raised a use which was immediately executed by the statute, still the use would not be absolute, but determinable on the event of six months passing before enrolment; and by analogy here, upon the event of the deed’s being cancelled or destroyed, so that it never could be recorded.
    As in England, without any act done, by the mere omission to enrol the deed, the use to the bargainee determines, and a use in fee results to the bargainor, so, under our statute, the use, if executed in the bargainee by the delivery of the deed, must, [ *27 ] by his destroying that deed, and * yielding the possession to the bargainor, be determined, and a use result to the bargainor.
    The words of the statute are very strong, and, unless its provisions are conformed to, the conveyance i,$ not good, except against the grantor and his heirs, unless in cases of actual fraud, or prior notice, which is constructive fraud. The present case is not within the exception, which establishes a deed against the grantor and his heirs; and it is believed that fraud will not be pretended.
    When Adams first sold the land to Spaulding and Foster, as he received but part of the consideration in money, and their notes for the residue, instead of giving a mortgage, they kept their deed un recorded for Adams’s security, and when Prescott became the holder of the same notes, being still unable to discharge them, they deposited the deed with him, agreeing that Adams might cancel it, and make a new one to Prescott or a purchaser under him. They all considered the title as still in Adams as a trustee, and intended it should so continue until he should realize the value. This is a very usual mode of transacting affairs of this kind among unskilful persons in the country.
    It was not fraudulent in Spaulding and Foster to omit recording their deed, when they had agreed that it should not be done until Adams was paid. And it would have been a gross fraud upon this latter, if they had voluntarily subjected this land, thus situated, to the payment of the debt of one of them to Williams.
    
    Great inconvenience would follow from determining that land may be attached by a creditor of the bargainee the moment the deed is executed. For where the agreement was, that a mortgage should be given to secure the purchase money, as there must be a moment at least between the delivery of the deed to the purchaser, and his delivering the mortgage, a creditor might seize that moment to attach the land, and thus deprive the grantor of his whole property.
    * The decisions on our statutes have turned upon the [ * 28 J priority of the recording, or the question of notice, or both, and have been made after both deeds had been recorded. The first point has no relation to the present case, the deed having been destroyed without recording. And as to the attachment, notice is immaterial. It is like the cases, under the 27 Eliz. c. 4, of voluntary conveyances to deceive purchasers. If the second purchaser knows of the first conveyance, he also knows that it is fraudulent by the statute, and therefore void.  So here, if Prescott, who was a creditor, knew of the attachment by Williams, he also knew that Spaulding and Foster had surrendered the possession, and given up their deed, according to the original understanding of the parties, and therefore considered the attachment void.
    But if the conveyance to Prescott had been fraudulent, that would not avail the defendant; for fraud can only defeat the fraudulent act; it cannot establish a defective title. To avail the defendant, the deed to Prescott must not only be void itself, — it must give a fee to Foster without any legal conveyance. And even if the deed to Prescott had been fraudulent, so that he could not avail himself of it, a subsequent conveyance to the plaintiff without notice would purge the fraud. 
    
    Our statute expressly saves the dower of wives in all lands taken fron their husbands by execution. In this case, then, Foster’s wife will be entitled to her dower in this land in virtue of the extent of Williams's execution, or the right of the latter is more perfect and extensive than it would have been if the first deed had been recorded.
    It will be noticed by the Court that here are no exclusively merl torious claims on the part of the attaching creditor. Prescott’s claim was the original purchase money of this very land. And it is surely as equitable, to say the least, that this land should go to pay for itself, as that it should be appropriated to pay another creditor.
    [ * 29 ] * On the whole, it is submitted to the Court, that there was at the time of the levy no such estate in Foster as could support it; and that there are not in the case any such grounds of fraud, as can authorize the Court to dispense with the requisitions of the statute.
    
      Locke, of counsel for the defendant,
    relied that the merits were so strong and so apparent on his side, as to make it unnecessary to go into much argument in the defence, notwithstanding the display of ingenuity that had been made by the counsel for the plaintiff. He thought it very clear that Adams by his first deed divested hirhself of all title to the land, and of consequence that nothing passed from him by his deed to Prescott. The extent of the execution referred back to the original attachment, which was matter of record, and of public notoriety, before the deed to Spaulding and Foster was cancelled, and the new deed made to Prescott; in which last also it appears a secret trust for the benefit of Spaulding and Foster was reserved.
    The cause stood continued nisi for advisement; and at the next March term in Suffolk, the opinion of the Court was delivered by
    
      
      
        4 Co. 70, 71. — Owen, 150. — Shep. Touch. 224. — 1 Roll. R. 425
    
    
      
       5 Co. 60. — Cowp. 711, 712. — Roberts on Fraudulent Conveyances, 16.
    
    
      
       1 Sid. 134.
    
   Parsons, C. J.

Two objections have been made to the direction of the judge, before whom this cause was tried ; — that the deed from Adams to Spaulding and Foster, not having been acknowledged nor recorded, no estate passed by it; and if any estate passed, it must have been by way of use, which was determined by the cancelling of the deed by the grantor on its redelivery to him.

The first objection was endeavored to be supported by the fourth section of the statute of 1783, c. 37, § 4. By this section it is enacted “ that all conveyances of land signed and sealed by the grantor, having right to convey, acknowledged by him before a justice of the peace, and recorded in the registry of the county where the land lies, shall be valid to pass the same, without any other act or ceremony in the law whatever ; and that no convey- [ *30 ] anee *of a freehold in, or lease for a longer term than seven years of any land, shall be good and effectual in the .aw to hold such land against any person but the grantor and his heirs, unless the deed of conveyance be acknowledged and recorded as aforesaid.”

Hence it has been argued, that the defendant’s title by execu tian depending on Adams’s deed to the debtors, he cannot be in a better situation than those debtors ; and that their deed from Adams uot being recorded, although they might hold the land against him, yet they cannot hold it against Prescott, who is a purchaser under Adams.

The effect of this argument must depend on the construction of our statute of enrolments, above referred to. -A conveyance by deed of feoffment at common law must be followed by the ceremony of livery of seisin, as an act of notoriety to the freeholders of the county. To give more effectual public notice of the sale of land by deed, our statute requires the deed to be recorded ; and, as evidence to the register that the conveyance, as the deed of the party, is entitled to be registered, a justice of the peace generally must certify the acknowledgment of the grantor.

But the notice by the registry is not in all cases indispensable, where it appears, or may be presumed, that the second purchaser had knowledge of the prior conveyance. This rule has been established to prevent fraud, and as applying to cases not within the intent of the statute. Thus, if a second purchaser has had notice of the prior conveyance, notice to him by recording the deed is unnecessary, and the second conveyance is fraudulent. So, if the first purchaser enter under his deed not recorded, and, while he is in the actual and open possession, the second conveyance is executed, his open and notorious possession is such presumptive evidence of his prior conveyance, that he shall hold against the second purchaser, whose deed shall be deemed fraudulent. And upon this principle the statute provides, that a purchaser by a deed not recorded shall * hold against the grantor and his heirs; [ * 31 ] because the grantor must be conusant of his own deed, and his heirs are bound by this act of their ancestor.

Upon this view of the statute, it is manifest that the estate described in the instrument of conveyance passes on the execution of the deed, and does not remain in the grantor, until the deed be registered. The evidence of notoriety resulting from the enrolment, which is substituted in the place of livery of seisin, is not required against either the grantor or his heirs, or against a second purchaser having actual or presumptive notice of the former conveyance, but against him who has no such notice.

Now, from the report it appears that Prescott, Adams, and Foster, had knowledge of the conveyance by Adams to the judgment debt- or, and of the attachment of Foster’s moiety by Williams; the attempt, therefore, to defeat this attachment, by delivering up the deed to A.dams, and procuring from him a deed directly to Prescott, was a fraud on tire attaching creditor, and as to him the second deed was also fraudulent and void ; as, upon a sound analogy, the attachment must be considered as having the effect of a prior purchase, of which Prescott had notice previously to the conveyance to him.

The second objection to the judge’s direction is, that the estate, which passed by Adams’s deed to Spaulding and Foster, was determined by the cancelling that deed, as the estate passed by way of use.

It does not appear to be material, whether the estate passed di rectly, as the effect of a feoffment, or by way of use, to which the possession was transferred; if, in fact, the estate was vested in Spaulding and Foster upon their actually entering, under Adams’s deed to them, as we are satisfied it was.

The statute of uses being in force in England when our ancestors came here, they brought it with them, as an existing modification of the common law, and it has always been con- [ * 32 ] sidered a part of our law. Conveyances of lands * deriving their effect from the provisions of that statute are consequently legal in this state, as well as conveyances at common law. But by force of the statute of 1784, c. 37, conveyances by deed acknowledged and recorded, made by grantors having good right to convey, may have the effect of feoffments, without an actual entry of the grantee; and every other species of conveyance must by that statute be acknowledged and recorded, to entitle the grantee to hold the estate conveyed against any person not having actual or presumptive notice of the conveyance, or not being an heir of the grantor.

A conveyance of land by deed may here be considered as any species of conveyance necessary to effect the intent of the parties to the deed, and not repugnant to the terms of it. As, by the statute of uses, a use cannot be limited on a use, so an estate cannot by bargain and sale be conveyed to one person to the use of another, for only a use passes to the grantee ; but in this state a deed purporting to be a bargain and sale to A and his heirs, to the use of B and his heirs, has been holden, in the case of Thatcher vs. Gill, to be a feoffment, bv which A took the estate directly, and not by way of use, and that the estate passed to B by way of use, by virtue of the statute of uses.

So, in this case, the conveyance by Adams to Spaulding and Foster, and their entry under it, may well be considered as having the effect of a feoffment, with respect to the grantor and his heirs, and to all persons having notice of the conveyance.

But in whatever way tire estate passed from Adams, it was a vested estate in Spaulding and Foster, and could not be divested by cancelling the deed from Adams. Foster therefore continued seised of his moiety, when it was taken on the execution of Williams against him ; because the second conveyance by Adams to Prescott, being fraudulent, is void as to the attaching creditors, and because the cancelling of AdamPs first deed did not divest * Foster of his moiety conveyed by it. By the extent of [ * 33 ] the execution, the attaching creditors became seised, and the defendant might well justify his entry by their command.

We are therefore satisfied that the direction of the judge was right; and the defendant must have judgment on the verdict. 
      
      
        [Adams vs. Cuddy, 13 Pick. 460. — Cushing vs. Hurd, 4 Pick. 253. — McMecham vs. Griffing, 3 Pick. 149. — Warden vs. Adams, 15 Mass. 233. — Farnsworth vs. Child, 4 Mass. 634. — Davis vs. Blunt, post, 487. And an attaching creditor has been regarded in the same light as a bond fide purchaser. Sigourney vs. Learned, 10 Pick. 72. — Clark vs. Jenkins, 5 Pick. 280. — Hurd vs. Cushing & Al, 7 Pick. 169. — Priest vs. Rice, 1 Pick. 169. But why should such creditor, in the absence of fraud, acquire, by attachment, a right where his debtor had none ?
      Before the Revised Statutes, by which the question is put at rest, (c. 59, § 28,) it might have been said, with some reason, that the decisions of the court, before cited, proceed upon a mistaken application of the law of courts of equity to suits at the common law. For, by the terms of the act, knowledge of the prior unrecorded con* veyance was a circumstance wholly immaterial. Doe, on dem. Robinson, vs. Alsop% 5 8. & Aid. 142. — Ed.]
     
      
      
        Nelthrop & Farrington vs. Dorrington, 2 Lex. 113.— Woodward vs. Aston, 1 Vent. 297. —Leech vs. Leech, 2 Ch. Rep. 100. — Lady Hudson’s Case, 2 Vern 476.
     
      
      
        [Bottsford vs. Morehead, 4 Con. 550. — Gilbert vs. Bulkley, 5 Con. 262. — Hatch vs. Hatch, 9 Mass. 311. — Sed vide Holbrook vs. Tirrell, 9 Pick. 106. — Commonwealth vs. Dudley, 10 Mass. 403. — Dana vs. Newhall, 10 Mass. 498. — Ed.]
     