De Witt v. Moulton

The opinion of tho Court was by Weston C. J. The plaintiff derives title, from Elisha Foster, whose right to the property in question, is based upon a deed from Benjamin Morgridge. That deed was recorded, without being acknowledged. We are satisfied, that it derived no validity from the registry. That acknowledged deeds only are entitled to be recorded, is very clearly implied from the stat. of 1821, c. 36, §> 2, which makes a copy of a deed not acknowledged, left in the register’s office, a caution to all persons against purchasing, or levying upon land so conveyed, for the space of forty days. And by the first section of the same statute, a deed is to have no operation, except against the grantor and his heirs only, unless it is both acknowledged and recorded. That the registry of a deed, without acknowledgment, is illegal, and confers no priority and gives no rights, was decided in Sigourney v. Larned, 10 Pick. 72, under a statute, of which the one before cited is a copy. The [420] registry not being legally made, would not even be constructive notice to third persons. McNeil v. Magee & al. 5 Mason, 244. The deed to Foster, therefore, could not affect the rights- of the defendant, and ought not to have been received in evidence for that purpose. We do not find the verdict supported by other parts of the testimony, if admissible. If Foster was entitled to the frame as mortgagee, the mortgagor might lawfully sell it with his consent, which was given. And the title being legally conveyed in virtue of it, he could not vacate the sale by revoking his consent. He derived no rights from the repurchase; it being a contract entered into with the vendee, .after he had legally parted with his interest to Copeland, under whom the defendant justifies. Exceptions sustained.