Tomlinson v. Monmouth Mutual Fire Insurance

The opinion of the Court was drawn up by Appleton, J. It is enacted by R. S., 1840, c. 125, § 1, that an absolute conveyance, “with a separate instrument of defeasance of the same date and executed at the same time, shall constitute a mortgage.” It is further enacted, c. 91, § 21, that a deed “purporting to convey an absolute estate of any kind in lands, which is intended to be defeasible by bond or any other instrument of defeasance, shall not be defeated by means of such bond or other instrument against any other than the maker of such defeasance, his heirs or devisors, unless the instrument of de [237] feasance shall have been duly recorded in the registry of deeds in which the deed referred to in the bond or defeasance shall have been recorded.” The deed of the plaintiff to Averill constitutes an alienation of the premises insured. The defeasance executed at the. same time was not recorded. By the express words of the statute, the deed is not to be defeated unless the instrument of defeasance is recorded. The title to the land remained in Averill of record, and he might convey a good title, or it might be attached as his property. The plaintiff, by neglecting to record Averill’s bond, put it out of the power of the defendants to perfect their lien by recording the same. The registry of deed shows an alienation0of record, and the statute provides that it shall not be defeated by reason of any unrecorded bond or other instrument of defeasance. The policy, thus, by its terms, becomes “ absolutely void,” as between these parties. Plaintiff nonsuit. Tenney, O. J., and Rice, Cutting, May, and Goodenow, JJ., concurred.