Kendall v. Lawrence

Shaw C. J. drew up the opinion of the Court. It appears by the case stated, that the defendant claims title to the one undivided half of the tract of woodland, which is the subject of this suit, under a deed executed by John W. Buttrick, whilst he was a minor, under twenty-one years of age. The plaintiff claims under an attachment of the same moiety, as the property of the same John W. Buttrick, made after the latter came to full age, and before he had done any act, after coming of age, either confirming or rescinding the conveyance to Lawrence, the defendant. Upon this evidence it' was ruled, that if Buttrick was a minor when he made his deed to the defendant, and if the plaintiff made an attachment, in other respects valid, before any confirmation made by the minor after coming of age, the attaching creditor would hold the land against the minor’s conveyance. This opinion was founded on the supposition, that as the conveyance of the minor was voidable, as he could disaffirm it when he came of age, and convey it to another by deed, and as an attachment and levy of execution, are in the nature of a statute conveyance, an attachment would have the effect to disaffirm the conveyance. But the Court are of opinion, and, in that opinion, upon a consideration of the authorities, I concur, that this direction was incorrect. The rule seems well established by decided cases, that the deed of a minor, conveying his land for a valuable consideration, is voidable and not void, that the right to avoid it on coming of age, is a personal privilege to the minor and his heirs, and that it cannot be avoided by an attachment, made by a creditor after the minor comes of age. Oliver v. Howdlet, 13 Mass. R. 237 ; Worcester v. Eaton, 13 Mass. R. 374; Whitney v. Dutch, 14 Mass. R. 460 ; Boston Bank v. Chamberlin, 15 Mass. R. 220 ; Nightingale v. Withington, 15 Mass. R. 271. It follows from this principle, that, as the minor had not disaffirmed his deed when the attachment was [544] made, the defendant, holding by a prior deed', if that deed was otherwise available, had the better title. The other material ground relied upon by the plaintiff is, that though the defendant held by a deed executed before the plaintiff’s attachment, yet it was not registered till long after that attachment, and therefore, by force of the statute, it cannot avail against the attachment. St. 1783, c. 37, § 4. In answer to this, the defendant insists on the well known implied exception long since engrafted upon the rule, that such unregistered deed is good and available against a subsequent purchaser or attaching creditor, who has notice of the existence and execution of the prior unregistered deed. Bigelow’s Dir gest, Conveyance, H.* And the defendant offered evidence tending to show, that the plaintiff, at the time of his attachment, had actual or constructive notice of the existence of the defendant’s prior deed. Much evidence was offered of acts of occupation and ownership, by the defendant, in the woodlot in question, in cutting and carrying away wood and timber, during two successive winters, which evidence is detailed at some length in the report. The Court are of opinion, that this was competent evidence of constructive notice, but that it is very slight, and has very little tendency to give notice to strangers, that the person thus cutting wood and timber, holds a deed of such lot, which deed .is not on record ; and such evidence is still more slight, when the party thus cutting wood and timber is the owner of an undivided moiety of the lot, that he holds an unregistered deed of the other moiety from his cotenant. One other point may be important, should the cause be again tried, and has therefore received the consideration of the Court. The defendant offered to give in evidence the admissions and declarations of one John Buttrick, on this ground. It was conceded, that the judgment recovered by the plaintiff against John W. Buttrick, was upon two notes, one payable to the plaintiff himself, the other to John Buttrick or order. This last was indorsed by John Buttrick to Kendall the plaintiff, on the day the suit was commenced, without consideration, to [545] enable Kendall to sue both notes in one action ; and if the plaintiff recovers, he will be a trustee for John Buttrick for such proportion of the land levied on, as Buttrick’s debt bears to Kendall’s. On the plaintiff’s objection to this evidence, it was ruled that evidence of declarations made by John But-trick, before the indorsement of his note to the plaintiff, were not admissible to affect the title of the plaintiff, Kendall. The Court are of opinion that this limitation should not have been imposed ; that the plaintiff having consented to adopt Buttrick’s note and unite it with his own in one writ, the judgment rendered thereon was composed of the two demands so blended, that it must either stand good for the whole or void for the whole. In this way Buttrick became a party in interest with the plaintiff, by his consent, their interests were united, and evidence which would defeat or postpone the attachment as against one, must necessarily affect the validity of the attachment, in the same manner, as it regards the other. Were it otherwise, a valid title under an unregistered deed might be defeated in favor of a subsequent attaching creditor, having full notice of such prior unregistered deed at the time of the attachment, contrary to the policy, and, under the Revised Statutes, to the express rule of law. There is no direct authority, and the point is not free from difficulty ; but, as the attachment ought not to avail in favor of any one, who has a direct interest in it, and in the land levied on under it, having such notice, as it cannot be avoided against one, without setting aside the attachment altogether as against a prior unregistered deed, the Court are of opinion, that the holder under such deed ought to be allowed to show the admissions and declarations of any one so directly interested in the attachment. It is analogous to the case where two or more are parties to the suit in which the attachment is made, and in that case the acts and declarations of either may be given in evidence, to affect the validity of the attachment. Verdict set aside and new trial granted. Footnotes [*] Now made an express exception by Revised Stat. c. 59, § 28.