Coffin v. Ray

Shaw, C. J. The only question left to the jury was, whether Coffin, the demandant, had notice of the prior unregistered deed of Isaiah Ray to the tenant and his wife, at the time of his attachment on mesne process, in December, 1836 ; and the jury found that he had not The facts then to be considered are, [214] that Isaiah Ray, from whom both parties claim, being seized in fee, conveyed to his brother and wife, for their lives, which deed was not recorded till after the demandant’s attachment. Isaiah Ray, the father, then conveyed to Isaiah C. Ray, the son, in fee, making no reservation, and not mentioning the former deed; but Laiah C. Ray knew of the prior unregistered deed. The demandant, a creditor, attached the estate thus appearing by the record to belong to his debtor in fee, without notice of the prior unregistered deed ; but no notice of his attachment was given at the clerk’s office, pursuant to Rev. Sts. c. 90, § 28. He afterwards levied his execution on the same land, having notice, at the time of his levy, of such prior deed. The question was, whether he could hold the land. In the first place, we may lay out of the case the last mentioned circumstance, to wit, that notice of the attachment was not given at the clerk’s office, pursuant to the statute. The sole object of this provision is to give notice to after purchasers and attaching creditors. The provision is, that no attachment on mesne process shall be valid against any subsequent attaching creditor, or against any person who shall afterwards purchase the same for a valuable consideration, and in good faith, unless, &c; The validity of the attachment is not affected by this provision, except as against after purchasers and attaching creditors. As the tenant claims under a previous deed, he is not within the exception ; and the validity of the demandant’s attachment is not affected by this provision. The general question then recurs, whether the knowledge of Isaiah C. Ray could affect the rights of his creditor, who attached without notice of the first conveyance ; and the court are of opinion, that it could not. The attachment of real estate is considered as in the nature of a purchase, and the attaching creditor affected with notice of a prior conveyance, in the same manner as a purchaser. Priest v. Rice, 1 Pick. 164. But the exception in the statute, in regard to unrecorded conveyances, Rev. Sts. c. 59, § 28, of persons having actual notice thereof, is strictly personal; and although a second grantee could take such estat 3, as against the prior grantee, because he had actual [215] notice of the prior deed, yet if through him a title passes to a third person, who has no such notice, the latter will not be affected by it. Somes v. Brewer, 2 Pick. 184. Had the plaintiff taken by deed of Isaiah C. Ray, without notice of the prior conveyance to Peter, it seems very clear, upon these principles, that he would hold the estate. The attachment of real estate being deemed to stand in the nature of a purchase, and the attaching creditor being affected by actual notice, as a purchaser, the question is, at what time the purchase shall be deemed to be made. We think this is an swered by the Rev. Sts. c. 90, § 23, which provide, that “ all real estates that are liable to be taken in execution, may be attached upon the original writ, and held as security to satisfy suck judgment as the plaintiff may recover.” If then judgment is recovered and execution levied, the whole title acquired by the attachment and levy must be considered as taking effect at the time of the attachment. The subsequent proceedings relate back to that time. The attachment creates a lien or charge upon the land, which constitutes a complete title, if perfected by a subsequent judgment recovered in the same suit, and a seasonable levy of the execution issued on it. The court are therefore of opinion, that the point of time, before which notice of a prior unrecorded deed would affect the attaching creditor, is the attachment, and not the time of the levy ; and as the demandant had no notice of the tenant’s prior deed, at the time of his attachment, he is entitled to hold the land. Judgment on the verdict for the demandant.