Clark v. Watson

Holmes, J. The defendants had notice of the plaintiff’s interest in the land in Lynn before the first attachment was made upon it. Shaw v. Spencer, 100 Mass. 382. Faxon v. Folvey, 110 Mass. 392, 395. As against the defendants, therefore, the land was not subject to attachment. Cowley v. McLaughlin, ante, 181. Prout v. Root, 116 Mass. 410, 412. Newhall v. Burt, 7 Pick. 157. And there is no ground for refusing the plaintiff equitable relief. The fact that the plaintiff meant to keep his mortgage to Nugent secret, for the sake of his credit, was not a fraud, and, if it had been, it would not have affected his rights as against a creditor whom he informed of the true nature of the transaction. Nugent, who held the registry title, did not [251] dispute that the deed to him, though absolute in form, was in fact a mortgage, and signed a memorandum to that effect. Therefore, Hassam v. Barrett, 115 Mass. 256, cited for the defendants, has no application. Tne defendants had no notice of the plaintiff’s interest in the Grantville land, so that the levy of the first execution on that was valid. M’Mechan v. Griffing, 3 Pick. 149. Pomroy v. Stevens, 11 Met. 244, 247. No question is raised as to the second executions, because the first will exhaust the property. Of course, that upon the land in Lynn can stand no better than the first. On the other hand, there was no new fact to charge the defendants with notice as to the Grantville land, except that the plaintiff had recorded a declaration, signed by himself, that his previously executed and recorded deeds to Nugent were given for security only. He did not record Nugent’s declaration to the same effect. Nugent, the quasi trustee, was the only party who could make a declaration of trust which the plaintiff was entitled to record. Pub. Sts. c. 141, §§ 1, 2; c. 120, §§ 4-14. See Faxon v. Folvey, ubi supra; Urann v. Coates, 109 Mass. 581. The- plaintiff’s declaration, although true, could not cut down the effect of his deeds, and was only notice to those who actually knew of the contents. Graves v. Graves, 6 Gray, 391, 393. Dole v. Thurlow, 12 Met. 157, 163. Pidge v. Tyler, 4 Mass. 541. Pitcher v. Barrows, 17 Pick. 361, 364. It follows that the injunction must remain in force against selling the land in Lynn, but not against selling that in Grant-ville. Decree accordingly.