Allen v. Everts

The opinion of the Court was pronounced by Paddock, J. The plaintiff claims under a title derived from Abraham Van Wyck, the original grantee, who it appears executed a deed of the land in question to Daniel Hurlburt, on the 2d of March 1797, which was recorded in the town clerk’s office in Burlington, on the 21st March, 1799. The title'then passed to Stephen Pearl, from him to John Pomeroy,and thence to Stephen Mix Mitchell, and by his administrator was deeded to the plaintiff. The defendants claim to hold by an adverse title, derived from a sale of the lands at vendue, by Abraham Ives, sheriff of the county of Rutland, to Ira Allen, on the 24th of November, 1784, to satisfy a tax of ten shillings on the hundred acres of land, granted by the legislature on the 21st October, 1783, (the county of Rutland then including the town of Burlington.) And we find in the proviso to the fourth section of the act, that “ whenever any “ lands of any proprietor or proprietors,or land owners,shall be thus “ sold by virtue of this act, the collector of such tax or taxes “ shall make, and give to the purchaser, a deed of warranty there- “ of, signing said deed as collector of the respective tax on which “ said land was sold. And if the said proprietor or proprietors, or “ land owners, shall not within twelve monthsnext after such deed “ is lodged in the town clerk’s office, or for want thereof, in the “ county clerk’s office, or proprietor’s clerk’s office, pay and sat- “ isfy, or tender to such purchaser the purchase money, to13 " gether with all costs and charges, (including the expense “ surveying such lands, if any be made,) or deposit the same in “ the office where the deed is lodged, and twelve per cent, in- “ terestthereon arising, in gold or silver,the same shall be recorded, “ and thereupon the title be confirmed to and in such purchaser, “ his heirs and assigns, to all intents and purposes forever.” H. Allen, for plaintiff. Bailey and Marsh, for defendants. It appears from the deed, that it was lodged for record with Ira Allen, who styled himself proprietor’s .clerk, on the same day on which it was executed; and it is contended by the defendants, that although the deed was never recorded in the proprietor’s clerk’s office, nor any where else, until it appeared in the records in the town clerk’s office in Burlington, in February, 1827 5 yet, being on file in the office of the proprietor’s clerk, was sufficient notice to Hurlburt of the sale and conveyance from Ives to Allen, and, therefore, he could take nothing by his deed from Van Wyck. But the court cannot adopt this reasoning, or apply the principle that a subsequent purchaser shall be defeated by the grantee having a knowledge of a previous conveyance by his grantor. It is undoubtedly true, Ira Allen was not only the purchaser, but the proprietor’s clerk ; and having placed the deed on file within his office for record, it is not to be supposed that he would suffer a day to pass, after the year had expired, without spreading it upon the record, and thereby perfect his title. Not having done this, the presumption is strong, and almost irre-sistable, that the money was paid, and the land redeemed by Van Wyck,within the twelve months given by law for that purpose; and in the absence of all proof except what arises from the deed, we feel bound to adopt that conclusion, and say that the title was in Van Wyck at the time he deeded to Hurlburt. It follows then, that the subsequent recording of the deed in 1827, in the town clerk’s office in Burlington, is inoperative, and that the judgment of the county court must be affirmed. Judgment affirmed.