Hill v. McNichol

• Decision Date: 11 June 1884
• Citation: 76 Me. 314
• Parties: ELIZABETH HILL v. ARCHIBALD McNICHOL, Administrator.
• Court: Maine Supreme Court

76 Me. 314

ELIZABETH HILL v. ARCHIBALD McNICHOL, Administrator.

Supreme Judicial Court of Maine.

June 11, 1884

ON EXCEPTIONS.

This was an action for money had and received against the defendant as administrator on the estate of Monroe Hill deceased, brought under the statute, appeal having been taken from the report of the commissioners of insolvency on said estate.

The writ contained four classes of claims, the first of which was for breach of covenant in the deed of Monroe Hill to her, by reason of outstanding mortgages, one of which from George S Bixby to Ann Lindsay for two thousand dollars was recorded as a two hundred dollar mortgage. The writ alleged that she paid $2612.93 to discharge this mortgage. The verdict was in favor of the plaintiff on all classes of claims and amounted to $14,575.21.

Other material facts bearing upon the question considered by the court are stated in the opinion.

Strout and Holmes, M. N. McKusick, and George N. Hanson, for the plaintiff.

A. Libbey, for the defendant, cited: Trull v. Bigelow, 16 Mass. 409; Pierce v. Faunce, 47 Me. 507; Brackett v. Ridlon, 54 Me. 426.

VIRGIN J.

Whether or not the plaintiff was entitled to recover the item of two thousand six hundred twelve dollars and ninety-three cents, which she claimed to have paid to discharge the mortgage of Bixby to Lindsay on the premises conveyed to her by the defendant's intestate, was one of the questions involved at the trial and which the jury must have found in behalf of the plaintiff.

If the mortgage was duly recorded prior to the delivery of the deed to her, then it was an incumbrance within the intestate's covenant of warranty. But by the record in the registry of deeds, the mortgage purported to be one for the security of two hundred dollars instead of two thousand dollars. And the presiding justice correctly instructed the jury that this record was " not proof of the record of the two thousand dollar mortgage." Frost v. Beekman, 1 Johns. Ch. 288; S. C., 18 Johns. 544; Stevens v. Bachelder, 28 Me. 218; Jones, Mort. § § 550 et seq. and notes.

The presiding justice also instructed the jury that if the mortgage was not recorded, then they " would inquire whether there was any evidence in the case to show that the plaintiff had any knowledge of the mortgage. That if there was no such evidence and no record, then the mortgage became a nullity as against these parties;. . and if she paid it, she paid it in her own wrong and could recover nothing for it. If, on the other hand, they are not satisfied that it was not recorded; or if they are satisfied that this plaintiff had knowledge of it before her deed was delivered, then they should inquire as to the amount which she paid."

Our opinion is that the latter alternative is erroneous. Long before the enactment of R. S., c. 73, § 8, the delivery of an executed deed by the owner of the fee transferred the estate from the grantor to the grantee, and it was effectual, without registration, against the grantor and his heirs, but not against a subsequent purchaser and grantee. Farnsworth v. Childs, 4 Mass. 637; Marshall v. Fisk, 6 Mass. 24. It was also early decided that a subsequent purchaser, having notice of a prior unregistered deed, is affected in the same way and to the same extent as if such deed had been recorded (Copeland v. Copeland, 28 Me. 525; McMechan v. Griffin, 3 Pick. 149); basing the doctrine upon the fraud which results in permitting a junior purchaser to defeat a prior conveyance or incumbrance of which he has notice. Cheval v. Nichols, Stra. 664. The statute above cited, therefore, simply established by positive enactment what had been previously settled by judicial decisions except as to " devisees."

Again in early times it was decided that where a purchaser, without notice of a prior unregistered deed, and for a valuable consideration, had conveyed to one who had notice thereof, the title of the latter was not...