Woodward v. Sartwell

• Decision Date: 10 July 1880
• Citation: 129 Mass. 210
• Parties: Ellen L. Woodward v. John K. Sartwell
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 210

Ellen L. Woodward v. John K. Sartwell

Supreme Court of Massachusetts

July 10, 1880

Argued January 13, 1879

Middlesex Writ of entry, dated November 16, 1877, to recover a parcel of land in Watertown. Plea, nul disseisin. Trial in the Superior Court, before Allen, J., bye whose direction the jury returned a verdict for the tenant; and the demandant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

J. S Abbott, for the demandant.

D. F Fitz & J. H. Sherburne, for the tenant.

Endicott J. Colt & Soule, JJ., absent.

OPINION

Endicott

The demandant, being in possession of this estate in her own right, conveyed the same, her husband joining, by quitclaim deed, to one Burnham, and Burnham conveyed to W. L. Egerton who reconveyed to the demandant. The first two deeds were dated, acknowledged, and recorded on June 13, 1876; the last deed was also dated, acknowledged, and delivered to the demandant on that day, but was not recorded until June 14 1877. Neither Burnham nor W. L. Egerton paid any consideration, or was ever in actual possession of the premises. The jury have found that the deed from W. L. Egerton to the demandant was not delivered to her with the other deeds for the purpose of being recorded with them, nor with the intention of passing the record title forthwith to her; and also that it was the intention of the demandant that this deed should not be recorded, and that the record title of the land should be placed in W. L. Egerton.

While the record title thus stood in W. L. Egerton, his right, title and interest in the land were, on November 27, 1876, attached on the writ of J. O. Egerton, and, judgment having been obtained in the action, on July 3, 1877, soon after the deed of W. L. Egerton to the demandant was recorded, the right, title, and interest of W. L. Egerton in the same were sold on execution under the St. of 1874, c. 188, to J. O. Egerton, from whom the tenant derives his title. Neither J. O. Egerton nor the tenant had any actual knowledge of the deed from W. L. Egerton to the demandant till the trial of this cause.

The first question is, Did W. L. Egerton have any right, title or interest which could be attached while the estate stood in his name upon the record, although he had parted with his interest by a deed given to the demandant, which was not intended by the parties to be recorded, and was designedly withheld from the records?

It is settled in this Commonwealth, that where a person to whom land is conveyed by deed immediately conveys the land to another, so that the deeds are parts of the same transaction, and the seisin is instantaneous and only for the purpose of conveyance, his wife can have no dower in the land, and it is not the subject of an attachment by his creditors. Holbrook v. Finney, 4 Mass. 566. Chickering v. Lovejoy, 13 Mass. 51. Clark v. Munroe, 14 Mass. 351. Haynes v. Jones, 5 Met. 292. See also Burns v. Thayer, 101 Mass. 426; Borden v. Sackett, 113 Mass. 214. The fact that the deeds were executed on the same day, though strong, is not conclusive, evidence that the seisin was instantaneous; that may be a question for the jury to decide on all the facts and circumstances of the case. Webster v. Campbell, 1 Allen 313. Hazleton v. Lesure, 9 Allen 24.

In this case that inference is rebutted by the finding of the jury, that, while all the deeds were executed, acknowledged and delivered at the same time, and were parts of one transaction, the last was withheld from the record by the demandant in order that the record title should stand in the name of W. L. Egerton. It seems to have been the object of the conveyance to place the record title merely in Egerton, without giving him any real interest in the estate as against the demandant. If none of the deeds had been recorded, the case would have fallen precisely within the case of Haynes v. Jones, ubi supra; but the difficulty arises from the fact, that, while the deed to W. L. Egerton was recorded, the deed from him was not. The seisin he acquired was really instantaneous; but the record did not disclose, and it was not intended that it should disclose, that fact to a purchaser or an attaching creditor, and this seems to have been the object of the transaction. Great stress is laid in Haynes v. Jones on the fact that McIntire, through whom the title passed, was not in possession of the estate, and had no title by a recorded deed; and it was held to be sufficient to defeat the attachment that he had conveyed whatever title he had by deed also unrecorded.

As the demandant allowed, and it was the intention of the parties that she should allow, for some purpose, the record title to stand thus for a long time, we are of opinion that the land was liable to attachment as the property of W. L. Egerton by a bona fide creditor without notice. Had Egerton sold to a third party without notice, the deed, when recorded, would have been good against the prior unrecorded deed of the demandant. Norcross v. Widgery, 2 Mass. 506. Flynt v. Arnold, 2 Met. 619.

An attaching creditor stands in the position of a purchaser for value, and, as a deed duly recorded takes precedence of a prior deed unrecorded, so an attachment, when duly made, has the effect of a prior purchase and takes precedence of a prior unrecorded deed. Marshall v. Fisk, 6 Mass. 24. M'Mechan v. Griffing, 9 Pick. 537. Roberts v. Bourne, 23 Me. 165. It is true that, as between W. L. Egerton and the demandant, the title to the land was in the demandant; but, as the deed may affect the rights of purchasers or attaching creditors, as to them it is necessary that there should be actual notice or constructive notice by registry. Earle v. Fiske, 103 Mass. 491. Fiske v. Chamberlin, 103 Mass. 495. The demandant, therefore, by recording her deed in June 1877, a few days before the judgment was rendered against W. L. Egerton, in the action in which the attachment was made, gained no rights as against J. O. Egerton, the attaching creditor. The recording of her deed operated as a conveyance of the estate subject to the attachment made on November 27, 1876, and disclosed the fact that W. L. Egerton had parted with his interest in the land to the demandant before the attachment was made; but, as the title stood in his name on the record, he still had an attachable interest therein to the same extent as if he had made no conveyance to the demandant. Judgment having been obtained, execution could be levied on the land under the Gen. Sts. c. 103, by levy and set-off, or, at the election of the judgment creditor, by sale under the St. of 1874, c. 188; and, having elected to have it levied by sale, the purchaser at the sale would take such title as could pass by the sale, if the sale was regular and all proper forms were complied with. The demandant denies that the sale was regular; and it becomes necessary to consider the statutes under which it was made, and the form of the conveyance under which the tenant claims title.

It is provided in the Gen. Sts. c. 103, §§ 1-8, that all lands of a debtor in possession, remainder or reversion, and all rights of entry into such lands, and of redeeming mortgaged lands, may be taken on execution, and, having been duly appraised, may be set off to the execution creditor by metes and bounds with as much precision as is necessary in a common conveyance, and that "all the freehold estate and interest which the debtor has in the premises shall be taken and pass by the levy." § 8. When the right of redeeming mortgaged lands is seized on execution under these sections, the land itself must be set off by metes and bounds; and other provisions in regard to the action of the appraisers and the redemption from the levy are contained in §§ 33-38. But §§ 39, 40, provide that the right of redeeming mortgaged lands may, at the election of the creditor, be sold on execution by the officer, at auction, and he shall execute a sufficient deed thereof to the purchaser, which, being recorded, shall give to the purchaser all the debtor's right of redemption. But the officer must sell the entire estate which is at the time of the beginning of the levy bound by the lien of the attachment. It is clearly the intention of the Gen. Sts. c. 103, that the levy of an execution, by a sale and conveyance thus made, of the right which the debtor has in premises subject to a mortgage, shall have the effect to pass all the freehold estate and interest of the debtor therein, as fully and effectually as if the land were set off by metes and bounds to the creditor. The creditor has his choice, and by either method he can secure the fruits of his attachment.

By the St. of 1874, c. 188, the right thus to sell is extended to any creditor where land is taken to satisfy his execution; and it may be sold "in like manner as the right to redeem mortgaged land is now sold; the officer who serves the execution shall proceed in all respects in the manner prescribed for the sale of such right of redemption." A sale, therefore, may be made, and the estate or interest of the debtor may be conveyed by deed. Hackett v. Buck, 128 Mass. 369. The land itself may be conveyed, or the right, title and interest of the debtor in the same may be conveyed, and if the latter form of deed is used by the officer, such estate as the debtor had in the premises at the time of the attachment would pass. And if at the time of such conveyance it appears that there was a deed, prior to the attachment, but not recorded till after the attachment and before the conveyance by the officer, in such case we are of opinion that a deed by the officer of the right, title and interest of the debtor at the time of the attachment conveys the interest which he then had. For the deed which conveys in...