Swift, Cb, J,
In this case, the plaintiffs, as grantees of Minor, claimed a priority of title, on the ground, that hi; deed was first recorded. Wright, one of the defendants,, claimed an equality of title, and that he was tenant in common with Minor, on the ground, that the execution of the [469]*469deeds was simultaneous, and that his deed was recorded in a reasonable and proper time : and, to prove the fact, offered the written declaration of Minor, when he was the owner of the land, and in possession ; which w as rejected by the court.
It is generally true, that the deed which is first recorded shall prevail; but to this there are exceptions. Where the second grantee, having notice of the existence of a prior deed procures his deed to be first recorded, it shall not prevail against; such prior deed. Where the first grantee procures his deed to be recorded within a reasonable and proper time after its execution, it will be valid against a subsequent deed, though first recorded j for every purchaser is entitled to a reasonable time to procure his deed to be recorded. Both these deeds bear date, and were recorded, on the same day ; but the deed to Minor was received for record, about five minutes before the deed to Wright. As both deeds were recorded in a reasonable time, it becomes material to ascertain the time of their execution : for if their execution was simultaneous, Minor and Wright, by operation of law, became tenants ip common.
The time of the execution and delivery of a deed is always a matter in pais, to be proved like any other fact; and it is competent for the party to shew a delivery on a day different from the date. His confession, admission, or dec. larat.ion, whether by parol or in writing, (while interested and in possession,) against his interest, is proper evidence, notwithstanding a subsequent conveyance; subject, however, to be explained, like any other testimony. The written declaration of Minor, while owner of the land, conduced to prove, that the deeds were executed at the same time, and that he was entitled to po priority. It was, then, clearly admissible evidence.
it has been contended, that this was an agreement, affecting the title, creating a new right, and in effect a conveyance of lands, and ought to have been recorded so as to give notice, and prevent subsequent purchasers from being prejudiced. But this writing created no new right; it was merely evidence of a fact, by which the priority of the deeds was to be determined, and was not by law required to he recorded. And though it may be very desirable, that all titles to lands should be evidenced by public records, yet it cannot he done in all cases : lor the time when a deed was executed. [470]*470and whether it was recorded in a reasonable time, cannot appear from the record.
As a new trial must be granted for this reason, it is unnecessary to decide the other questions made in the case ; for this may assume a very different, shape, if there should b® a further trial of the cause.
Hosmes, J.
The deeds of Hawley to Minor and to Wright were delivered at the same time. This fact is established, by the declaration of Minor, made while he owned the mortgaged premises, and before the execution of his deed to the plaintiffs. The testimony offered, fully proves this point; and, in my judgment, the court erred in rejecting it. The writing signed by Minor, is not merely an agreement that there should be no priority of his title to that of Wright, but an admission that there never was any priority. It declares, that the deeds were dated at the same time and place.
The declaration of Minor, made while in the possession of the premises, was admissible, not only against himself, but against the plaintiffs, who claim under him. Waring v. Warren, 1 Johns. Rep. 343. Walker v. Broadstock, 1 Esp. 458. Davies v. Pierce & al. 2 Term. Rep. 53. Jackson d. Griswold & al. v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald v. M‘Call, 10 Johns. Rep. 377.
The deed to Minor was registered on the town records, before the deed to Wright, but on the same day. This, it is said, is, to all subsequent purchasers, evidence of priority; and to rebut the presumption that Wright should have caused the written declaration of Minor to have been recorded. The latter suggestion I will just answer. It will not be pretended, that the writing under the hand of Minor, was a deed. But the duty of the recording officer extends to the registration of deeds only.
As to the supposed priority, apparent of record, in my judgment, it has not the slightest foundation. The tow* [471]*471records are evidence of the facts recorded. Now, wliat were the facts ? That mortgage deeds of the same land were executed on the same day, and at the same place, to Minor and to Wright,* and that the deed to the former was first recorded. It has been contended, (and on this depends the controversy between the parties) that priority of record infers priority of grant. On what principle is this suggestion to be supported ? The record on this point is silent. The deeds are dated on the same day, and on the same day recorded. At most, the matter insisted upon is an inference. No one will venture to assert, that from the premises, that is, from two deeds bearing the same date, and one of them being first recorded, it can be deduced as a fact, that one deed was executed prior to the other. If, then, there be any inference, it is a presumption of law. Now, on what basis is this supposed legal presumption to rest ? It is a presumption without any premises ; it is a presumption, where the probability of its being in opposition to the truth, is precisely equal; it is a presumption, which opens a wide inlet to fraud. A person, on the first day of a given month, at New-Lond&n, may execute a deed of land lying in Hartford, and afterwards, on the same day, may give a deed of the same land, in the latter town. It would be a construction, unjust, inconvenient, and 3ueh as no supposable principle would authorize, to hold the last deed valid, because the grantee procured it to be firs? recorded. It would be equally opposed to the determinations of our courts, and the general understanding of the people. It is correctly said, in 1 Swiff s Syst. 308. “ that every purchaser of land shall have a reasonable time to procure his deed to be recorded. But, the length of time that is to be considered reasonable, has never been ascertained, and perhaps cannot be, and must be left according to the special circumstances of each case. It has been adjudged, where two deeds were taken on the same day, and the last deed was recorded the next day in the forenoon, and the other in the afternoon, that the first deed was recorded in reasonable time, and should hold the land.
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Swift, Cb, J,
In this case, the plaintiffs, as grantees of Minor, claimed a priority of title, on the ground, that hi; deed was first recorded. Wright, one of the defendants,, claimed an equality of title, and that he was tenant in common with Minor, on the ground, that the execution of the [469]*469deeds was simultaneous, and that his deed was recorded in a reasonable and proper time : and, to prove the fact, offered the written declaration of Minor, when he was the owner of the land, and in possession ; which w as rejected by the court.
It is generally true, that the deed which is first recorded shall prevail; but to this there are exceptions. Where the second grantee, having notice of the existence of a prior deed procures his deed to be first recorded, it shall not prevail against; such prior deed. Where the first grantee procures his deed to be recorded within a reasonable and proper time after its execution, it will be valid against a subsequent deed, though first recorded j for every purchaser is entitled to a reasonable time to procure his deed to be recorded. Both these deeds bear date, and were recorded, on the same day ; but the deed to Minor was received for record, about five minutes before the deed to Wright. As both deeds were recorded in a reasonable time, it becomes material to ascertain the time of their execution : for if their execution was simultaneous, Minor and Wright, by operation of law, became tenants ip common.
The time of the execution and delivery of a deed is always a matter in pais, to be proved like any other fact; and it is competent for the party to shew a delivery on a day different from the date. His confession, admission, or dec. larat.ion, whether by parol or in writing, (while interested and in possession,) against his interest, is proper evidence, notwithstanding a subsequent conveyance; subject, however, to be explained, like any other testimony. The written declaration of Minor, while owner of the land, conduced to prove, that the deeds were executed at the same time, and that he was entitled to po priority. It was, then, clearly admissible evidence.
it has been contended, that this was an agreement, affecting the title, creating a new right, and in effect a conveyance of lands, and ought to have been recorded so as to give notice, and prevent subsequent purchasers from being prejudiced. But this writing created no new right; it was merely evidence of a fact, by which the priority of the deeds was to be determined, and was not by law required to he recorded. And though it may be very desirable, that all titles to lands should be evidenced by public records, yet it cannot he done in all cases : lor the time when a deed was executed. [470]*470and whether it was recorded in a reasonable time, cannot appear from the record.
As a new trial must be granted for this reason, it is unnecessary to decide the other questions made in the case ; for this may assume a very different, shape, if there should b® a further trial of the cause.
Hosmes, J.
The deeds of Hawley to Minor and to Wright were delivered at the same time. This fact is established, by the declaration of Minor, made while he owned the mortgaged premises, and before the execution of his deed to the plaintiffs. The testimony offered, fully proves this point; and, in my judgment, the court erred in rejecting it. The writing signed by Minor, is not merely an agreement that there should be no priority of his title to that of Wright, but an admission that there never was any priority. It declares, that the deeds were dated at the same time and place.
The declaration of Minor, made while in the possession of the premises, was admissible, not only against himself, but against the plaintiffs, who claim under him. Waring v. Warren, 1 Johns. Rep. 343. Walker v. Broadstock, 1 Esp. 458. Davies v. Pierce & al. 2 Term. Rep. 53. Jackson d. Griswold & al. v. Bard, 4 Johns. Rep. 230. Jackson d. McDonald v. M‘Call, 10 Johns. Rep. 377.
The deed to Minor was registered on the town records, before the deed to Wright, but on the same day. This, it is said, is, to all subsequent purchasers, evidence of priority; and to rebut the presumption that Wright should have caused the written declaration of Minor to have been recorded. The latter suggestion I will just answer. It will not be pretended, that the writing under the hand of Minor, was a deed. But the duty of the recording officer extends to the registration of deeds only.
As to the supposed priority, apparent of record, in my judgment, it has not the slightest foundation. The tow* [471]*471records are evidence of the facts recorded. Now, wliat were the facts ? That mortgage deeds of the same land were executed on the same day, and at the same place, to Minor and to Wright,* and that the deed to the former was first recorded. It has been contended, (and on this depends the controversy between the parties) that priority of record infers priority of grant. On what principle is this suggestion to be supported ? The record on this point is silent. The deeds are dated on the same day, and on the same day recorded. At most, the matter insisted upon is an inference. No one will venture to assert, that from the premises, that is, from two deeds bearing the same date, and one of them being first recorded, it can be deduced as a fact, that one deed was executed prior to the other. If, then, there be any inference, it is a presumption of law. Now, on what basis is this supposed legal presumption to rest ? It is a presumption without any premises ; it is a presumption, where the probability of its being in opposition to the truth, is precisely equal; it is a presumption, which opens a wide inlet to fraud. A person, on the first day of a given month, at New-Lond&n, may execute a deed of land lying in Hartford, and afterwards, on the same day, may give a deed of the same land, in the latter town. It would be a construction, unjust, inconvenient, and 3ueh as no supposable principle would authorize, to hold the last deed valid, because the grantee procured it to be firs? recorded. It would be equally opposed to the determinations of our courts, and the general understanding of the people. It is correctly said, in 1 Swiff s Syst. 308. “ that every purchaser of land shall have a reasonable time to procure his deed to be recorded. But, the length of time that is to be considered reasonable, has never been ascertained, and perhaps cannot be, and must be left according to the special circumstances of each case. It has been adjudged, where two deeds were taken on the same day, and the last deed was recorded the next day in the forenoon, and the other in the afternoon, that the first deed was recorded in reasonable time, and should hold the land. The propriety of this decision cannot be questioned,” I am of the same opinion. Sufficient time must be allowed a person to procure his deed to be recorded, before his title can be annulled, by the extraordinary vigilance and exertion of a subsequent grantee. This principle gives that reasonable evidence of title which t-hc statute [472]*472intended, and prevents the perversion oí’ a prior record, id Unwarrantable purposes.
He who is notified by the town records, that two deeds of the same property were executed and recorded on the same day, is informed, that he must look out of the record for priority of title. That is the Case before the court; and the testimony offered to evince it, should have been received.
As a new trial must be granted on this ground, and there is not a perfect coincidence of opinion on the other questions in the case, I shall omit further observation.
Gould, J.
I acquiesce, though with much hesitation, in the opinion that the writing, offered in evidence, by the defendant, Wright, ought to have been admitted — not, however, upon the ground, that priority, in the recording of deeds, is no evidence of priority of title : for, I believe it to be a sound position, that the deed first recorded, carries, prima facie, the prior, or legal title. If not, of what importance is the time of recording a deed, in any case ? The records or registries of conveyances, under the statute, are designed, as a medium of notice to all persons, as to the ownership of real property — by furnishing proof, accessible to all, in whom the title to that species of property, is. But how are these records to answer this purpose ? By showing, at what time, each deed was lodged with the clerk, and recorded, as well as what are its contents ; but they do not prove the time of its actual delivery ; nor can it be learnt from them, (not only for this reason, but for others also,) whether the party, claiming under a given deed, has been diligent, or negligent, in procuring it to be recorded. The presumptive evidence, which they afford, is, therefore, I think, always in favour of the deed, first recorded. For the only presumption they raise, as to priority of title, is that, which results from priority, in recording it. But this presumption may, sometimes be rebutted, by proof of extrinsic facts. And as the alleged fact of the simultaneous delivery of the two deeds in question, was, in its nature, legally provable, as being relevant upon the point of priority ; I cannot, I confess, assign a reason, altogether satisfactory to myself, why the written certificate, offered in evidence, by Wright, was not, in strictness, admissible, upon that point. I find a difficulty, in excepting it from the rule, under which the declarations of a [473]*473former proprietor, aguinst himself, ¡save always been admitted, against, those, who claim under him : 1 hough .from the very suspicious character of the evidence offered, I should be much better satisfied, if some dear ground could be shown for excluding it.
The other Judges, who were present, were of Use same opinion. Edmo.v», J. dissented at first, but on further reflection, acquiesced in the decision. Cn.vrM.vjf, J. was absent.
New trial to be granted.
1 Stat. Conn, tit, 162. o. 1. and 2-