Bigelow v. Topliff

25 Vt. 273

• Court: Supreme Court of Vermont
• Decided: March 15, 1853
• Status: Published

Opinion

The opinion of the court was delivered by

Isham, J.

The plaintiffs are prosecuting this bill of foreclosure, as the assignees of the executor of Hugh Hehry, to whom the mortgage note was executed by Russell Topliff and Daniel Aiken as surety. The mortgage deed, purporting to convey the entire interest in the premises, was executed, acknowledged, and recorded on the 10th day of February, 1845, by RusseE Topliff alone, on what was known as the Barlow and Darhng farms. The bill is taken as confessed by the makers of the note, and answered only by Sebastian R. Streeter and RoEin Richmond.

The defendant, Streeter, claims a prior right and interest to that of the plaintiffs in these premises, and insists in his answer, that the plaintiffs are not entitled to a decree against him. He states that RusseE Topliff conveyed to him, by a warrantee deed, an undivided half of these premises, on the 10th day of April, 1844, about 10 months before the execution of the mortgage under which the plaintiffs claim. He admits that it was given as security for an indebtedness to him, and though absolute on its face, yet, on this admission, equity will regard the deed only as a mortgage security for that indebtedness. We learn also, that on the day of its execution, it was acknowledged and left for record in the town clerk’s office, with directions to record the same, on which a certificate is made by the clerk, that the deed was “ received for record April 10th, 1844, and recorded January 15th, 1846.”

From the certificate it will be perceived that this mortgage deed to Streeter was not recorded in extenso on the book of records, untE long after the execution of the mortgage deed of the plaintiffs; and as there is no pretence that Mr. Henry, to whom this mortgage was given, had notice in fact of the conveyance to Street-er at the time he took his mortgage, it is evident that the plaintiffs’ mortgage should have priority of title and right over the conveyance to Mr. Streeter, unless the lodgement of the deed by Mr. ■Streeter with the town clerk, with instructions to record it, and the certificate of the clerk that it was so left, shall be considered a record of the deed under the statute, and sufficient to charge subsequent purchasers and creditors with constructive notice of its execution.

It is insisted by Mr. Streeter, in his defence, that his deed was sufficiently recorded for that purpose, and that the plaintiffs’ claim under their mortgage is held subject to the prior right and equity of this defendant to the premises. This question depends upon the construction to be given to the statute, which provides, p. 383, sect. 1,4, that conveyances shall be by deed, signed, sealed, acknowledged and recorded at length in the town clerk’s office, and unless so recorded, they shall be effectual only as against the grantor and his heirs. A similar provision is made in the statute, p. 116, sec. 30, pointing out the duties of the town clerk.

The general object of the act is apparent, and its construction has been generally alike understood and uniform. The execution and delivery of the deed passes the estate and interest in the premises, the same as livery of seizin at common law. The object of its enrollment is notice, and this is its only object. Hence every deed is good and effectual against the grantor and his heirs, as well as every other person having notice of a prior conveyance, either actual or constructive, whether creditors or purchasers. This was the language of this court in the case of Morton v. Edwin, 19 Vt. 81. The statutes of most- of the states in this Union have the same general provision. Chancellor Kent remarks, 4 Com. 502, that the English rule prevails, that the title passes, by the execution of the deed, against the grantor and his heirs, subject to be divested by subsequent purchasers and creditors, when the instrument has not been recorded, and when they became interested therein, without notice in fact of such prior conveyance. But when such notice in fact exists, even if sufficient to put the party on enquiry, the deed becomes as effectual as if recorded; for all the purposes and objects of recording are answered.

What will he a sufficient record for that purpose, depends upon the object and general provisions of the act. In some cases, the instrument must be recorded at length upon the book of records, and it will have no effect until it is so recorded. This is true in all cases where the enrollment is necessary to the investing of the title. In such case, it is made a condition precedent, and no right or title passes until the statute is strictly complied with. This rule prevails where recording is required of the proceedings of the collector in sales of land for taxes. Clark v. Tucker, 6 Vt. 181. Giddings v. Smith, 15 Vt. 344. So in the levy of executions upon real estate, the record of the execution and levy is necessary to pass the title. Morton v. Edwin, 19 Vt. 81. In these cases, the object of the record is not simply notice; but it is an essential link in the chain of evidence in the proof of title to the estate.— Where the object of the record is notice merely, the statute is complied with, when the party has left the instrument with the recording officer for that purpose, with directions tor its immediate record. This construction is not to be considered as an open question, but as settled by the decisions of this court, as well as by that practical construction which it has received since the passage of the act. This principle was recognized by this court in the case of Ferris v. Smith, 24 Vt. In that case, the act required “ the “ deputation and certificate of the oath of° office of a deputy sher- “ iff to be recorded in the county clerk’s office, and until recorded, “ the official acts of such deputy were not valid.” The object of the-act was notice, and lodging that deputation and certificate with the county clerk for record, was held a sufficient compliance with the act, to invest him with the prerogatives of the office, and render valid his official acts, though the deputation and certificate had not been recorded in extenso upon the records. In Connecticut the same rule prevails, and leaving the deed for record, with the certificate of the clerk thereon, that it was so left, is sufficient to protect the title as against the grantor, as well as subsequent purchasers and creditors. Hine v. Roberts, 8 Conn. Rep. 347. The difference in phraseology between our statute and theirs, is not such as to justify a different construction, particularly where the practical construction of the act has been uniformly the same.

In Mass, and N. York, their statutes expressly provide that the deed “ shall be considered as recorded from the time of the delive- “ ry to the clerk for that purposeand Chancellor Kent remarks, 4 Kent’s Com. 505, note, “ that no doubt the previously existing “ rule of law was the sameand in 2 Cruise’s Dig. by Greenleafj p. 546, note 1, it is said, “ that a deed is registered in contempla- “ tion of law when it is entitled to registration, and is deposited “ with the register in his office for that purpose.” When a deed is so left, it becomes the duty of the town clerk forthwith to record the same on the book of records, not only as a matter of notice, but as a matter of security and preservation, and to enable the original to pass into the. hands of the grantee. When the deed is recorded at length on the book of- records, at that or a subsequent time, it has j effect by relation to the time, at least, when left for record.

In this case, the deed to Streeter having been left for record, and so certified by the clerk, before the mortgage under which the plaintiffs claim, must, under these principles, be considered as duly recorded, and sufficiently so to charge the plaintiffs and those under whom they claim, with constructive notice of its existence and execution, and gives him that priority of title, that must prevail against the plaintiffs’ mortgage.

The objection is equally unavailable, that the deed to Mr. Streeter is rendered fraudulent and void by being absolute on its face, when in fact it was intended merely as security for existing and future liabilities. As between the parties to the deed, in equity at least, it •will be treated as a mortgage. Wright v. Bates et al., 13 Vt. 341. Conner v. Chase, 15 Vt. 764. Deeds executed under such circumstances have been too frequently sustained as mortgages and conveyances, to consider them, when recorded, as void or ineffectual to answer the purposes for which they were executed. As to Mr. Streeter therefore, the bill was properly dismissed.

In relation to the title of Rollin Richmond, the other defendant who has answered this bill, the case depends on altogether different principles. From the case we learn, that the premises were originally owned by Samuel Topliff and Amos Jacqueth as tenants in common; that the title of Samuel Topliff passed by devise to Russel Topliff, and the title of Jaqueth by regular conveyances to J. B. Danforth, and from Danforth, on the 2d of May, 1844, to Daniel Aiken, in whom the title of record to an undivided half of the premises remained, until the attachment of Eliakim Johnson, on the 9th of May, 1849; upon which attachment an execution was afterwards extended, under which this defendant claims title. It is at once perceived, that when the plaintiffs’ mortgage was executed, the title of record to these premises was in Russell Topliff and Daniel Aiken as tenants in common. If we, therefore, are to be governed in this case by the title of the parties, as it stands under regular conveyances, and as that title appears of record, the mortgage deed, under which the plaintiffs claim, is effectual only to convey the undivided half of Russell Topliff, leaving unaffected the undivided half of Daniel Aiken; for one tenant in common, by his own deed, whatever it may purport to convey, can have no effect upon the title and interest of his co-tenant. The title of Daniel Aiken to an undivided half of these premises, was perfect in him by regular conveyances and by the records, at the time of the attachment and levy of the execution, and became vested in Johnson as levying creditor; the equitable right of which passed to this defendant under the assignment of the judgment to. him, and will prevail against the plaintiffs’ mortgage, unless there are other considerations involved in the case, creating an equity in behalf of the plaintiffs that should prevail against the title of this defendant.

It is insisted that this equity exists in behalf of the plaintiffs, from the consideration that Daniel Aiken was present at the time of the execution of the note and mortgage deed; that the note was drawn and signed by him as surety; and that the mortgage deed of the whole interest, as well as the certificate of acknowledgment, was not only filled up by him, but that he signed the same as a witness to the signature of Topliff. That these facts, which are not denied in the case, are sufficient to charge Daniel Aiken with knowledge of the contents of that deed, and that he knew Topliff was mortgaging the entire interest in the land without right, we can entertain no doubt. But whether those facts will estop even Daniel Aiken from setting up his title to this property against this mortgage, may be considered doubtful. Our convictions are, that they will have no such effect. The ground, upon which this doctrine of estoppel is applied, is fraud; and this may consist in a concealment, as well as a misrepresentation of facts in relation to the title; and any conduct of a party, upon which another is induced to act, and from which an injury results, will operate as an estoppel against him whose conduct has induced that confidence. 2 Smith’s Lead. Cas. 566, notes. But the difficulty in relation to the application of that principle to this case, arises from the consideration that no legal fraud has been committed or sustained.— Chancellor Kent, 2 Kent’s Com. 485, remarks, “that while “ the common law affords protection against fraiid, yet it does not “ give indemnity against the consequences of idolence, or a care- “ less indifference to the ordinary and accessible means of informa- “ tion.” In the case of Swick v. Sears, 1 Hill 18, it was held, that a statement by the plaintiff that his title was extinguished, did not preclude him from subsequently enforcing it against the defendant, although the latter had bought the land in reliance upon the statement; and the same doctrine was afterwards sustained in Delaplaine v. Hitchcock, 6 Hill, 17. So in Parker v. Barker, 2 Met. 421, it was held, “ that a promise by a mortgagee to waive his priority in favor of a second mortgagee, if he would accept the land as security, and give 'time to the mortgagor, did not debar the first mortgagee from enforcing his mortgage.” In those eases, the party was not estopped, as the introduction of that testimony was considered in contravention of the statute of frauds. We are not called upon in this case to say whether that doctrine, to that extent, would be sustained in this state. But ifj at the time of the execution of the plaintiffs’ mortgage by Topliff, the mortgagee knew, or was chargeable with knowledge, that Daniel Aiken in fact owned but an undivided half of the premises, no ground really exists for the application of the doctrine of estoppel in pais, even as against Daniel Aiken, for no fraud would exist. This we apprehend is the case under consideration; for the plaintiffs and those under whom they claim, are chargeable with notice of the real title of Topliff as it stood upon the records. From that source they must or might have learned, and are chargeable with the knowledge, that the title of Topliff extended only to an undivided half of the premises included in the mortgage deed; and against this record evidence of title in Daniel Aiken, and legal notice thereof in the mortgagee, the doctrine of estoppel in pais can have no application. In the case of Carter v. Champion, 8 Conn. 554, it was expressly held, “ that a prior incumbrancer, who was pres- “ ent at the execution of a subsequent mortgage, and did not dis- “ close his claim, will not, for that reason, be postponed, provided “ the second mortgagee had actual or constructive notice of .the “ prior incumbrance.” But if we were to consider that these facts were to estop Daniel Aiken from setting up this title, we are not prepared to say, that the estoppel would operate upon this defendant ; indeed, we tliink it should have no such effect. The attachment and levy of execution was made upon the record evidence of perfect title in Daniel Aiken, and those records-of title to real estate would be of little value, if under such circumstances his claim could not be protected. Our registry system should not be defeated or affected by such rules. This view of the case is not answered by saying, that this defendant has admitted in his answer, knowledge of Topliff’s deed, and the claim of. the plaintiffs. The answer, it is true, does not fully deny such knowledge, neither does it admit it. The fact of knowledge, if it is important in the case, is for the plaintiffs affirmatively to prove. If the answer does not contain a full admission or denial, it is a proper matter of exception to the answer. But an inference is not to be drawn from that circumstance, that the matter not so stated or denied is trué or proved. We think, therefore, that the defendant is not estopped from setting up his title against the plaintiffs’ mortgage.

It is further insisted, that the plaintiffs, standing as mortgagees, have the equity of purchasers, inasmuch as they have made advances upon the strength of that mortgage and security; and that this defendant stands as a general creditor, his attachment being only to secure an antecedent debt, and that he having made no advances upon that specific security, the principle is urged, that a special creditor has a prior equity to that of general creditors; and that advances made upon specific security create a greater equity than where that security is obtained on antecedent debts. These principles are supported by many authorities, but their proper application to this case however is more than doubtful. If the mortgagee was chargeable with notice and knowledge that Russell Tojdliff had no title to these premises but an undivided half, and he was making advances upon security which he knew, or should have known, the mortgagor could not grant, this superior equity fails ; for no fraud has been committed, and if he is deprived of that security, he is visited only with those consequences which he must have anticipated.

It would be unjust to deprive the attaching creditor, or this defendant as his assignee, of the title to this land, when it was obtained in the exercise of legal diligence and on the faith of record evidence, and when at the same time he was ignorant of any outstanding claim; and vest it in one who took his conveyance, having either actual or constructive notice of the defective title of his grantor. In relation to that doctrine of a superior equity in purchasers over that of creditors, it is to he observed also, that that principle has never been recognized or adopted in this state. On the contrary, the lien of attaching creditors has always been considered as creating an equitable title, equal to that of purchasers; and the principle equally applies between purchasers and creditors, as between creditors, “ that the first in diligence or time is “ the first in right.” This doctrine is fully recognized in the case of Carter v. Champion, 8 Conn. 540, in which it was held, “ that “ the lien of a creditor, acquired by the attachment of a particular “ piece of land, is as specific and under similar circumstances stands “ on as high equitable grounds, as a lien by mortgage of the same “ land.” This rule commends itself as founded in substantial equity.

We have come to the conclusion therefore, that this bill was properly dismissed as to these defendants who have answered.

The result is, that the decree of the Chancellor must be affirmed.