Graves v. Graves

72 Mass. 391

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1856
• Status: Published

Opinion

Shaw, C. J.

It is very clear that the warranty deed from Franklin Graves to Allis, and the simultaneous bond to reconvey upon payment of a sum of money, constituted a mortgage to Allis, and left an equity of redemption in Franklin Graves.

The court are of opinion that the effect of the assignment of the instrument of defeasance by Franklin Graves to Erastus L. Graves, with all his right, title and interest in the land therein described, constituted a conveyance of the equity of redemption.

But the instrument of defeasance, not being acknowledged, was improvidently admitted to registration, and the record does not operate as constructive notice of the execution of the assignment of the equity of redemption, as against an attaching creditor of the equity; and therefore the title of the attaching creditor, though subsequent in time, takes precedence of the assignment. '

We think however that, under the circumstances, it is proper that the case should go to a new trial, to enable the defendant to prove, if he can, actual notice to the plaintiff of the prior assignment of the equity, -when he made his attachment.

New trial ordered.