Kellogg,
the agent of the lessor of the plaintiff, had knowledge of circumstances enough to put him upon his enquiry as *to Noah Parson’s title to the premises. If he was ignorant of the fact that Noah Parsons had a deed from Crarath, it must have been because he was careful not to know it. He knew the premises had been paid for by Noah Parsons, and understood that they had been sold on the oldest execution against him. How should all this happen, if Noah Parsons had no title ? He knew that Crarath was to give the deed to Jared Parsons, without receiving any equivalent, and that Jared Parsons should at once mortgage the premises, to secure Noah Parsons’ debt. How could all this take place, unless Noah Parsons-was really the owner ? The note signed by Crarath, as the surety of Noah Parsons, to Tallman, was understood by Allen and Kellogg to be an incumbrance, and to get rid of this circumstance, they procured Mason as a substitute for Crarath. Was not all this sufficient to excite Kellogg’s suspicion ? to have opened his eyes, if he had not purposely winked so hard as not to see any difficulty in the way of securing Glover’s demand? Allen does not swear that when he communicated the fact of the previous deed to Jared Parsons, which was after the mortgage given, that this was news to Jared. He had known of Noah Parsons’ claim. He must have known it, for he had himself become the purchaser of his (N. P.’s) right at sheriff’s sale.
The fact that Obed Crarath purchased the premises in question from the commissioners in partition in 1819, does not prove that he had no title, or a defective one in 1816, Whatever advantage Crarath derived under this purchase, enured to the benefit of Noah Parsons, his former guarantee.
Glover (the lessor of the plaintiff) is not a subsequent bona fide purchaser, or mortgagee for a valuable consideration, within the meaning of the 4th section of the act con[18]*18cerning deeds.. (1 R. L. 370.) He.gave1 no credit-to any. one. He. created no new debt in'consideration of taking ' the mortgage. - He.took it on an -old debt, paying nothing. whatever for the -mortgage. It was no payment or extin* guishment of the former, debt; but merely- a - collateral security ; and if not-paid, Glover- may prosecute' Noah’ Parsons on the original consideration of-the debt. (Cumming v. Hackley, 8 John. 202. Green v. Hart, 1 John. 580.) This.mortgage, is a mere security. *of a pre-existing debt. (Jackson v. Willard, 4 John. 42, and cases there cited.)
Curia, per Woodworth, J.
Here is no- evidence1 that' Obed Crarath, when he conveyed-to Noah Parsons,- in" 1816,-had any.-title. It stated-that-he gave, a ¡deed. This, of' itself, is not sufficient -to warrant- a: .presumption' of title-: neither does the. fact that Noah Parsons paid-him'a consideration, afford any.-additional support. These acts may; have-been performed under a-belief that title was-acquired,when in reality none-passed. They.-fall.short ill making, out,; prima facie, competent evidence-that Obed Crarath had any .interest in the-land, - If we -examine the rest of - the,testimony, the presumption appears !to be- strong that the title-of the premises was acquired by the deed fromthecommissioners.
It. appeared -that- Samuel Crarath - died-'-in possession; which-is,-prima facie,- .evidence of seisin,
It is argued by,the-.counsel-for-the-defendant,-that this” deed enured to the benefit of-. Crarath’s guarantee- in-the [19]*19deed of 1816. Here also another difficulty lies'in the' defendant’s Way;'' We afe left'entirely in'the dark', whéther this deed was a mere quit-claim, dr contained a covenant of warranty. It may have been either.' The defendant, therefore, has not disclosed matter sufficient upon which" to raise either the technical doctrine of estoppel, or to "make the conveyance enure to" the henchí of Nóáh Parsons and his assigns. , . , ,,
In McCracken v. Wright, (14 John. 194,) it was held that by a quit-claim deed no title not in esse at the time would pass : [1] though' when" there was"a'warranty, it; would operate .as ah estoppel,.for avoiding circuity of action. The doctrine is laid down iti Co. Lit. sec. 446, and p. 265, a. b., that by a reléase" no right passeth but the right which the releaser hath *at thé time of the reléase made;' as if the son release to the disseisor the right which he hath or may have, without clause of warranty; afterthe death of his father, the’ son may enter" against hi’s own release, bécause he had no right at all at the timé of the release made, thé right being at the timé in the father." (Jackson v. Hubble, 1 Cowen, 616, S.P.)
It follows, if this view be correct, that the sécond deed given by Obed Crarath may be set up by the grantee deriv-" ing title under it; and that it cannot be urged in support of the supposed title of thé grantee under the first deed', for the reason that the defendant has not shown affirmatively' that there was a warranty: The question of estoppel, therefore, does not apply on the facts before" us.'
But if, for the sake of argument, it be conceded that the. title passed by the deed of 1816, then, inasmuch as that deed [20]*20has never been recorded, is the plaintiff affected by notice? There is certainly no express notice ; although, perhaps, in a proper case, the facts might be sufficient to put the party on inquiry. If there was notice, it was given to the agent The. lessor of the plaintiff does not appear to havq.been personally acquainted with the circumstances attending the giving of the mortgage, or the time it was given. Kellogg was the agent of the lessor of the plaintiff for the purpose of obtaining security for his debt against Noah Parsons. It was represented to him that the title was in Obed Crarath, that Noah Parsons had paid for the land, and held a bond for a deed, .and that Jared Parsons was equitably entitled to the land by reason of a purchase made by him at a sheriff’s sale under a judgment against Noah Parsons, entered in 1819. As to this purchase, it may be here observed that the title of Noah Parsons, if he had any, was subject to the lien of Marvin’s judgment in 1817, and was afterwards transferred to them by the sheriff’s deed, 1824. In truth, Jared Parsons, in 1820, when this arrangement took place for securing the debt of the lessor of the plaintiff, had no estate or title whatever, unless the commissioners’deed of 1819 to Obed Crarath-operated so as to enure to the benefit of Noah Parsons, the grantee in. the deed of 1816 ; and if it did so operate, then indeed Jared Parsons might have acquired a title liable to be *defeated by a sale under the Marvins’ judgment, which subsequently took place. Upon the supposition that the first deed was rendered valid by the execution of the commissioners’ deed to Obed Crarath, still it was an unrecorded deed ; and I perceive no objection in such a casé to Jared Parsons or any other persons, for valuable consideration and without notice, accepting a conveyance from Noah Parsons, in whom upon this principle, the title was vested.
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Kellogg,
the agent of the lessor of the plaintiff, had knowledge of circumstances enough to put him upon his enquiry as *to Noah Parson’s title to the premises. If he was ignorant of the fact that Noah Parsons had a deed from Crarath, it must have been because he was careful not to know it. He knew the premises had been paid for by Noah Parsons, and understood that they had been sold on the oldest execution against him. How should all this happen, if Noah Parsons had no title ? He knew that Crarath was to give the deed to Jared Parsons, without receiving any equivalent, and that Jared Parsons should at once mortgage the premises, to secure Noah Parsons’ debt. How could all this take place, unless Noah Parsons-was really the owner ? The note signed by Crarath, as the surety of Noah Parsons, to Tallman, was understood by Allen and Kellogg to be an incumbrance, and to get rid of this circumstance, they procured Mason as a substitute for Crarath. Was not all this sufficient to excite Kellogg’s suspicion ? to have opened his eyes, if he had not purposely winked so hard as not to see any difficulty in the way of securing Glover’s demand? Allen does not swear that when he communicated the fact of the previous deed to Jared Parsons, which was after the mortgage given, that this was news to Jared. He had known of Noah Parsons’ claim. He must have known it, for he had himself become the purchaser of his (N. P.’s) right at sheriff’s sale.
The fact that Obed Crarath purchased the premises in question from the commissioners in partition in 1819, does not prove that he had no title, or a defective one in 1816, Whatever advantage Crarath derived under this purchase, enured to the benefit of Noah Parsons, his former guarantee.
Glover (the lessor of the plaintiff) is not a subsequent bona fide purchaser, or mortgagee for a valuable consideration, within the meaning of the 4th section of the act con[18]*18cerning deeds.. (1 R. L. 370.) He.gave1 no credit-to any. one. He. created no new debt in'consideration of taking ' the mortgage. - He.took it on an -old debt, paying nothing. whatever for the -mortgage. It was no payment or extin* guishment of the former, debt; but merely- a - collateral security ; and if not-paid, Glover- may prosecute' Noah’ Parsons on the original consideration of-the debt. (Cumming v. Hackley, 8 John. 202. Green v. Hart, 1 John. 580.) This.mortgage, is a mere security. *of a pre-existing debt. (Jackson v. Willard, 4 John. 42, and cases there cited.)
Curia, per Woodworth, J.
Here is no- evidence1 that' Obed Crarath, when he conveyed-to Noah Parsons,- in" 1816,-had any.-title. It stated-that-he gave, a ¡deed. This, of' itself, is not sufficient -to warrant- a: .presumption' of title-: neither does the. fact that Noah Parsons paid-him'a consideration, afford any.-additional support. These acts may; have-been performed under a-belief that title was-acquired,when in reality none-passed. They.-fall.short ill making, out,; prima facie, competent evidence-that Obed Crarath had any .interest in the-land, - If we -examine the rest of - the,testimony, the presumption appears !to be- strong that the title-of the premises was acquired by the deed fromthecommissioners.
It. appeared -that- Samuel Crarath - died-'-in possession; which-is,-prima facie,- .evidence of seisin,
It is argued by,the-.counsel-for-the-defendant,-that this” deed enured to the benefit of-. Crarath’s guarantee- in-the [19]*19deed of 1816. Here also another difficulty lies'in the' defendant’s Way;'' We afe left'entirely in'the dark', whéther this deed was a mere quit-claim, dr contained a covenant of warranty. It may have been either.' The defendant, therefore, has not disclosed matter sufficient upon which" to raise either the technical doctrine of estoppel, or to "make the conveyance enure to" the henchí of Nóáh Parsons and his assigns. , . , ,,
In McCracken v. Wright, (14 John. 194,) it was held that by a quit-claim deed no title not in esse at the time would pass : [1] though' when" there was"a'warranty, it; would operate .as ah estoppel,.for avoiding circuity of action. The doctrine is laid down iti Co. Lit. sec. 446, and p. 265, a. b., that by a reléase" no right passeth but the right which the releaser hath *at thé time of the reléase made;' as if the son release to the disseisor the right which he hath or may have, without clause of warranty; afterthe death of his father, the’ son may enter" against hi’s own release, bécause he had no right at all at the timé of the release made, thé right being at the timé in the father." (Jackson v. Hubble, 1 Cowen, 616, S.P.)
It follows, if this view be correct, that the sécond deed given by Obed Crarath may be set up by the grantee deriv-" ing title under it; and that it cannot be urged in support of the supposed title of thé grantee under the first deed', for the reason that the defendant has not shown affirmatively' that there was a warranty: The question of estoppel, therefore, does not apply on the facts before" us.'
But if, for the sake of argument, it be conceded that the. title passed by the deed of 1816, then, inasmuch as that deed [20]*20has never been recorded, is the plaintiff affected by notice? There is certainly no express notice ; although, perhaps, in a proper case, the facts might be sufficient to put the party on inquiry. If there was notice, it was given to the agent The. lessor of the plaintiff does not appear to havq.been personally acquainted with the circumstances attending the giving of the mortgage, or the time it was given. Kellogg was the agent of the lessor of the plaintiff for the purpose of obtaining security for his debt against Noah Parsons. It was represented to him that the title was in Obed Crarath, that Noah Parsons had paid for the land, and held a bond for a deed, .and that Jared Parsons was equitably entitled to the land by reason of a purchase made by him at a sheriff’s sale under a judgment against Noah Parsons, entered in 1819. As to this purchase, it may be here observed that the title of Noah Parsons, if he had any, was subject to the lien of Marvin’s judgment in 1817, and was afterwards transferred to them by the sheriff’s deed, 1824. In truth, Jared Parsons, in 1820, when this arrangement took place for securing the debt of the lessor of the plaintiff, had no estate or title whatever, unless the commissioners’deed of 1819 to Obed Crarath-operated so as to enure to the benefit of Noah Parsons, the grantee in. the deed of 1816 ; and if it did so operate, then indeed Jared Parsons might have acquired a title liable to be *defeated by a sale under the Marvins’ judgment, which subsequently took place. Upon the supposition that the first deed was rendered valid by the execution of the commissioners’ deed to Obed Crarath, still it was an unrecorded deed ; and I perceive no objection in such a casé to Jared Parsons or any other persons, for valuable consideration and without notice, accepting a conveyance from Noah Parsons, in whom upon this principle, the title was vested. But here it is evident the parties acted under a misapprehension of the state of this title, provided it be conceded that the commissioners’ deed to Obed Crarath operated as a confirmation of the deed previously given to Noah Parsons; for in that case Noah Parsons-was the person to .convey; and had he executed the deed to Jared Parsons, and the latter executed [21]*21the mortgage to the plaintiff, then this question would be presented: If a judgment be rendered against A., who, in judgment of law, is, at the time, seised by virtue of a conveyance not recorded, and afterwards the land is sold under the judgment, and a conveyance executed, can that title be defeated by a purchaser who obtains a deed from A. subsequent to the judgment, but before a sale under it ? I think it cannot; because the sheriff’s deed relates back to the time of the judgment; and the command of the Ji. fa. is to cause the money to be made of the lands whereof the debtor was seised on the day of the rendition, or at any time afterwards. If this position be correct, then it follows that the purchaser under the judgment is not called on to make out notice of the first deed. The question does not arise.
If, however, I am mistaken on this point, and the judgment creditor is exposed to the risk of being defeated by reason of a deed from the defendant in the judgment subsequent to its rendition, then the question of notice would become material. But here it cannot arise, because no deed was procured from Noah Parsons. As to him, his title remains as it was. He has done no act to divest it.
It seems to me, therefore, that the doctrine of notice may be laid out of the case. Admitting that the agents of the lessor of the plaintiff, when they procured a deed from Obed Crarath to Jared Parsons, and at the time he mortgaged, *knewthat Crarath had given a deed previously to Noah Parsons, such knowledge would be immaterial on the fol lowing grounds: first, because if Crarath, in the first deed, merely released or quit-claimed when he had no title, which it appears he had not, then nothing passed; and the lessor of the plaintiff or Jared Parsons was justified in accepting a deed. They were not bound to notice a conveyance altogether inoperative. If, on the other hand, the first conveyance of Crarath was confirmed by the commissioners’ deed to him, then the land became bound by Marvins’ judgment; and Crarath had nothing to convey, whether there was notice or not.
If this cause had turned on the point whether the mort[22]*22gage was made upon good and, valuable consideration, I ' think there is no cause to question it on that gpoupd. A debt against .Noah ^Parsons, .assumed ,by-J|red ¡Parsons, was undoubtedly, a suffiQjent( consideration. ..The result of.my opinion is, th.at, on.the¡fpcts.staf e&.in the case, the plaintiff is,entitled to judgipent. My .opinion .rests on this ground : that Crarath having conveyed in 1,816, and it not appearing .that he then.had.any title, or that the deed was.wjth,warranty,.nothing passed; .and.consequently there was .nothing .upon which the lien of ¡the Marvins’ ■judgment could attach ; and that Crarath, .after lie obtained f ‘ '2 • »;'■ ft « ’ V" ‘ . ¡ ,r, „ ■ . i .. title by the commissioners’ deed, was at liberty .to . convey that title,to any purchaser .or mortgagee .for .yaluq^le consideration. The deed to Jared Parsons, and his mortgage to the lessor of the plaintiff entitled him to recover.
But as it is more .than probable .that material .facts .are not before us.; particularly as (tjip ,attentiqnfqf ¡the pqrtjes does not .appear to haye been dirqqted .to phe question whether .Ohed Crarath had .any title in 1816, .and what was the form of the deed .or conveyance by him .then executed, upon ffe ascertainment of yvhichiaqts the pause may assume a different aspeqt, I thipk the ends .of justice require .that a new trig! be granted, .with posts to.abide ¡the event.
Rule accordingly.
Per Savage, Ch. J. in Livingston, v. The Peru Iron Co. 9 Wen. 520, 1, Bell v. The Commonwealth, 1 J. J. Marsh 550. Per Lord, Ch. J of Ireland, 3 Ridgw. P. C. 291, N. Ricard v. Williams, 7 Wheat. 59. Cook v. Wilson’s adm’rs, Lit. Sel. Cas. 489. 1 Dom. B. 3, tit. 6, § 4, Art 1.