Goodenow, J.
This is a writ of entry, by which the demandant claims to recover the western half of a farm in Whitney, by virtue of a mortgage deed, dated May 7, 1842, and recorded May 9, 1842, from Samuel Ackley to Joseph Cutler, and by Cutler assigned to his intestate on the 26th of March, 1846.
At the time of the execution of said mortgage and assignment, the record title to the premises was in Ralph Ackley, to whom Samuel-Ackley had conveyed on the 13th of December, 1839.
The tenant claims title under a deed from Ralph Ackley to him dated October 3, 1849, duly recorded.
To avoid the effect of this title, the demandant contended that the deed from Samuel Ackley to Ralph Ackley was fraudulent as against creditors of Samuel Ackley, and that the tenant was a party to and had knowledge of the fraud, and for this reason could not avail himself of his title under Ralph Ackley.
This question was submitted to the jury, and their verdict was in favor of the tenant.
The demandant further contended that there had. been a reconveyance of the premises from Ralph Ackley to Samuel, prior to the mortgage to Cutler, and that the tenant had notice of such reconveyance before his purchase of Ralph Ackley, and was therefore precluded from availing himself of his title under Ralph. There was no record of any deed of reconveyance from Ralph to Samuel, nor was any such deed produced. The plaintiff requested the judge to instruct the jury, “ that if the conveyance from Samuel to Ralph Ackley was bona fide and valid, and there was a re-conveyance of the western half of the farm from Ralph to Samuel on May 7, 1842, and Sevey had such notice of its existence as men would usually act upon in the ordinary [527]*527affairs of life, the mortgage would be good, and Sevey’s deed could not prevail against it.” But the judge declined to give this instruction. He had previously instructed the jury to the effect that such a position could not be successfully maintained unless the tenant had actual notice of such re-conveyance prior to the taking of his deed from Balph Ackley.
We are of opinion that the law did not require that the presiding justice should have given the instructions to the jury in the language requested. The instruction given was in the language of the statute. If any judge should undertake to define precisely what is actual knowledge, within the statute, and what shall and what shall not be evidence of actual knowledge, for the consideration of the jury, guided by the conflicting opinions which have been heretofore given, he might only “ darken counsel, by words without knowledge.”
In Curtis v. Mundy, 3 Met. 405, Putnam, J., when considering the statute of Mass., which is identical with that of Maine, says, “ The clause relating to persons having actual notice thereof was substantially to confirm the decisions which had been made theretofore, and which had placed such persons in the same condition as if they had had the notice which was to be given by the registry. And the instruction of Morton, J., to the jury, “ that it was not necessary, in order to enable the tenant to hold under his deed that he should prove that the demandant had positive and certain knowledge of its existence; that it was not necessary that the demandant should have such knowledge as he would acquire from having seen the deed, or being told thereof by the grantor; but that the notice was sufficient if it was such as men in the ordinary affairs of life usually act upon,” upon exceptions taken to it was held not to be erroneous. The court say, “ Something less than positive personal knowledge of the fact of the conveyance would be sufficient to constitute actual notice, within the true intent and meaning of the statute.” “ It is exceedingly difficult, if not impossible, to [528]*528define beforehand what information shall or shall not be sufficient. But if it were given by those persons who, (as in the case at bar) knew the party, and much of his transactions, and who spake not vaguely; especially if the party himself, who was to be affected by the notice, was so well satisfied of its truth as again and again to acknowledge the fact — it must be sufficient. No honest man, after such notice, could undertake, or if he did, should be permitted to acquire title to the land which, from information given on certain knowledge, he believed had been conveyed. We think the notice should be so express and satisfactory to the party as that it would be a fraud in him subsequently to purchase, attach, or levy upon the land, to the prejudice of the first grantee. In the language of Lord Hardwícke, as adopted by Mr. Justice Story in his book upon Equity Jurisprudence, sec. 397, “the taking a legal estate, after notice of a prior right, makes a person a mala fide purchaser. This is a species of fraud, and dolus mdlus itself.” 3 Atk., 654. By the statute of 1821, deeds of real estates were required to be signed, sealed, acknowledged and recorded; and to be of no effect unless recorded, against any, except the grantors and their heirs. There is no exception in the statute as to persons having knowledge of their existence. The common law, as applied by the judges in analagous cases, made the exception as to persons having notice of their existence. It was considered that such persons could not purchase honestly when the title was in this condition, and thereby overreach a prior purchaser, whose deed remained unregistered. Judge Trowbridge says, “ If the second purchaser had notice of the first conveyance, before he purchased, no estate would pass to him by the second deed, though recorded before the first, because it is fraudulent.” Readings in 3 Mass., 573. Now it seems to us that what was fraud before the Revised Statutes, is fraud now. The courts may have gone too far in 'deciding that “ the visible possession of an improved estate by a grantee, under his deed, is in all cases implied notice of the sale to subsequent purchasers, although his deed has not [529]*529been recorded.” Under our statute a disseizee may convey, if he has a right of entry.
The R. S., chap. 91, sec. 26, requiring actual notice, was intended to control the construction which had been given by the courts that the possession of the grantee alone, if open, continued and exclusive, would be sufficient foundation in law from which to infer notice to subsequent purchasers. It was not intended to change the moral bearings of the question or the rules of the common law, by making a transaction honest which was before fraudulent. It was to prevent a legal inference from inadequate premisos; to repudiate a course of inconclusive reasoning. The subsequent purchaser might not know the fact, if it existed, that a prior purchaser was in possession; or if he did, that he claimed to hold the fee, &c. He might suppose that ho was only a tenant holding over; or a disseizor of his grantor, who had a right of entry. If he was acting in good faith he might well suppose that his grantor would not undertake to sell to him an estate which he did not own, or had previously conveyed.
In Pomroy v. Stevens, 11 Met., 214, Shaw, C. J., held that evidence of open occupation, possession and cultivation of land, and fencing it, by a party who has an unrecorded deed thereof, is not sufficient to warrant the inference that a third person had notice of such deed, and his ruling was confirmed by the full court.
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Goodenow, J.
This is a writ of entry, by which the demandant claims to recover the western half of a farm in Whitney, by virtue of a mortgage deed, dated May 7, 1842, and recorded May 9, 1842, from Samuel Ackley to Joseph Cutler, and by Cutler assigned to his intestate on the 26th of March, 1846.
At the time of the execution of said mortgage and assignment, the record title to the premises was in Ralph Ackley, to whom Samuel-Ackley had conveyed on the 13th of December, 1839.
The tenant claims title under a deed from Ralph Ackley to him dated October 3, 1849, duly recorded.
To avoid the effect of this title, the demandant contended that the deed from Samuel Ackley to Ralph Ackley was fraudulent as against creditors of Samuel Ackley, and that the tenant was a party to and had knowledge of the fraud, and for this reason could not avail himself of his title under Ralph Ackley.
This question was submitted to the jury, and their verdict was in favor of the tenant.
The demandant further contended that there had. been a reconveyance of the premises from Ralph Ackley to Samuel, prior to the mortgage to Cutler, and that the tenant had notice of such reconveyance before his purchase of Ralph Ackley, and was therefore precluded from availing himself of his title under Ralph. There was no record of any deed of reconveyance from Ralph to Samuel, nor was any such deed produced. The plaintiff requested the judge to instruct the jury, “ that if the conveyance from Samuel to Ralph Ackley was bona fide and valid, and there was a re-conveyance of the western half of the farm from Ralph to Samuel on May 7, 1842, and Sevey had such notice of its existence as men would usually act upon in the ordinary [527]*527affairs of life, the mortgage would be good, and Sevey’s deed could not prevail against it.” But the judge declined to give this instruction. He had previously instructed the jury to the effect that such a position could not be successfully maintained unless the tenant had actual notice of such re-conveyance prior to the taking of his deed from Balph Ackley.
We are of opinion that the law did not require that the presiding justice should have given the instructions to the jury in the language requested. The instruction given was in the language of the statute. If any judge should undertake to define precisely what is actual knowledge, within the statute, and what shall and what shall not be evidence of actual knowledge, for the consideration of the jury, guided by the conflicting opinions which have been heretofore given, he might only “ darken counsel, by words without knowledge.”
In Curtis v. Mundy, 3 Met. 405, Putnam, J., when considering the statute of Mass., which is identical with that of Maine, says, “ The clause relating to persons having actual notice thereof was substantially to confirm the decisions which had been made theretofore, and which had placed such persons in the same condition as if they had had the notice which was to be given by the registry. And the instruction of Morton, J., to the jury, “ that it was not necessary, in order to enable the tenant to hold under his deed that he should prove that the demandant had positive and certain knowledge of its existence; that it was not necessary that the demandant should have such knowledge as he would acquire from having seen the deed, or being told thereof by the grantor; but that the notice was sufficient if it was such as men in the ordinary affairs of life usually act upon,” upon exceptions taken to it was held not to be erroneous. The court say, “ Something less than positive personal knowledge of the fact of the conveyance would be sufficient to constitute actual notice, within the true intent and meaning of the statute.” “ It is exceedingly difficult, if not impossible, to [528]*528define beforehand what information shall or shall not be sufficient. But if it were given by those persons who, (as in the case at bar) knew the party, and much of his transactions, and who spake not vaguely; especially if the party himself, who was to be affected by the notice, was so well satisfied of its truth as again and again to acknowledge the fact — it must be sufficient. No honest man, after such notice, could undertake, or if he did, should be permitted to acquire title to the land which, from information given on certain knowledge, he believed had been conveyed. We think the notice should be so express and satisfactory to the party as that it would be a fraud in him subsequently to purchase, attach, or levy upon the land, to the prejudice of the first grantee. In the language of Lord Hardwícke, as adopted by Mr. Justice Story in his book upon Equity Jurisprudence, sec. 397, “the taking a legal estate, after notice of a prior right, makes a person a mala fide purchaser. This is a species of fraud, and dolus mdlus itself.” 3 Atk., 654. By the statute of 1821, deeds of real estates were required to be signed, sealed, acknowledged and recorded; and to be of no effect unless recorded, against any, except the grantors and their heirs. There is no exception in the statute as to persons having knowledge of their existence. The common law, as applied by the judges in analagous cases, made the exception as to persons having notice of their existence. It was considered that such persons could not purchase honestly when the title was in this condition, and thereby overreach a prior purchaser, whose deed remained unregistered. Judge Trowbridge says, “ If the second purchaser had notice of the first conveyance, before he purchased, no estate would pass to him by the second deed, though recorded before the first, because it is fraudulent.” Readings in 3 Mass., 573. Now it seems to us that what was fraud before the Revised Statutes, is fraud now. The courts may have gone too far in 'deciding that “ the visible possession of an improved estate by a grantee, under his deed, is in all cases implied notice of the sale to subsequent purchasers, although his deed has not [529]*529been recorded.” Under our statute a disseizee may convey, if he has a right of entry.
The R. S., chap. 91, sec. 26, requiring actual notice, was intended to control the construction which had been given by the courts that the possession of the grantee alone, if open, continued and exclusive, would be sufficient foundation in law from which to infer notice to subsequent purchasers. It was not intended to change the moral bearings of the question or the rules of the common law, by making a transaction honest which was before fraudulent. It was to prevent a legal inference from inadequate premisos; to repudiate a course of inconclusive reasoning. The subsequent purchaser might not know the fact, if it existed, that a prior purchaser was in possession; or if he did, that he claimed to hold the fee, &c. He might suppose that ho was only a tenant holding over; or a disseizor of his grantor, who had a right of entry. If he was acting in good faith he might well suppose that his grantor would not undertake to sell to him an estate which he did not own, or had previously conveyed.
In Pomroy v. Stevens, 11 Met., 214, Shaw, C. J., held that evidence of open occupation, possession and cultivation of land, and fencing it, by a party who has an unrecorded deed thereof, is not sufficient to warrant the inference that a third person had notice of such deed, and his ruling was confirmed by the full court. Wilde, J., in delivering the opinion of the court, said: “ Whether the demandant had notice of the defendant’s title, or not, was a question of fact for the jury to decide. But the competency and sufficiency of the evidence to prove the fact were within the province of the court to decide.”
In Spofford v. Weston, 29 Maine R., 140, the court adopt the construction given in the case last named, “ and say that tho Revised Statutes made an essential alteration of the law in this respect,” but do not decide what shall and what shall not be proof of “ actual notice.”
We are of opinion that it may be proved by circumstances like any other fact. Such circumstances as those before [530]*530alluded to by Putnam, J. And that possession and improvement by the first purchaser is one circumstance proper, with others, for the consideration of the jury, though not alone sufficient. The evidence from all the circumstances must be such as to give the jury reasonable satisfaction that the second purchaser had notice of the prior deed, before his purchase. In the case at bar all the circumstances tending to establish the fact of notice, were submitted to the jury.
We can perceive no error in the instruction which was actually given.
It would be difficult for us to imagine a chain of circumstances which would satisfy a jury that the defendant had actual notice of the existence of a prior deed, when he swears positively that he had not.
Exceptions and motion overruled,.
Judgment on the verdict.
Tenney, C. J., Rice, Hathaway, Appleton, Cutting, J. J., concurred.