Weld v. Madden

29 F. Cas. 612, 2 Cliff. 584

• Court: U.S. Circuit Court for the District of Maine
• Decided: September 15, 1866
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

The demand-ant does not controvert the correctness of the first instruction, nor can he with any hope of success, as such undoubtedly was the law at the date of this transaction. Conceding that, he nevertheless insists that the second instruction is erroneous, because it admits that the person in possession under the grantor at the date of the deed Burbank to Freeman remained for some months in the house with the grantee. His theory is that the change of possession must be immediate and complete in order to constitute the basis of the presumption of notice, but he refers to no decided case which gives any support to that theory. Red-man was in possession of the premises at the date of the deed, but whether as tenant at will, or otherwise, does not appear. He claimed no title, and at once became a boarder in the family of the grantee. During the next summer he left the premises; and the grantee and those claiming under him have been in the open, notorious, and exclusive possession of the premises ever since, and for a period of more than sixteen. years, when the attach-. ment was made. Numerous authorities might be referred to in support of the ruling of the court, but it seems to be unnecessary, as they are all one way. The matters of fact assumed in the instruction have been found by the jury in favor of the tenant, and therefore in determining the legal questions they must be regarded as true. Such being the rule of law, it follows, as a necessary consequence, that if the instruction was correct, the demandant had implied notice of the deed under consideration.

The second exception impliedly concedes that the deed in question was duly executed, and that the demandant had due notice of its existence at the date of his attachment, but denies that the description in the deed is sufficient to convey to the tenant a good title to the premises. Evidently the question here presented is entirely separate and distinct from the one just decided. They should be separately examined, and must be separately decided, as nothing but confusion of ideas can result from considering them together. Prior title is in the tenant if the description in the deed Burbank to Freeman is sufficient to convey the land. Beyond doubt Burbank was the lawful owner of the whole of the Joseph Chamberlain lot, and it is equally clear that he conveyed to Freeman, by the deed of the 18th of August, 1S3G, all of the lot which he thus

acquired, except what he had before conveyed by deed to the same grantee. The argument of the demandant is, that the recital negatives the theory that the tenant held and owned the whole lot, but the proposition as between the parties is refuted by the express words of the deed. The grantor did not intend to convey the land twice, but he evidently meant to convey the whole lot, and could not be heard to aver the contrary.. All that he intended by the recital was to exclude the conclusion of a double conveyance of the same land, that is, he intended to convey the whole lot, unless he had previously conveyed a part of it to the same grantee. The inference perhaps is, that he had previously conveyed a part of the lot to the grantee,- but the recital contained no such definite statement, nor are there any words by which either the deed or the land supposed to be reserved can be identified. Granting that the deed was a good and sufficient conveyance as between the parties, then it follows that the demandant cannot call the title in question, because he is a subsequent purchaser, with implied notice of the prior deed. His title under the finding of the jury is no better than it would be if the deed Burbank to Freeman had been recorded at its date, and if it had been it is very clear that the levy would be of no avail.' Implied notice of a valid prior deed defeats the title of a subsequent purchaser, and it must be held to have the same effect upon a subsequent attachment of the same land. Much of the error in the argument for the demandant arises from commingling the two questions together. Unless the de-mandant had implied notice of the deed Burbank to Freeman, he must prevail; but if he had such-notice, then he has no title whatever, if the deed between those parties was a sufficient and valid conveyance. The verdict of the jury shows that he had such notice, and it has already been shown that, as between the parties, a good title was conveyed to the grantee. The effect of the recital is to bind the grantor as well as the grantee, so that in no event could the former be heard to claim anything in the land described. Assume that the inference is that the grantor had previously executed a deed of a part of the lot to the grantee, still it is obvious that the recital of that fact could not lessen or impair the title of the grantee, as between the parties and the demandant, as a subsequent purchaser with notice is in no better condition. But estoppels must be certain to every intent, and I am of the opinion that the language of the recital is too indefinite to sustain the views of the demandant. Besides, he claims nothing under the recital, and consequently is in no condition to make the objection which is the foundation of his motion. Throughout the argument he fails to show in what manner he would be benefited by a new trial, if the instructions of the court as to implied notice are correct. He does not even suggest that the whole lot was not conveyed to Freeman prior to the attachment. • All he pretends is, that a part of it was conveyed before the date of the deed given in evidence; but it is difficult to see bow that fact, if shown, could operate to bis advantage, and be gives no explanations upon tbe subject.

Special reference is also made by tbe demand-ant to tbe other instructions of tbe court, but it is unnecessary to examine those suggestions, as no such exceptions were taken at- tbe trial, and no sucb objections are embraced in tbe motion.

Being of tbe opinion that tbe finding of the jury is fully sustained by the evidence, the motion for new trial is overruled. Judgment on tbe verdict.