Perrin v. Reed

Levy of Execution. Record. Deed. Notice. Attachment. Quere, whether'the statute of 1854,* relative to the appraisal of real estate situated in two or more adjoining towns in the case of a levy of execution thereon, applies to the case of a levy of an execution upon two pieces of land not adjoining each other, hut situated in adjoining towns. Piekpoint, J. But if, in such case, the appraisers are appointed partly from both towns, the defect, if any, in the mode of appointing them, is so merely informal as to be cured by the neglect of botli.parties to apply within two years to the supreme court to vacate the levy, under the 49th sec. of chap. 45 of the Compiled Statutes, (Sec. 26, chap. 47, General Statutes.) The fact that an execution is levied upon real estate without noticing a mort- • gage which exists upon it, is a matter of which the debtor cannot complain. The record of a deed in one town conveying land in such town is not of itself constructive notice of the conveyance by the same deed of land lying in another town. But if one sees such record, and reads it and has such knowledge of the premises as to know from the description that the land in the other town was conveyed by the deed so recorded, this constitutes notice of the conveyance of the land in such other town. An attaching creditor of real estate with notice, either actual or constructive, of the true state of the debtor’s title, is bound by such notice, and stands in no better position than a purchaser with the same notice. But notice of the sale of personal property without change of possession will not affect the claim of an attaching creditor of the vendor thereto.

Ejectment for a tract of land in Williamstown. Plea the general issue, and trial by jury at the January term, 1861-, in Orange County. The plaintiff introduced the copy of a deed from Andros Reed to Andros A. Reed, dated December 10th, 1842, describing the land sued for, and also other land in Brookfield, and being what is called the Reed farm. The plaintiff then introduced a writ in his favor against Andros A. Reed, dated April .19th, 1852, and served in Brook-field on the same day, and in Williamstown by attaching all the land in Williamstown, on the 20ft of April, 1852 ; also the record of a judgment on said writ, and levy of execution thereon, against Andros A. Reed, rendered in July, 1854, on which execution was issued, which execution was levied upon the land in question December 6th, 1854. To the admission of this levy the defendants objected on the ground that the appraisers did not reside, and were not freeholders in the town where the laud lay, and because there were two separate and distinct pieces of land set off in the same levy,' not connected, but being from two to three miles apart, and lying in different towns, and both appraised by the same men, and it was admitted by the plaintiff that two of the appraisers resided in Brookfield, and the other in Williamstown. The court overruled the objection pro forma, and admitted the record of the levy, and for the purposes of the trial treated it as valid ; to which the defendants excepted. The defendants introduced a deed from .Andros A. Reed to Andros Reed, dated March 12th, 1849, of the Reed farm, containing land in Brookfiqjd and Williamstown, including the land sued for in this action, which deed was recorded in Brook-field, March 12th, 1849, and in Williamstown, April 26th, 1852; also a deed from Andros and Polly Reed, to Andros A. and William F. Reed, dated March 13th, 1851, and recorded in Brookfield the same day, and recorded in Williamstown, April 26th, 1852, of the same land; also a mortgage deed from Andros A. Reed and William F. Reed to Andros Reed, dated March 13th, 1851, and recorded in Brookfield, March 14th, 1851, and in Williamstown, April 26th, 1852, of the same land, which deed was to secure the maintenance of the said Andros Reed and his wife and daughters, and to pay his debts ; accompanied with proof that the said Andros and one daughter was still living, and supported by the defendant, William F. Reed, and that a portion of the debts were still unpaid. The defendants then introduced testimony tending to prove that the plaintiff, at the time he made the attachment of said land In Williamstown, had full knowledge that the same had been conveyed by Andros A. Reed to Andros Reed, together with the other conveyances of the same land as contained in the deeds above referred to, and^ntroduced by the defendants. This evidence was objected to by the plaintiff, but admitted by the court; and the plaintiff introduced testimony tending to prove that he had no such notice. The evidence tending to show such notice, consisted of evidence tending to show that on the evening of the plaintiff’s attachment in the town of Brookfield, being the evening before the attachment in Williamstown, and before either attachment was made, the plaintiff went to the town clerk’s office in Brook-field, to see if any previous attachment or conveyance of real estate of Andros A. Reed had been made, and that' he there read the record of said deed from Andros A. Reed to Andros Reed, and of the other subsequent deeds, and read the description of the lands therein. The plaintiff objected to the introduction of this evidence on the following grounds: . 1. That notice of a prior unrecorded deed of the judgment debtor, would not affect the rights of an attaching creditor. 2. That as this deed was not recorded in Williamstown, it was to be regarded, as to the premises in question, as an unrecorded deed, and that the reading of the record of it in a different town from that where the land was situated, was no notice that any such original deed existed as the record indicated. The court admitted the evidence as competent to go to the jury, to which the plaintiff excepted. This was the only evidence of notice to the plaintiff, before the attachment, of the deed from Andros A. Reed to Andros Reed, dated March 12th, 1849, or that Andros A. Reed had conveyed away the premises, except evidence tending to show that the plaintiff had such previous information as to the Reed farm, that on reading the description of the land purporting to have been conveyed by the deed, he might have known that it purported to convey the premises in question. The plaintiff also introduced the record of a quit claim deed of the same land from W. F. Reed to David W. Reed, dated November 8th, 1852, and recorded the same day in both towns. The defendants then introduced a deed of the same land from the said David W. Reed and his wife to the defendant, Chester L. Reed and to Emily B. Reed, the wife of the defendant, William Reed, dated January 25th, 1855, and recorded the same day. The defendants claimed, and requested the court to instruct the jury, that if, from the proof, they should find that the plaintiff was informed and had knowledge of the existence of said deed from Andros A. Reed to Andros Reed, dated March 12th, 1849, and the other deeds and conveyances of said land, before he made his said attachment, the defendants were entitled to a verdict; that although by the deed from Andros and Polly Reed to Andros A. Reed and William F. Reed, dated March 13th, 1851, Andros A. Reed would appear to own one undivided half of the land, still, as there was an outstanding mortgage on said land back to said Andros,' the plaintiff could not levy upon the equity of redemption of the said Andros A. Reed, in the manner of this levy, nor would the levy entitle him to hold one half of the land. But the court refused to- charge as requested, but did charge, among other things not objected to, that if the jury should find that the plaintiff had notice before his attachment that the premises in question had been conveyed to Andros Reed, still the plaintiff’s attachment and levy would hold one undivided half of the premises which Andros A. Reed acquired by the deed to him and William F. Reed, dated March 13th, 1851, although that deed was not recorded in Williamstown till after the attachment; and that neither the fact that the levy was upon the entire estate in the premises, instead of an undivided half, nor the fact that the levy was made without noticing the mortgage to Andros Reed, could be set up by the judgment debtor, or these defendants, to avoid the levy, or to prevent its operation to vest in the plaintiff the undivided half owned by Andros A. Reed, the execution debtor; and that, although, as between the plaintiff and Andros Reed, the mortgagee, the plaintiff might take it subjected to the mortgage, yet the defendants could not set up that mortgage to defeat a recovery in this action. The jury returned avei diet for the plaintiff for one undivided half of the premises. To the refusal of the court to charge as requested, and to the charge as given, the defendants excepted.