#### Darius Newhall *versus*Thomas Burt *et al.*

A deed of land and a bond from the grantee to convey it to the grantor, bearing different dates but executed and delivered at the same time, constitute a mortgage.

Although such bond may not be recorded, yet a subsequent purchase or attachment of the land with notice of the bond, will not be valid. Semble.

To constitute such notice, the purchaser or creditor must know or have reason to believe that the bond is of the same date with the deed, or so executed and delivered as to form a part of the same transaction.

Trespass *quare clausum fregit.*Plea, the general issue. Trial before *Morton*J.

The supposed trespass consisted in levying an execution in favor of Burt and against Nehemiah Newhall, upon the *locus in quo*as the property of Nehemiah, in pursuance of an attachment made January 17, 1826.

The plaintiff proved that he had been a long time in possession of the close.

The defendants then produced a deed of the land from the plaintiff to Nehemiah Newhall, dated the 18th of February, 1823, acknowledged on the 19th, and recorded on the 21st.

The plaintiff then produced a bond made to him by Nehemiah Newhall, dated February 19, 1823, for the reconveyance *163of the land upon the payment of 2500 dollars within three years. The bond was recorded February 11, 1826; which was after Burt’s attachment.

*Oct.*23*d.*

Parol evidence was admitted, (though objected to by the defendants,) from which it appeared that the plaintiff and Ne hemiah Newhall made a contract, that the plaintiff should convey the land to Nehemiah, and that he should have a right to a reconveyance upon the payment of 2500 dollars at any time within three years, but that the instrument should be so made as not to constitute a mortgage. It was supposed that this object could be obtained by giving to the deed and bond different dates, and they were accordingly so dated ; but they were in fact executed and delivered at the same time.

The plaintiff contended that the deed and bond operated as a mortgage, and that therefore Burt’s attachment was void; but the judge was of opinion, that unless Burt had previous notice of the bond, his attachment was valid.

The plaintiff then introduced evidence tending to show that Burt had such notice. And on this point the jury were instructed to find for the defendants, unless they were satisfied that Burt knew or had reason to believe that there was a bond for a reconveyance of the land, of the same date with the deed, or if of a different date, so executed as to form a part of the same transaction.

A verdict was returned for the defendants ; whereupon the plaintiff moved for a new trial on the ground of a misdirection to the jury.

*L. Williams*and Coffin, in support of the motion,

objected that the jury were made to judge of the effect of the instruments, whereas that should have been determined by the court. The instruction should have been, that if Burt had knowledge ol‘ tlie transaction such as it was, the verdict should be for the plaintiff; for whether the papers created a mortgage, was a question of law.

*W. Baylies*and Hathaway, contra,

as to what is necessary to constitute sufficient notice, cited *M'Mechan*v. *Griffing,*3 Pick. 149 ; [2nd edit. 154, 157; and cases cited in notes;] *Norcross*v. Widgery, 2 Mass. R. 506 ; *Hine*v. Dodd, 2 *164Atk. 275 ; *Jolland*v. *Stainbridge,*3 Ves. 478 , *Jackson*v *Wood,*12 Johns. R. 242 ; *Newhall*v. *Peirce,*5 Pick. 450.

The opinion of the Court was afterward drawn up by

Parker C. J.

The only question which relates to the merits of this case, is, whether the instruction of the judge was right in regard to the necessity of proving that the defendant, Thomas Burt, had notice of the bond of reconveyance, which was produced in evidence by the plaintiff, to show that his conveyance to Nehemiah Newhall was a mortgage and not an absolute conveyance.

By the evidence reported it appears that the bond was not intended to operate as a defeasance, and so to constitute a mortgage ; but that the transaction should stand as an absolute conveyance, with an obligation to reconvey, upon payment of the consideration money in three years. Still, if executed or delivered on the same day, they would, between the parties, in law and equity, operate as a conditional conveyance or mortgage ; but since the *St.*1802, c. 33, whether the bond is intended as a defeasance or not, it is to have no such effect unless it is recorded at large in the registry of deeds, except against the parties to the transaction.1

' The trial proceeded on the ground, that notwithstanding the bond was not recorded before the attachment, yet if the attaching creditor knew that such a bond existed and amounted to a defeasance, his attachment should not prevail against the title of the mortgagee ; and though this point in relation to the effect of unregistered bonds with notice has not been precisely decided, by analogy to the judicial opinions on -the subject of unregistered deeds with notice, it is probable this ground was correctly assumed. At any rate, it was in favor of the plaintiff, and he had the full benefit of-the law. applicable to unregistered deeds.

The judge held that in order to prevail against the attachment, the jury must be satisfied that there was a bond executed on the same day, or that it was so executed and delivered as to be a part of the same transaction and constitute a mort*165gage.2 We think this direction right, because the mere existence of a bond to reconvey, did not of itself affect the title to the land. By the record, the title was in the judgment debtor ; the bond was in the pocket of the grantor ; it might, according to the terms of it, and the time and manner of its execution and delivery, operate as a mortgage between the parties, or it might be a mere personal contract, giving a right of action only for damages in case the condition should not be performed ; a contract wholly independent of the title to the land. The knowledge therefore that a bond was given by the grantee to the grantor, without any knowledge of its effect, or of the intention of the parties that it should be a mortgage, would be no proof of fraud in a subsequent purchaser or attaching creditor. Of consequence, the judgment must be according to the verdict.

2

 See *Kelleran*v. Brown, 4 Mass. R. 443; *Rice*v. *Rice, 4*Pick. (2nd ed.) 353, note 1; *Flagg*v. Mann, 14 Pick. 467; *Trull*v. *Skinner,*17 Pick. 213; 1 Hilliard's Abr. 267

1

 This exception is now extended to third persons, having actual notice oi the instrument of defeasance. Revised Stat. *c.*59, § 27.