#### Jacob Holbrook *versus*Vinson Tirrell.

The mere cancellation of a deed by the grantee, who holds land under it, does not divest his title or revest it in the grantor.

But where A. conveyed land to B. by a deed which was never recorded, though B. held possession of the land under it, and B. having sold the land to C., gave up the deed to A. and had it cancelled, and A. made a new deed of the land to C. which was recorded, it was held, that C.’s title to the land should prevail against that of a creditor of B. to whom it was subsequently set off on execution.

This was a petition for partition of land in Braintree, of which the petitioner averred that he was seised of an undivided moiety as tenant in common with the respondent. The respondent pleaded that he was sole seised, and traversed the petitioner’s seisin.

At the trial, before *Morton*J., the following facts were proved or admitted. On December 21st, 1809, Reuben *107Blanchard, then owning an undivided moiety of the land as tenant in common with Ebenezer Blanchard, for a \aluable consideration, conveyed his moiety by deed of release to co-tenant Ebenezer. But this deed was never recorded.

On October 20th, 1820, an undivided moiety of the land was set off to Amos Stetson on an execution against Ebenezer Blanchard ; and Stetson soon after conveyed it to the respondent. The respondent afterwards bargained with Ebenezer Blanchard for the other moiety and paid him for it; but, instead of Ebenezer Blanchard’s giving the respondent a deed, the old deed of Reuben Blanchard to Ebenezer, by an arrangement between the parties, was returned to Reuben and cancelled ; and Reuben gave a warranty deed of a moiety of the land to the respondent, which was recorded April 22d, 1822.

On January 18th, 1828, the petitioner levied an execution which issued on a judgment in his favor against Ebenezer Blanchard, for a debt which was due before the execution of the last deed, upon a moiety of the land.

A verdict was found for the respondent, which was subject to the opinion of the whole Court.

*Metcalf,*for the petitioner.

There was a vested estate m Ebenezer Blanchard, which could not be divested by cancel-ling the deed to him. He, therefore, continued owner in fee of a moiety of the land when it was taken on the petitioner’s execution. By our law, real estate can be divested (except it be *in invitum)*only by deed or devise. Even a term for years cannot be surrendered by parol. *St.*1783, c. 37, §1. *A fortiori,*not a fee simple. Though a second lease, given after the first is cancelled, may operate as an estoppel against the lessor, yet the prior term created by the cancelled lease may be set up, by a tenant of the premises, in bar to an ejectment by the remainder-man. *Roe*v. *Archbishop of York,*6 East, 86 ; *Woodward*v. *Aston,*1 Freem. 429 *; S. C. 2*Mod. 96 ; S. *C.*1 Vent. 297. If then Ebenezer Blanchard’s title was not divested by his surrender and cancelling of the deed to him, the subsequent deed given by Reuben Blanchard conveyed nothing, for he had nothing to convey ; and the respondent has no legal defence.

That the cancelling of a deed will not divest property *108which has once vested by transmutation of possessior; is one the rudiments of the law. Co. Litt. 225 *b,*Butler’s note, 136 ; *Clavering*v. *Clavering,*Prec. Ch. 235 ; *Bolton*v. *Carlisle,*2 H. Bl. 263 ; *Hatch*v. *Hatch,*9 Mass. R. 311; *Dando*v. *Tremper,*2 Johns. R. 87; *Lewis*v. Payn, 8 Cowen, 75.

Though the cancelling of a mortgage discharges the debt, yet it does not, by the common law, revest the estate in the mortgager. That must be done by deed. *Harrison*v. *Owen,*1 Atk. 520. Hence the necessity of our statute provision to give effect to a discharge of a mortgage by entry of an acknowledgment of satisfaction on the margin of the record. *St.*1783, c. 37, § 6.

*Parsons C.*J., in *Marshall*v. *Fisk,*6 Mass. R. 32, says, the original grantor in that case continued seised of his moiety, *not only*on the ground of fraud in the second conveyance, *but also “*because the cancelling of the first deed did not divest the grantee of his moiety conveyed by it.” The case of *Commonwealth*v. *Dudley,*10 Mass. R. 403, was a process against the party who had consented to a new transfer by the former owner, and who had received a full consideration for the land which he attempted to hold against his own agreement and acts. It was as strong a case as possible of a moral estoppel, and was explicitly put upon the ground of a fraud in the defendant himself. It would be precisely in point, if Ebenezer Blanchard were the petitioner in the case at bar ; and even then the question might be considered worthy of revision. The remarks of *Parker C.*J., in *Conway*v. *Deerfield,*11 Mass. R. 332, show that he did not suppose that the case of *Commonwealth*v. *Dudley*impugned the doctrine asserted in *Marshall*v. *Fisk.*

The respondent knew that Ebenezer Blanchard had a deed from Reuben Blanchard, and having voluntarily chosen a mode of acquiring a title, he must abide by the consequences of the irregularity. The petitioner’s debt was due before, and his rights are not to be impaired by such proceedings. According to C. J. *Mellen's*view óf the doctrine in *Commonwealth*v. *Dudley,*the petitioner’s case is not affected by it. *Barrett*v *Thorndike,*1 Greenleaf, 78.

*109After the argument *Metcalf*referred to *Botsford*v. *More*house, 4 Connect. R. 550, (which he had not before seen,) as an adjudication on the precise point before the Court, and also to *Gilbert*v. *Bulkley,*5 Connect. R. 262.

Leland, for the respondent,

relied on *Commonwealth*v. Dudley, 10 Mass. R. 403 ; and also cited *Dana*v. *Newhall,*10 Mass. R. 498.

The opinion of the Court was afterward drawn up by

Parker C. J.

That the mere cancellation of the deed, under which one holds title to real estate, does not divest the title or revest it in the grantor, seems to be abundantly settled by the cases cited on the argument, and more particularly by two cases to which we have since been referred by the petitioner’s counsel, namely, 4 Connect. R. 550, and 5 Connect. R. 262.1

But we think the respondent’s seisin and title are maintained by the facts proved, consistently with this doctrine. By Reuben Blanchard’s deed to Ebenezer, not recorded, the title became vested in Ebenezer as against the grantor and his heirs, but was so far left in Reuben Blanchard that a conveyance from him to another person, ignorant of the former deed, would pass the estate ; and so also a creditor of Reuben might have acquired a title by a levy upon the land as his.

There seems to be no reason why the respondent, who had acquired the property in one moiety under the levy in favor of Stetson, should not become the second purchaser of Reuben, paying a valuable consideration and there being no fraud. The knowledge of the respondent of the former deed cannot be important, as there was no intent of defrauding Ebenezer Blanchard, who, on the contrary, received the consideration, and consented to this mode of executing his bargain. Nor were any creditors of Ebenezer Blanchard defrauded, for he obtained an equivalent for his land, and thereby became enabled *pro tanto*to pay his debts. Had he made his deed to the respondent at the time, there could have been no question of the validity of his conveyance. The whole transaction then amounts only to *110this ; that Reuben Blanchard, who had a legal right to convey, his former deed to his brother not being recorded, did in fact convey to the respondent, who may be considered a subsequent purchaser for a valuable consideration, without fraud.

The case of *Marshall*v. *Fisk*was rightly decided, the object of cancelling the deed and obtaining a new one from the grantee being to defeat an attachment by a creditor of the first grantee ; which was decidedly fraudulent.

The present case is supported by the principles laid down in the case of *Commonwealth*v. Dudley, 10 Mass. R. 403, [Rand’s ed. 414, note a.]

1

 See *Farrar*v. *Farrar,*4 N. Hamp. R. 191; *Morse*v. *Child,*6 N. Hamp. R 521 ; *Tomson*v. *Ward,*1 N. Hamp. R 9; *Corliss*v. *Corliss,*8 Vermont R. 373; *Wiley*v. *Christ,*4 Watts, 199.