¶1The statute makes void all deeds till filed for record, except as against creditors and subsequent purchasers with notice; unless, therefore, Wiley, at the time he took the mortgage from Levi A. Rogers, had notice of the prior unrecorded deed to Daniel Rogers, the decree of foreclosure must stand.
¶2To take a case out of the registry acts, so as to defeat the title of a subsequent purchaser who first places his deed upon record, on the ground that he had actual notice of a prior unrecorded deed of the same premises, the proof of such notice should be clear and positive, so as to leave no reasonable doubt that the taking of the second conveyance was, under the circumstances, an act of bad faith towards the first purchaser.
¶3The evidence in this case wholly fails to show that Wiley had such notice.
¶4Hancock, the principal witness relied on to prove the noti.ee, states in substance, that in a conversation with Wiley some three weeks previous to the date of the mortgage, he informed him that Levi A. Rogers had mortgaged the land in controversy to the township; that he subsequently sold it to one Kingston, who executed his own mortgage to the township and satisfied the one executed by the said Levi; that Kingston afterwards sold the land to Daniel Rogers and then found that he had never received a deed from Levi; that Daniel directed him to get a deed from Levi directly to him, Daniel; that Levi afterwards bought the land back froth Daniel; and that the deed from Levi to Daniel was to be burned or destroyed when Levi made a mortgage to the township.
¶5Another witness, who was present at the same conversation, corroborates Hancock as to what was said about the various sales, but he heard nothing said about any deeds between any of the parties. This evidence, so far from showing that the land belonged to Daniel Rogers, proves that it really belonged to Levi A. Rogers.
¶6The same source from which Wiley learned of the sale to .Daniel, also informed him of the resale back to Levi, in whom was the legal title as shown by the records.
¶7If Wiley heard and understood all that the witness, Hancock, says he told him, which is very uncertain, he was not bound to go to Daniel Rogers and inquire whether Levi had ever executed to him a deed in accordance with a direction which he had at one time given, when he learned from the same person who informed him of the direction that if complied with, the deed was to be cancelled. One witness testifies, that in a conversation with Wiley in the fall after the date of the mortgage, Wiley gave him to understand, that in the absence of the deed to get the certificate of acknowledgment fixed, he had got the mortgage recorded; but when interrogated, he says expressly that he did not know whether Wiley meant that when he got his mortgage recorded he knew of the deed, or whether he learned it afterwards. The other evidence in the record relied on to prove notice, is still more loose and unsatisfactory than that which has been referred to, and it falls far short of convincing the mind that Wiley took his mortgage with actual knowledge of a prior existing deed to Daniel Rogers.
¶8Decree affirmed.