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158 Mass. 385

Jones v. Mitchell

Massachusetts Supreme Judicial Court

Decided March 3, 1893

Massachusetts Supreme Judicial Court · decided 1893-03-03

<p>Conveyance of Real Estate — Attachable Interest.</p> <p>A. on September 1, 1890, conveyed real estate to B. who gave A. a writing agreeing to reconvey it when a complaint against A. was disposed of, B. having become surety on a bail bond issuing in the case. The complaint was disposed of on October 3, 1890. On January 22, 1891, at ten o’clock and fifty minutes in the forenoon, B. recorded the deed to him from A. in the registry of deeds, but the writing given by B. to A. was never recorded. On the same day at ten o’clock and forty minutes in the forenoon, C., a deputy sheriff, made an attachment in favor of D. of all B.’s real estate in the county ; and at twelve o’clock and twenty-seven minutes in the afternoon deposited in the registry a copy of the writ, with so much of his return as related to the attachment. On March 19, 1891, B. reconveyed to A., and on the same day A. executed a mortgage of the real estate to E. Subsequently D. recovered judgment against B., and C. made a levy on the land by virtue of an execution. Held, on a bill in equity by A. and E. against C. and D., to enjoin them from disposing of the property, that B., at the time when the attachment was made, had no record title to the land and no attachable interest therein.</p>

Cited by 2 later decisions — most recently August 2011

2 state decisions

Relies on Cowley v. McLaughlin · Clark v. Watson

Good law ✅— No negative treatment on recordhow we know

Decided 1893-03-03

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Lathrop, J.

¶1The attachment in this case was made on January 22, 1891, at forty minutes after ten o’clock in the forenoon, and on the afternoon of the same day, at twenty-seven minutes after twelve o’clock, a copy of the writ was deposited in the registry of deeds. Between these times the deed from Davis to Edwards was recorded. The defendants, who claim under the title derived from the attachment, contend that the attachment did not take effect until the copy of the writ was deposited in the registry of deeds. But as the copy of the writ was deposited within three days, it took effect by the express words of the statute, from the time it was made. Pub. Sts. c. 161, § 65. The last clause of this section relates only to the case where there is a sale to a purchaser, in good faith, after the attachment and before the deposit in the registry of deeds; and it has no application to the case at bar.

¶2At the time the attachment was made, Edwards had no record title to the land in question. It is true that he had an unrecorded deed, but in fact he held this only as security, and he had given to his grantor an agreement to reconvey the land when a criminal complaint against her was disposed of. This complaint had been disposed of long before the attachment. Taking the two instruments together, Edwards had no attachable interest in the land. If the defendants are permitted to avail themselves of one unrecorded instrument, there is no reason why the plaintiff Jones should not have the benefit of the other. The case is governed *388on this point by Cowley v. McLaughlin, 141 Mass. 181, 182, where it was said by Mr. Justice Holmes: “ But when the registry shows no title, and the creditor does not know that his debtor has one, which we must assume to have been the fact here, if it be in any way material, we think that he must take what accident throws into his net as he finds it; and that he cannot claim the benefit of a fiction to get more than his debtor really owned.”

¶3In Clark v. Watson, 141 Mass. 248, on which the defendants rely, the deed to the debtor was recorded before the attachment.

¶4 Decree for the plaintiffs.

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