¶1I cannot concur in the doctrine that a recorded deed is not prima facie evidence, as against an unrecorded one, of every thing necessary to give it validity. Any other doctrine would render the registry laws of very little value. They were adopted and received their meaning before parties, or *424any interested persons, were admissible as witnesses, and it is not in tbe ordinary course of business that parties dealing in lands are able, usually, to prove the payment of consideration by witnesses. If any fraud was designed il would not be possible for the subscribing witnesses to know whether payments were genuine or fictitious; and it is so much out' of the ordinary course to call their attention to payments, that when it is done it often' of itself raises suspicions of dishonesty. Moreover, witnesses may die or be inaccessible, and the law provides no way of preserving their testimony until some conflict arises or is anticipated. One great object of acknowledgement and registry is to dispense with proof of handwriting and delivery. Eeeeipts, outside of deeds, would be no better evidence under this ruling than receipts in them. And in case of the death of the parties, their heirs could seldom have the means of getting at the facts. The law has provided ample means for the protection of titles by registration; and if a party fails to protect himself, common justice requires that he should take the consequences. The law can never impute fraud without proof to a party who has complied with its provisions, in favor of one who has not. Arguments from extreme cases amount to nothing. If a second deed is executed so speedily as to get first on record, in spite of ordinary diligence, the defrauded party, by speedy resort to the courts, can seldom fail of redress. It is the delay that renders proof difficult, and he should suffer from it who is responsible for it.
¶2The objection, that the recitals in the deed are res inter alios, has no force. The deed of the claimant asserted to be the prior in date is also res inter alios as to the second grantee, and yet a recorded copy is prima facie evidence that it was delivered at the time it purports to have been acknowledged, and is genuine, when in fact it may never have been delivered, may have been acknowledged by a fic*425titious party, or may be forgery throughout. The law admits it on the assumption that every presumption is made in favor of fairness. Such presumptions are inadmissible if one deed is not to be as much favored as another.
¶3There is no legitimate foundation for the idea that courts of equity required proof in his own favor from a second grantee, whose deed is first recorded, any more than courts of law. It is only in modern times, and after much hesitation, that these questions have been allowed to be tried -in actions of ejectment at all. — Jackson v. Burgott, 10 J. R., 457. In England the first recorded deed is not allowed, on any pretext, to be assailed at law. The presumptions are conclusive in its favor. — Doe v. Allsop, 5 B. & Ald., 142. And our practice, allowing the case to be tried at law, is universally recognized as a mere transfer of jurisdiction, which does not put the party in any different position than in equity. I agree fully that the rules of evidence should be the same. But it is not a correct view of the subject to hold that the doctrines which have never been departed from in New York since Jackson v. M’Chesney, 7 Cow., 360, are peculiar to courts of law. Judge Sutherland’s remarks in that case have, I think, been misunderstood, or else the cases he cites do not bear him out. He was correct in saying there was no analogy between those cases, where in equity a plea of a bona fide purchase is set up, and these actions of ejectment. That plea was never called for or appropriate, except in cases where a complainant set up some equitable title against which, taking the allegations of the bill to be true, a defendant had no equitable defense. When the defendant had a legal title he could hold it until a complainant made out a better equity affirmatively by his bill, for where equities are equal the law must prevail, and a complainant, showing a legal title in defendant, was compelled to assume the burden of overthrowing it. The *426doctrine is very well summed up inthe conclusion of the American note to Bassett v. Nosworthy, 2 Lead. Ca. in Eq., 88 (pt. 1), where the distinction is explained between those cases where a complainant seeks to get rid of a legal priority in a defendant, and those where the defendant has a mere equity. The leading case of Le Neve v. Le Neve, Ambler, 436, was the first in which it was held that a priority of record could be assailed in any court, and the doctrine has ever since been maintained that it may be done, but only by the most Convincing proof of fraud, by notice or by Want of consideration which raises a constructive fraud. Fraud is the only ground of interference, and it cannot be presumed. The doctrine which assumes this, without proof, is at war with all the recognized legal presumptions, and I cannot bitt regard it as dangerous and unreasonable. The decisions in equity have certainly never tolerated stich a doctrine. — Bush v. Golden, 17 Conn., 594; Glenn v. Grover, 3 Md., 212 ; Frazer v. Western, 1 Barb. Ch. R., 220; Wyatt v. Barwell, 19 Ves. R., 435; Gresley’s Eq. Ev., 368. If the burden of proof was on the registered owner, I admit the receipt in a deed would be very trifling proof, — although even then it is admissible. — Clapp v. Tirrell, 20 Pide., 247, and above cases. But no such burden is on him. The case of Wood v. Chapin, 13 N. Y,, 509, takes the same ground assumed earlier.
¶4As the case of Godfroy v. Disbrow, Walk. Ch., 260, laid down this doctrine in equity nearly thirty years ago, and it has never, so far as I have heard, been disputed before; and as the only cases which dispute the doctrine assume that they do so to introduce uniformity between law and equity, by making the equitable maxim apply, I am unable to admit the propriety of the rulings. I think they are very far from equity and from equitable precedents. We have ourselves held, in Wurcherer v. Hewett, 10 Mich. R., 453, that *427a complainant in foreclosure cannot assail a deed dated after but recorded before Ms mortgage, under tbe general charge that the defendant is a “subsequent purchaser,” but must in his bill state the facts going to destroy the record priority. That case cannot be maintained if the burden of proof is on the owner of récord. I have no recollection of any ease in this state in which the deed has not been received as ptivia facie evidence of consideration, and I feel very sure that the rule in Godfrey v. Disbrow has never been departed from in practice to any considerable extent, if at all. We have borrowed so much of our statutory and equitable system from New York, that that fact alone should prevent us from seeking light from unfamiliar systems, or changing rules which certainly have worked no mischief even if they were less necessary to the safety of record titles than I conceive this rule to be.
¶5Upon the other points I concur with my brother Ohristiancy.