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law, and the decision was, that the excess did not fall within. the maxim, De minimis non curat lex. The case of Boyden v Moore was referred to with approbation.

In the case of Huntington v. Winchell, 8 Conn. 45 [20 Am. Dec. 84], the title depended upon the validity of levies made to satisfy two executions. The value of the estate exceeded the amount to be paid, in one, ten cents, and in the other, seventeen cents. The maxim was considered to be applicable to these sums, and the levies were held to be valid.

In the case of Spencer v. Champion, 9 Conn. 537, the value exceeded by fourteen cents the amount to be paid, and the levy was sustained.

In the case of Pickett v. Breckenridge, 22 Pick. 297 [33 Am. Dec. 745], the value of the estate exceeded by three dollars the amount to be paid, and it was decided to be invalid.

An amount which can not be paid in any legally current coin of the country must of course be disregarded.

A literal application of the maxim would authorize the court to disregard also in the estimate of value one of the least of the current coins.

Tenant defaulted.

OFFICER'S RETURN, WHERE RETURN IS REQUIRED BY LAW, is the only proper evidence of what has been done by him thereunder, and no omission therein of any fact may be supplied by other proof: Fairfield v. Paine, 41 Am. Dec. 357. And the return is conclusive on the parties as to the facts therein set forth as far as the particular action is concerned: Knowles v. Lord, 34 Id. 525; but see Jones v. Commercial Bank of Columbus, 35 Id. 419, where it was held that a return of process by a sheriff would not preclude the defendant from showing that he had no notice of the action.

SALE OF MORE THAN ENOUGH LAND TO SATISFY JUDGMENT is generally considered void, especially if part could easily have been sold for sufficient to satisfy the execution debt, and will generally be set aside in equity: Patterson v Carneal, 13 Am. Dec. 208; Reed v. Carter, 26 Id. 422; Berry v. Griffith, 18 Id. 309; Groff v. Jones, 22 Id. 545. In the latter case, however, it was said that the statutory provision that no more real estate should be sold than should appear to be necessary to satisfy an execution was directory only, and though not complied with, a sale to a bona fide purchaser would nevertheless be valid.. In Pickett v. Breckenridge, 33 Id. 745, an excess of three dollars in the appraised value of land, set off under an execution over the amount of the exe sution, was held to avoid the levy.

MCLAUGHLIN v. SHEPHERD.

[32 MAINE, 143.]

DEED, WITH BOND TO RECONVEY upon performance of certain conditions, is

a mortgage.

ACTUAL POSSESSION UNDER UNREGISTERED DEED IS NOTICE to subsequent purchasers of the prior conveyance.

SUBSEQUENT PURCHASE WITH NOTICE OF UNRECORDED BOND OR DEFEASANCE is not valid as against it.

ATTACHING CREDITOR IS CHARGEABLE WITH NOTICE in the same manner and with like effect as a subsequent purchaser.

MORTGAGEE'S INTEREST IN LAND IS NOT ATTACHABLE or subject to levy on execution.

ENTRY. The opinion states the facts.

J. Godfrey and J. and M. L. Appleton, for the plaintiff.
Cutting, for the defendant.

By Court, HOWARD, J. The tenant owned and occupied the demanded premises consisting of a house and lot in Bangor, and conveyed them by an absolute deed to Wellington, June 2, 1838. He took from Wellington a bond under seal, of the same date, and executed at the same time, to reconvey the premises within three years, upon the surrender of the notes, then given for the consideration of the conveyance, and upon a repayment of such sums and interest as might have been paid by the grantee. The deed was recorded June 30, 1838, but the bond was not recorded until November 20, 1843. Wellington did not enter into the possession of the premises, but the tenant and his family resided on and occupied them some time prior to and ever since June 18, 1838. A creditor of Wellington attached the premises in a suit on a demand accruing and due before 1838; obtained judgment and execution, and levied upon them January 12, 1847, and conveyed his title and interest to the demandant. Wellington did not pay any portion of his notes for the consideration, but the tenant, within the three years, requested of him a reconveyance, offering to give up the notes specified in the bond, and in compliance with its conditions. The deed and bond, being a part of the same transaction, constituted a mortgage between the parties, but whether it can be regarded as such against the attaching creditor is the question presented by the report. A subsequent purchaser of real estate, who had notice, at the time of his purchase, of a prior unregis tered deed, can not, upon the strength of his prior registry, defeat the unrecorded deed. The notice to him has all the effect

of a prior registry, and is alike effective, whether it be express or implied. This doctrine has been so fully discussed in English and American courts, and so frequently affirmed, that it may be considered as established law.

It has been held that possession by one, of an improved estate, under an unregistered deed, is notice to a subsequent purchaser, of the prior conveyance; and that such possession is sufficient to put the subsequent purchaser upon an inquiry into the title which he is about to purchase from a person who is not in possession. If he make the inquiry, the presumption of law is, that he ascertains the true state of the title; or if he neglect it, and purchases, there arises in either case the presumption of a fraudulent intention in effecting the purchase: Webster v. Maddox, 6 Greenl. 258; Matthews v. Demerritt, 22 Me. 312; Trowbridge's reading of the Province Law, of 9 Wm. III., c. 7; 3 Mass. 573; Farnsworth v. Childs, 4 Id. 638 [3 Am. Dec. 249]; Norcross v. Widgery, 2 Id. 508; Davis v. Blunt, 6 Id. 489 [4 Am. Dec. 168]; Prescott v. Heard, 10 Id. 60; McMechan v. Griffing, 3 Pick. 152 [15 Am. Dec. 198]; Curtis v. Mundy, 3 Met. 405, where it is held, under the revised statutes of Massachusetts, which provide that no unrecorded conveyance of real estate shall be valid and effectual except against the grantor, etc., "and persons having actual notice thereof," that it is not necessary, in order to render such conveyance valid against a subsequent purchaser, that he should have positive and certain knowledge of its existence; but that the notice would be sufficient if it be such as men usually act upon in the ordinary affairs of life: Pomroy v. Stevens, 11 Id. 244; Jackson v. Sharp, 9 Johns. 168; Jackson v. Burgott, 10 Johns. 471 [6 Am. Dec. 267]; Dey v. Dunham, 2 Johns. Ch. 190; Le Neve v. Le Neve, 3 Atk. 654; Taylor v. Stibbert, 2 Ves. 440; Hiern v. Mill, 13 Id. 120; 1 Story's Eq. Jur., sec. 397; 4 Kent's Com. 169–174.

The statute of 1821, chapter 36, section 3, provides, “that no title or estate in fee simple, etc., of any lands, etc., within this state, shall be defeated or encumbered by any bond or other deed, or instrument of defeasance, in the hands or possession of any person, but the original party to such bond, deed, or other instrument or his heirs, unless such bond, deed, or other instrument of defeasance, be recorded at large in the registry of deeds, in which the original deed referred to in the said bond, deed, or other instrument of defeasance shall have been recorded." The first section of this chapter provides for the recording of deeds, and it has been construed in conformity with

the doctrine and principles already stated; but the third section has not been so directly the subject of discussion, or of judicial interpretation. As the instrument of defeasance affects the title of the parties to the conveyance, there would seem to be the same necessity for recording it as for recording the deed, and for the like purpose of giving notice. Such, undoubtedly, was the object of the legislature in framing the law. By analogy, this section should receive a similar construction, in reference to unrecorded instruments of defeasance, with the first section of the statute, in respect to unregistered deeds. A subsequent purchaser, therefore, from the grantee, with knowledge, express or implied, of an unrecorded bond of defeasance, would not be valid against the mortgage. The subsequent purchaser would be chargeable with notice of the unregistered deed or instrument of defeasance, upon like evidence: Newhall v. Burt, 7 Pick. 159.

The case of Fuller v. Pratt, 10 Me. 197, has been cited, as advancing doctrine at variance with the views now indicated, on the subject of notice. But in that case it was determined that the instrument, taken by the grantor, did not constitue a defeasance; and although the chief justice remarked in his opinion, that, if it had been a defeasance, it could not have operated as such, against any person but the original party to it, while unrecorded, yet this remark was merely incidental to the point upon which the decision was made; and the effect of possession by the obligee was not then discussed by the court, and does not appear to have been there directly considered or decided.

An attaching creditor is chargeable with notice in the same manner, and with like effect, as a subsequent purchaser: Matthews v. Demerritt, 22 Me. 317. In this case, the evidence was sufficient to put the creditor upon the inquiry into the nature of the title of his debtor; and if the inquiry had been instituted, it can not be doubted that it must have resulted in his ascertaining the true state of the debtor's interest. The open, continued, and exclusive possession and occupation of the house and lot, by the tenant and his family, after his conveyance to Wellington, are facts from which notice might be inferred that he was in possession by right, and under the title which he actually had: McKecknie v. Hoskins, 23 Id. 233; Taylor v. Stibbert, 2 Ves. 440.

Wellington's interest was only that of a mortgagee, and it was not attachable, or subject to a levy of execution: Blanchard v. Colburn, 16 Mass. 345; Eaton v. Whiting, 3 Pick. 484; Smith

. People's Bank, 24 Me. 185. The objections to the sufficiency of the attachment becoming immaterial to the result are not considered.

Demandant nonsuit, according to the agreement of the parties.

THE PRINCIPAL CASE IS CITED to the point that a mortgagee's interest in land before foreclosure is not subject to attachment, in Thornton v. Wood, 42 Me. 284; and to the point that open, continued, and exclusive possession of a house and lot by one who had given a deed to the premises, and taken a bond to reconvey, were facts from which notice might be inferred that he was in possession by right and under the title which he actually had, in Purrington v. Pierce, 38 Id. 449.

DEED ABSOLUTE ON ITS FACE ACCOMPANIED BY DEFEASANCE is a mortgage: Manufacturers' and Mechanics Bank v. Bank of Pennsylvania, 42 Am. Dec. 240, and note 246, where prior cases in this series to this point are collected. POSSESSION AS NOTICE OF POSSESSOR'S TITLE: See McConnell v. Reed, 38 Am. Dec. 124, and note 131, where the prior cases in this series to this point are collected: Hood v. Fahnestock, 44 Id. 147; Boyce v. McCulloch, 39 Id. 35.

MORTGAGEE BEFORE FORECLOSURE HAS NO INTEREST IN LAND which can be sold on execution: Morris v. Mowatt, 22 Am. Dec. 661.

KNOWLTON v. SANFORD.

[32 MAINE, 148.]

ANCHORING VESSEL IN REGULAR PATH OF RIVER STEAMERS can only be justified by necessity, and such vessel must remain no longer than the necessity exists.

MASTER'S DUTY UPON ANCHORING IN PATH OF RIVER STEAMERS is to

exercise a reasonable degree of care and skill and have due regard for the rights of others, and whether he does is a question for the jury. DEGREE OF NECESSITY WHICH WILL JUSTIFY ANCHORING IN PATH OF RIVER CRAFT is not such as renders it impossible to anchor elsewhere. It is sufficient if prudent and skillful navigators would deem it hazardous to do so.

STEAMER OR VESSEL UNDER SAIL MUST AVOID ONE AT ANCHOR.

IN COLLISIONS OF VESSELS, ONE IN FAULT IS RESPONSIBLE if the other does not contribute to the injury.

IN COLLISION BY ACCIDENT, if neither be in fault, or both be in fault, the misfortune must be borne by those on whom it falls at common law, but in admiralty the loss would be apportioned or divided equally between them.

CASE. The opinion states the facts.

J. Appleton, for the defendants.

Kelley, for the plaintiffs.

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