Harrington & Kittredge vs. Josiah Gage et al., 6 Vt. 532

The opinion of the court was delivered by Collamer, J. — In the case Administrator of John Martin vs. Edward Martin, (1 Vt. Rep. 91,) it was decided, that the administrator being the personal representative of the deceased, can maintain no suit but such as the deceased might have done, and therefore could maintain no action for the recovery of land which the deceased in his life time had conveyed to defraud his creditors.

After that decision the act of 1831 was passed which provides, in substance, in the first section, that in such case, if it be necessary for the payment of debts, the administrator may, under the direction of the probate court, commence and sustain ejectment for land so conveyed. In the second

section it is provided, if there be not other sufficient-assetts for the payment of debts, the probate court may license and authorize the executor or administrator to sell so much of land so conveyed as is necessary for the payment of debts, and declares a sale and conveyance by such executor or administrator made agreeably to the provisions of the general probate law, “ shall be good and valid as against such fraudulent conveyance, and shall vest in the purchaser the same title the testator or intestate would have had in case he bad not conveyed.” It is by proceedings and sale under this second

section the plaintiffs claim to recover. It appears the plaintiffs’ deed was not recorded until after this action was ccmmenepd; are they on that account precluded from recovery ? Our statute of conveyances, (p. 167, sec. 5,) in substance provides that a deed signed, sealed, witnessed by two witnesses, acknowledged and .recorded, shall be valid to pass the land, as against all persons, without any further ceremony in law ; but good only as against the grantor and his heirs unless acknowledged and recorded.

The effect of'this then is, that an acknowledged and recorded deed is legal testimony and cannot be rejected by the eourt. But the question is, when does the title pass ? Most undoubtedly on the delivery of the deed ? Under our statute the deed, not livery of seizin, constitutes the conveyance and like all other deeds, takes effect on delivery. It '-is then the title passes to the grantee; for the statute expressly provides that it shall be effectual against the grantor without record; therefore he is no longer owner.

The title having thus passed to the grantee will be holden by him against all persons, subject only to be avoided by a subsequent bona fide purchaser or attaching creditor, without notice. This view of the subject is fully sustained, both in this and the neighboring states, where similar statutes exist, and is viewed by this court as consistent with the analogy of legal principles. In this case, by the statute of 1831, the administrator had the right of recovery in his own name, or the right to convey on license from the court. He did convey.

His deed duly executed was delivered, that passed the title to the plaintiffs and by the terms of the act of 1831, was “ good and valid as against such fraudulent conveyance” of the defendants. The defendants were not subsequent bona fide purchasers. This question has undergone so full and satisfactory discussion by courts and jurists as to render it inexcusable that further time should be devoted to it, and though differing somewhat in their reasoning, they fully agree in the result. In addition to the authorities cited by the plaintiffs’ counsel, the case of French vs. Gray (2 Conn.

Rep. 92,) gives to this question a very full and able investigation. It is insisted that this land was included in the inventory of Tyler’s estate and was assigned to his widow. The probate court have no power to make assignment of real estate to the widow; and besides, Tyler did not die seized of this land, and his heirs and widow could have no claim to the same, as his conveyance to Gage was effectual as to every one but creditors.

The statute of 1831 is in addition to the act “constituting probate courts,” &c. and provides that the sale by the administrator shall be agreeable to the provisions of the act to which it is in addition. By the general act it is provided that the probate court may license the administrator to sell so much real estate as is necessary for the payment of the debts, after the personal fund is first applied; but before granting such license, the heirs or devisees must be first notified.

It is now insisted for the defendants in this case, that inasmuch as the heirs of Tyler were not first notified, the sale by the administrator was unauthorized and the plaintiffs cannot recover. The object of provision in the general act is therein stated — that is, that the heirs or devisees may give bond for the payment of the debts and hold the land. In this case it is obvious, the heirs of Tyler could not hold the land, had they paid the debts. His conveyance to Gage was good against Tyler and his heirs. It was therefore useless and unnecessary to notify the heirs.

The general law further provides (p. 351) that every “ matter or thing had or done in any probate court, affecting the title of real estate, or a copy thereof certified by the register of such court, shall be recorded in the town clerk’s office in the town where such real estate is situate.” This is in accordance with our registry system and is explicit and peremptory. The recording of the deed is only in compliance with the statute of conveyances, and does not meet this law, requiring the proceedings of the court, affecting the title to this real estate, to be recorded in the town clerk’s office.

Though the probate records are legal evidence, and although the statute does not in terms declare the consequence of neglect, yet to hold this statute as merely declaratory, would practically wholly frustrate its design. So much of the proceedings of the court as affected this title, that is, the application, the order, license and return of sale, must first be recorded in the town clerk’s office, in obedience to this, statute, to entitle the plaintiff to recover. Therefore, Judgment reversed.