Joseph Haynes vs. Obadiah Jones, 5 Met. 292

Dewey, J. The demandant, a judgment creditor of Char.es Mclntire, has levied upon the demanded premises, claiming to hold them, upon the ground that there was an attachable legal interest in Mclntire. For reasons which do not appear, and which are in no wise material to the present question, the tenant Jones, instead of taking a conveyance directly from E. H Derby, the owner of the land, received his title through Mclntire. Derby conveyed by deed to Mclntire, and Mclntire, really a mere conduit, conveyed by deed to Jones. Both these latter deeds were unrecorded at the time of the demandant’s attachment.

The demandant insists that the conveyance from Mclntire to Jones, although prior to his attachment, is unavailing to the tenant, inasmuch as our statutes give no effect to an unrecorded deed, except as between the grantor and his heirs, and the grantee, or as respects persons having notice of such conveyance. To this it is answered, that Mclntire had only an instantaneous seizin, and therefore no attachable interest. If this was well established by the facts, it might have been a good answer.

But we apprehend that, upon the facts stated, it would be extending the principle too far, to apply it to the present case. The stronger ground for the tenant is this ; that the effect of all the conveyances was such as to leave no attachable interest in Mclntire. The legal estate, as evidenced by the registry of deeds, was in Derby, at the time of the attachment; and an attachment by a creditor of Derby might have been sustained, upon the ground taken by the demandant, viz., that Derby having record title, his deed to Mclntire, not being recorded, would not defeat the attachment.

I do not see but this would be unanswerable. But Mclntire never had any possession, never had any title by record, and was a mere conduit to pass the title to others. It is true that a deed was executed, conveying the premises to him, and it is also true that he, on the next day, transferred to Jones the same estate. Whatever title Mclntire acquired, he had parted with by the same form of conveyance, and which was, in all respects, as effectual to transmit his title to Jones, as was Derby’s deed to him.

It seems to us that the effect of this was to divest Mclntire of any at tachable interest; that having had no possession of the land, nor any t laim of title under any recorded deed, it was sufficient to defeat the demandant’s attachment, that he had previously transferred to the tenant whatever title he had, although by an unrecorded deed. Demandant nonsuit.