34 W. Va. 115 | W. Va. | 1890
This suit in equity was brought in the Circuit Court of Jefferson county by George "W. and Fannie 13. Atkinson for themselves and. all other lien-creditors of Robert M. Miller against said Miller, to enforce the liens of a judgment in favor of George "W. Atkinson and a judgment in favor of Fannie B. Atkinson against Miller, both rendered November 30,1888, by a sale of his real estate for the payment of said judgment and other liens mentioned in the bill. Upon a reference to a commissioner to convene all lienors and ascertain their liens, a report was made ascertaining certain liens upon Miller’s land, among them said Atkinson judgments, and denying any placeas alien to a debt of James Logie claimed? by him before said commissioner under a writing purporting to be a deed of trust executed by Miller to Robert M. Duke, trustee, to secure said Logie’s debt, dated September 20, 1867, and recorded October 16,1867, because of the absence of a seal to said writing. Logie excepted to the report, because it failed to report said debt as a first lien on the real estate specified in said deed of trust. The court sustained Logie’s exception, and in its decree made Logie’s debt a first lien, and thus gave it priority over the Atkinson judgments as to said land embraced in said
This case presents the question whether a writing purporting tó be a deed of trust, formal in all respects save the want of a seal, creates a lien on the land mentioned in it. Suppose a'deed for a fee were executed without'a seal. It would not pass the legal estate ; for our statute provides that no estate in land, greater than a term of five years, shall pass except by deed or will. Code 188Y, c. 71, s. 1. But a court of equity would not allow tlie intent of the parties, as manifested by the writing, to be wholly defeated by the omission of a seal, but would treat the instrument ás a contract or agreement to convey, or a memorandum of such an agreement; and properly so, for he who executes an instrument using proper words of actual present conveyance, but which, for want of a seal, fails to do what the words were meant toi do, as fully discloses a willingness and intent to convey, as if he executed an executory contract covenanting'to convey in future. Accordingly,'defective deeds signed by. the parties, purporting to convey'the legal title, but because of some defect not doing so, are treated in equity 'as agreements to convey; and specific execution 'of them will be decreed by providing for the execution of a formal and effectual conveyance. 1 Hill. Vend. 118; Opinion in White v. Denman, in extract given below. Opinions in Goodson v. Beacham 24 Ga. 154; McWilliams v. Nisley, 2 Serg. & R. 515; Chew v. Barnett, 11 Serg. & B. 391.
If such is the law as to a defective deed purporting to convey in fee, wliy is not an instrument purporting to be a deed conveying in trust on like principles to be deemed a contract for a conveyance — that is for a conveyance in trust for a debt ? The oiily difference is that the one is a conveyance absolutely, the other in trust to secure a debt. I suppose an instrument conveying tb A'., to be held in trust for B., could, if defective ' and not operating to convey the legal estate, be treated as ' evidence of an agreement to convey, which would be 'specifically executed. The only difference between the instruments is that one is in trust for the purpose of paying
An executory agreement in writing, stipulating for the execution in future of a mortgage or deed of trust, is of common occurrance, and is valid, and will be specifically enforced in equity, or what is the same thing, treated as an equitable mortgage. Ott v. King, 8 Gratt. 224; Alexander v. Newton, 2 Gratt. 266; 1 Jones, Mortg. § 168. And I think it may and must be recorded to affect creditors and purchasers for value without notice. The conclusion we have reached, that a deed of trust having no seal may be treated as a contract for the conveyance of real estate, and recorded as such under our statute and thus create a lien as to creditors and purchasers, is in conflict with the case of Pratt v. Clemens, 4 W. Va. 443, which holds that a deed of trust unsealed does not create a lien on land, and can not be recorded. In that case it is said “While it might be technically a contract for the conveyance of the land, it is in substance nothing more than a contract for a lien on land to be created by a deed of trust.” This admits that it is a contract for a conveyance
In my opinion, the statute allows the recordation of any writing evidencing any contract between parties respecting real estate, so operating as that it may affect subsequent purchasers and creditors. This construction and application of the statute better accomplishes the purpose aimed at by it, requiring the registry of all instruments, and protecting all parties. It was designed for their benefit, and should receive such a construction as to sub-serve that design. This construction sustains liens which the parties intended to create. As we apply the statute, it better attains the ends of justice than that given to it in the case of Pratt v. Clemens, for it upholds, instead of defeating, a lien under the- instrument, according to the unquestionable intention of the parties, and thus carries out that intention, instead of nullifying it. Its application in this case comes within the letter, and within the spirit, of the statute.
The case of Pratt v. Clemens, was applied as law in the
Let us now advert to another view of. the effect of said deed of trust. Suppose that it is not a recordable paper under the statute; then the statute does, not avoid it for want of recordation, for, of course, the statute avoids only such writings as it requires to be recorded. Therefore, it is to be governed by the:law, regardless of the statute. What character does it assume in this view ? Certainly that of an equitable mortgage, under very many authoi’ities. “Wherever it appears, by writing signed, by the party to be
“A mortgage or trust-deed which can not be enforced by a sale under the power or by judgment of foreclosure, on account of some informality requisite to a complete mortgage or deed of trust, will nevertheless be regarded as an equitable mortgage, and the lien will be enforced by special proceedings in equity. The attempt to create a security in legal form, upon specific property, having failed; effect is given to the intention of the parties, and the lien enforced as an equitable mortgage.” 1 Jones, Mortg. § 168.
In Wayt v. Carwithen, 21 W. Va. 516, it is held, that any deed or written contract used by the parties for pledging real property as security for a debt, which is informal 'and insufficient as a common-law mortgage, but which shows, that the parties intended that it should operate as -a lien or cliai'ge on the property, will be an equitable mortgage and enforced in equity. See also, Knott v. Manufacturing Co., 30 W. Va. 790 (5 S. E. Rep. 266); Fidelity etc. Co. v. Shenandoah R. Co., 33 W. Va. 761 (11 S. E. Rep. 58.)
This instrument being an. equitable mortgage, and (let us suppose) not a recordable writing, and therefore not declared void as to creditors and purchasers by it, when tested by the general law regardless of the statute, what would be its status f It would be valid against creditors,, though perhaps void as to subsequent purchasers for valuable consideration without notice.
In the opinion in White v. Denman, 1 Ohio St. 112, it is said: “It is a principal of familiar application in equity jurisprudence that a specific equitable interest in real estate, whether it be crelited by an executory agreement for the
Judge Green, in Snyder v. Martin, 17 W. Va. 299, shows, by many cases, that judgment-liens yield to prior equitable mortgages and other trusts and equitable estates created by written contract, and on page SOI, says: “It may therefore be laid down as a universal rule, established by many cases, that a judgment-lien is always subject to every possible description of equity held by a third .party against the debtor at the time the judgment-lien attached, and that it is immaterial whether the rights of such third party consist of an equitable estate or interest in the judgment-debtor’s land, an equitable lien on his land, or a mere equity which attaches to or affects his land. Nor is it at all material whether the judgment-debtor has or has not, when he contracted his debt, or obtained his judgment, or docketed the same, notice of such equitable estate, equitable lien, or mere equity. If they be prior in time to the judgment, they will always be preferred to the judgment-lien. The authorities we have cited abundantly sustain this conclusion, and there is no exception to the universal rule, except where such exception is made by statute law.”
It follows, therefore, that this defective deed of trust as an equitable mortgage being prior in time to the judgments of the appellants, takes precedence over them, though it might, in this latter view, be subordinate to deeds of trust. And so, whether we view this deed of trust as a contract for a conveyance recordable under the statute, which we hold it to be, or as an equitable mortgage recordable under the statute, or .as an equitable mortgage not recordable under the statute, it is to be preferred to the judgments of the appellants, and on both grounds their appeal is not well taken. Therefore, we affirm the decree.
AEEIRMED.