Avent v. Read

2 Stew. 488 | Ala. | 1830

By JUDGE COLLIER.

The material inquiry, is, whether the registration of a deed conveying lands, be necessary to give to it validity against the creditors of the vendor. The negative of this inquiry is attempted to be sustained, by a reference to the second member of the second section of the statute of frauds, ^a so much of which as it is important tomotice, is in these words: “ And moreover, if any conveyance be of goods and chattels, and be not on consideration deemed valuable in the law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved and recorded, or by deed in writing, acknowledged or proved. If the same deed include lands, also, in such manner as conveyances of lands are by law directed to be acknowledged or proved; or if it be of goods and chattels only, then acknowledged or proved by one or more witnesses in the Superior or County Court, wherein one of the parties lives; within twelve months after the execution thereof.” This provision of the act, it is conceived, can have no influence upon the question; it is expressly restricted to deeds tvhich are made without a valuable consideration; and in such cases only to those conveying goods and chattels, or goods and chattels and lands, and not to those which convey lands alone. Did this construction admit of a doubt, that doubt would be entirely removed by the third section of the same statute, which declares that it shall not extend to any estate in laiids, which shall be upon good consideration, bona-fide, lawfully conveyed.

The act of 1811, ^b only restrains the operation of deeds of land, for a failure to have them registered, against subsequent and bona fide purchasers, and mortgagee^ without notice, without saying any thing of creditors. In fact, in the multiplicity of legislation upon this subject, anterior to the date of the deed in question, registration by the vendee seems not to have been made necessary to give title as against the vendor’s creditors. We are therefore of opinion that the creditor derives no advantage from the omission of the vendee of his debtor to register such e deed. We may consider the defendant as standing in the situation of Gray, thejudgment creditor, or as a purchaser from the time he became such; and in either point of view the charge of- the Court was erroneous. It should have been left to the jury to determine from the proof offered, whether the defendant, at the time of his purchase, had notice of the existence of the deed. Their inquiry on this point was foreclosed by the instruction given. If the proof professed to be set out in the bill of exceptions, could be considered as all that was offered, we would be prepared to affirm the judgment below, because no consideration appears for the conveyance from the plaintiff to Gaston: but there is nothing in the record which enables us to infer that other evidence was not adduced, and the language employed in the charge of the Court authorizes a different conclusion.

We are accordingly of opinion, that thejudgment must-be reversed, and the cause remanded.

Judge White not sitting.

a Laws of Ala. 244.

b Laws of Ala. 245.