26 W. Va. 807 | W. Va. | 1885
Six errors in these proceedings have been assigned by the appellant. The first and second raise the question, whether the plaintiff’s deed of trust dated August 2, 1875, was to be held as a recorded deed; the third and fourth, wh e t r the
The appellant’s counsel has furnished an ingenious argument in support of this novel proposition, drawn principally ■ from a critical examination of the phraseology of' ch. 78 of the Code, as amended by ch. 67 of the Acts of 1875. The second section thereof authorizes the clerk of the county court of any county wherein any deed, &c., is to be, or may be recorded, to admit the same to record in his office, as to any person whose name is signed thereto'when it shall have’been acknowledged by him, or proved by two witnesses as to him, befoi’e such clerk of the county court.
By the third, fourth and fifth sections of the Code so amended such deed may also be admitted to record upon a certificate of such acknowledgment before a justice, notai’y public, &c., written on or annexed to the same, and the deed of a married woman, upon the certificate of her privy examination and acknowledgment,’ or annexed to such deed, and the counsel concludes, that because the second section authorizes the clerk to take the acknowledgment of deeds, or to receive proof of the execution thereof, does not in terms
While these provisions of the statute have substantially .been iu force in Virginia for more than a hundred years, the counsel has not been able .to present a single case wherein his views have been sustained, or where such a construction has ever been contended for.
“The exercise of the probate jurisdiction in regard to deeds consists of two parts, one of which is the taking officially the proof or acknowledgment of the instrument; and the other is its recordation, or what is, the same thing in effect, the receiving it officially for that purpose, and the two together .when duly performed by the proper authorities constitutes'a complete act of registration.” Carper v. McDowell, 5 Grat. 233. These two parts, constituting the complete act of registration must both be performed, and the accidental fact that they may some times be performed by the same officer, will not authorize him to dispense with the performance of the first, and substitute the last, as conclusive evidence, that the writinghas been acknowledged, or the execution thereof proved before him. If the construction contended forbe sound, then every deed, however defective or imperfect the certificate of acknowledgment may be, whether the party making such certificate had authority to make it or not, would, as soon as admitted to record, of necessity become a recorded writing, for non constat, but that when the same was delivered to the clerk, it was acknowledged or proved before hi,m.
By sec. 5, of ch. 74 of the Code it is declared that every * * * * * . * deed of trust or mortgage conveying real estate or goods and chattels shall he void as to creditors, and purchasers for valuable consideration without notice,until and except from the time that it is duly admitted to record in the county wherein the property embraced in such * * * * * * * deed may be. The deed to Cox, not having been duly recorded, is therefore void as to subsequent purchasers without notice, of the 175 acres of land thereby conveyed to him in trust to secure the said debt of $4,600.00 ; but the same is nevertheless valid and binding as between
If such subsequent purchaser at the time he obtained his conveyance or deed of trust, had notice of the existence of the prior unrecorded deed he will be bound by such unrecorded deed in the same manner and to the same extent as if the same had been duly recorded. If a deed has been duly recorded in the proper county it is notice, to all subsequent purchasers of the property thereby conveyed.
Applying these rules of law to the facts in the case under consideration it becomes easy of solution.
The plaintiff Cox having failed to record his deed of trust, the same is void as to the trustee Peck and all the creditors secured thereby excepting Susan Edgington, George Edging-ton and Francis M. Wayt, who at the time it was executed, had notice of the prior unrecorded deed of Cox and they are therefore bound thereby, to the extent of his trust debt of $4,600.00. with interest thereon from August 2, 1875, still remains unpaid, but not to any greater extent. As by the terms of the deed of trust to Peck, Susan Edgington vras to be first paid in full, and then all the other creditors of James Wayt mentioned therein including George Edgington and E. M. Wayt, were to be paid ratably. All of these excepting only Susan Edgington, George Edgington and Francis M.
The third error assigned by the appellant was in over-ruling his exceptions to the report of the commissioner. They were based upon two grounds: Hirst, that certain specified debts, all of which were included in Peck’s deed of trust, had been improperly allowed priority over the
The decree of the circuit court of Ohio county rendered on the 2nd day of June, 1883, as well as its decree rendered on the 10th day of December, 1883, as herein amended, must be affirmed with $30.00 damages and costs to the appellees, against the appellant as executor of Jane Brown, and as executor of Ann Brown, deceased, to be paid out of the assets of his said testatrices in his hands to be administered.
Aeitrmed.