1 Va. Dec. 390 | Va. | 1881
delivered the opinion of the court.
The controversy in this case is between adverse claimants, under two several deeds of the same grantor conveying the same property—the one a deed of bargain and sale dated September 13,1855, and the other a deed of trust bearing date-January 17, 1859, given to secure a debt of the grantor, with power to the trustee to sell the property in default of payment of the debt. It is admitted that the debt is just and has never been paid. According to repeated decisions of this court (see Williams and others v. Lord & Robinson and others, decided during the present term, and cases there cited) the trustee and the secured creditor are purchasers for valuable consideration within the meaning of the statute (Code of 1873, ch. 114, § 5), and their title is not affected by the prior deed unless they had notice of it at the date of their purchase. It is not pretended that they or either of them had actual notice, but the contention is that they had constructive notice by registration—not by the actual recordation of the deed, for it was not recorded in fact until some years after the trust deed was executed—but by the admission of the deed to record by the clerk of the registry court, which took place, as alleged, anterior to the execution of the deed of trust. If it was duly admitted to record, notice in contemplation of law was thereby given as effectually as if it had been then spread on the deed book (Beverly v. Ellis & Allan, 1 Rand. 102), and the certificate of the clerk, written on the deed, that it has been so admitted to record, would be evidence of the fact. Harkins v. Forsyth, 11 Leigh 294; Carper v. McDowell, 5 Gratt. 212; 2 Minor’s Inst. 870. But in the case before us Robert Pritchett, the grantor in the deed, was the clerk who made the certificate and admitted the deed to record, if it was admitted at all. The endorsement on the deed is in the words and figures following:
*494 “ 1855, September, 13th.
“ Filed and acknowledged in office by Robert Pritchett, a party thereto.”
There is no signature to this endorsement, but it is conceded to be in the handwriting of the clerk.
There is no other certificate and no other evidence of acknowledgment or of admission to record. Can it be said, upon this evidence, that the deed was duly admitted to record” within the meaning of the statute ?
The clerk of the registry court, in his office, may admit to record any deed or other writing (authorized to be recorded) as to any person whose name is signed thereto, when it has been acknowledged by such person or proved by two witnesses as to him before such clerk in his office; and he may also admit any such writing to record as to any person whose name is signed thereto, upon a certificate of such person’s acknowledgment before certain officers designated by the statute. Code of 1873, ch. 117, §§ 1, 2, 3.
But how can a party to a deed acknowledge it before himself ? The act to be done implies ex necessitate rei that there are at least two parties—one who makes the acknowledgment and another who receives and certifies it. The law contemplates no such anomaly as that of a party to a deed taking his own acknowledgment of it before himself in his official character. No adjudged case has been cited, if any such there be, in support of the remarkable proposition that a party to an instrument may acknowledge it before himself as an officer, and that such acknowledgment certified by him is sufficient under a statute authorizing recordation of instruments on certificate of acknowledgment before such officer; and if any such case could be found we do not hesitate to say that it would not control our judgment in the construction of the registration acts of this State.
The scope of the maxim is wide enough to take in the case we are dealing with. It is the duty of the clerk of the county and corporation courts to take and certify acknowledgments of deeds and other writings in his office, and to admit them to record.- These functions involve inquiry and determination, and partake of a judicial character. The admission to record is in law notice of the deed to the world. After it is “admitted to record” it is the duty of the clerk to “record” it in the deed-book (Code of 1873, ch. 117, § 8); and the admission to record is equivalent to actual recordation for the purpose of notice. Beverly v. Ellis & Allen, supra. For this purpose the admission to record is effectual, though the clerical act of spreading the instrument in extenso on the deed-book be never performed.
Under these cifcumstances, it would seem to be against the spirit of the rule referred to if the clerk were allowed to act officially where his private interest might conflict with his duty to third parties and the public.
There was no propriety in Pritchett’s taking and certifying his own acknowledgment, and there was no necessity .for it. He might have acknowledged the deed in the
It seems that the certificate of the admission to record of the deed of trust is similar to the certificate endorsed on the other deed. But that is an immaterial circumstance in the case. The trust deed is good between the parties, and,, if not duly admitted to record, is void only as to creditors and subsequent purchasers. . Code of 1873, ch. 114, § 5. The title under it, acquired bona fide and for valuable consideration, is good against a prior purchaser, though the deed was never recorded nor duly admitted to record.
In addition to the views which have been presented, we-deem it proper to say that the circumstances of this case tend strongly to show that it was never intended that the instrument in question should take immediate effect, if at all, as an absolute deed. It purports to be the deed of the grantor and his wife, and a certificate of her privy examination by Arthur Stephens, a notary public, bearing even date with the deed, is appended, but the deed is not signed by the wife, nor is the certificate signed by the notary.. The endorsement by the clerk does not state that the deed was admitted to record, or that it was acknowledged for that purpose, nor is it signed by the clerk. It does not appear that it was ever in the possession of the grantee. On the contrary, it is charged in the bill that it was kept by the grantor and was found among his papers after his. death; and the latter allegation is substantially admitted by the answer of Beazley and wife. The grantor lived seven years and more from the time the deed bears date,, and was clerk of the court, yet he never recorded the deed,.
These circumstances tend very forcibly to induce the belief that the instrument never took effect as a deed of conveyance, and was never considered by the grantor as admitted to record. They would seem to indicate a purpose which was never carried out, but for some reason was abandoned. This is consistent, too, with the execution in good faith of the deed of trust some three years after the date of the deed of bargain and sale. If, on the other hand, the latter deed was intended to be effectual, then Pritchett was guilty of the grossest fraud in borrowing money and pretending to secure its payment by a lien on land which he had already sold and conveyed to his son. In the view taken, however, no fraud is imputed. The courts will never infer fraud in fact from circumstances which are consistent with an honest intent.
The circuit court dismissed the bill brought by the complainants to declare the prior deed void as to them and to enforce the deed of trust.
The decree, for the reasons stated, is, in our opinion, erroneous, and must be reversed and the cause remanded for further proceedings.
The decree was as follows:
This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the deed in the bill and proceedings mentioned from Robert Pritchett to Robert L. Pritchett, bearing date September 13, 1855, is void as to the appellants claiming under the deed of trust bearing date Janu
Decree reversed.