14 Mo. 170 | Mo. | 1851
delivered the opinion of the court.
From the above statement, it will it once be seen that the questions arising on the record in this case are of grave and weighty import.
The registry laws of our State are brought before us for adjudication; and I will at once proceed to give my understanding and views of the same. I shall lay out of this case therefore all minor points, and come at once to the construction of these laws.
The act concerning conveyances, section 41, Rev. C, 1845, p. 119, directs the recording of all instruments affecting the estate in real property, an| provides, that from the time of filing the same with the recorder, for record, they shall impart notice to all persons of the contents thereof, and all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice.”
The next section provides, “that no such instrument in writing shall be valid except between the parties thereto, and such as shall have actual notice thereof, until the same shall be deposited with the recorder for record.”
The acts regulating judgments and deeress provides in the second section, Rev. C., p. 323, “that judgments and decrees rendered in any court of record, shall be a lien on the real estate of the person against whom they are rendered, situate in the county for which the court is held.” The execution law in designating what property is liable to be seized and sold under execution, in the 5th subdivision of the 14th section, page 253, includes “all real estate, whereof the defendant or any person for his use was seized in law or equity, on the day of the rendition of the judgment, order or decree, whereon execution issued,.or at any time thereafter.”
The,question arises on these statutory provisions, whether a bona fide purchaser of property who has failed.to record his deed, until after a judgment has been recovered against his.vendor, but who records it prior to any sale under'the judgment, can hold it against the person purchasing under the judgment.
It will be perceived, that the words of the acts under which the purchaser at sheriff’s sale, would .claim the land, confine the lien of the judgment to the real estate of the person against whom the judgment Avas rendered; and confine the operation of the execution to “real estate whereof the defendant or any person for his use, was seized in law or equity, on the day of the rendition of the judgment.”
A purchaser who has paid his money for land and received his deed, is the owner of the land, and the property is no longer the property of the vendor, nor has he any seizin in it, either at law or in equity, whether the deed be recorded or not.
If the words of the acts regulating judgments and executions were all that affected the question, there would be no difficulty in maintaining that the purchaser, at sheriff’s sale, would not hold against an unrecorded deed. But the question remains, whether the first purchaser, by failing to record, is postponed to a creditor, who obtains a judgment against the vendor. This question, for its solution, depends upon the clauses of the act concerning conveyances, which I have above quoted.
The words of the 41st section, in declaring that the deposit of the deed for record “shall impart notice to all persons of the contents thereof” are explained, in my opinion, by the subsequent words of the same section, which provide, that all subsequent purchasers and mortgagees shall be deemed in law and equity to purchase with notice.
The obvious meaning of the whole section is that filing a deed for record imparts notice to all persons who shall subsequently become interested in the title either as purchasers or mortgagees.
The 42nd section, in declaring that no such instrument in writing shall be valid except between the parties thereto and such as shall have actual notice thereof, until .deposited for record, is not designed to allow any person to dispute the validity of an unrecorded deed, unless he is interested in the title under the same grantor — a mere trespasser cannot dispute it — there must be a title for value, under the grantor, to admit of the question being raised.
Now it will be seen, that a creditor, as such, is no where alluded to in the statute, as a person who is affected by notice, or to whom notice is to be given, and it would plainly be useless, to give actual notice of an unrecorded deed to a creditor with a view to affect the person who
A creditor by obtaining a judgment acquires a lien that binds the estate of the defendant against any subsequent act of his, but he acquires no interest or estate in the property. A purchaser of the property under the judgment of the creditor, is the first person who acquires an interest in the property, and is the person who is tobe affected by notice either actual or constructive.
If he has notice before he assumes the character of a purchaser, he vests his money in a speculation against the deed, and the judgment creditor takes the money upon his judgment.
The recording of the deed before the purchase is notice to him.
I exclude creditors altogether from the above statute, believing that they were never intended to be embraced within their provisions.
victual notice is a fact, which may be proved like any other fact, either by positive and direct evidence, or by circumstantial and presumptive.
Applying therefore the principles here marked down, to the facts as they appear from the record in this case, I come to the conclusion that the court below committed no error.
Its judgment is accordingly affirmed.
