9 Miss. 70 | Miss. | 1843
Lead Opinion
delivered the opinion of the court
The defendant in error brought ejectment against the plaintiff» in error for a lot of land in Natchez, and recovered judgment; to reverse which, the plaintiffs in error sued out their writ of error.
The facts contained in an agreed case are as follows, to wit; John Dixon was the original owner of the lot; on the 13th of September, 1386, he conveyed it to John P. Campbell, who-thereupon took possession but failed to have his deed recorded before the 25th of April, 1838, which was long after the proper-time for recording had elapsed.
On the 24th of October, 1836, Campbell conveyed to John Shirley, who took possession but did not have his deed recorded until the 4th of March, 1837, which was after the proper time for recording had elapsed.
In April, 1838, Shirley conveyed part of the lot to Edward Dixon, and the residue to Joseph Starkey, the plaintiffs in error, who took possession and had their deeds regularly recorded within three months.
John Dixon, the first owner, became indebted to Briggs, Lacoste & Co. by a bill of exchange dated the 31st January, 1837, payable on the 31 st of January, 1838. Suit was brought on this bill, and on the 17th of April, 1838, Briggs, Laeoste &
The ground on which the plaintiff seeks to overreach the deed from John Dixon, is, that it was not recorded as the statute requires, and is therefore void against creditors. The superiority of title must depend upon the construction of the registry act.
In applying the provisions of the statute to the foregoing facts, the first question to be determined is, are creditors affected by notice of an unregistered deed ? If it should appear that they are, then it will be necessary to determine what constitutes notice.
This case seems to have excited much interest amongst the members of the bar generally, and has been discussed with-great ability and research in all its bearings. After the passage of the registry acts in England, the court of chancery seized upon the circumstance of notice to a subsequent purchaser of a pre-existing unregistered deed as sufficient to create an equity between the prior and subsequent purchaser, by which the former should prevail against the latter notwithstanding the legal title which passed to the subsequent purchaser. By the 27 Hen. 8 c.M6, it was provided that a bargain and sale should not enure to pass the freehold unless it was recorded. As a conveyance of the legal estate, it was therefore inoperative even between the vendor and vendee. The 7 Ann. c. 20, provided that unregistered conveyances should be void except between the grantor and grantee. It contains no exception as against such as may have notice of the unregistered deed ; consequently, there could be nothing more than an equity in favor of the holder of an unregistered deed against a subsequent purchaser who had purchased with notice. The notice gave rise to the equity, as in that case the subsequent purchaser was supposed not to be within the reason of the law. Equity, therefore, en-
Are creditors, alike with subsequent purchasers, affected with notice of a prior unregistered deed ? To a correct understanding of the statute, it is necessary that the several provisions should be examined with some minuteness. It is an act concerning conveyances. The first section provides that no estate of inheritance, or freehold, or for a term of years, shall be conveyed unless the conveyance be in writing, sealed and delivered; “nor shall such conveyance be good against a purchaser for valuable consideration, not having notice thereof; or any creditor, unless the same writing be acknowledged by the party or parties who have executed it,” &c., or bexproved by a subscribing witness, the acknowledgment or proof to be made before a competent officer, who is required to endorse his certificate, and then the deed to be deposited with the clerk of the proper court for record. And the deed, when so acknowledged and recorded, may be
The second section concerns covenants and conveyances made in consideration of marriage, and provides that they shall not be good “ against a purchaser for valuable consideration not having notice thereof, or any creditor,” unless recorded.
The third section provides that all bargains, sales and other conveyances, whether made for passing an estate of freehold or for years, and all deeds of settlements upon marriage, either of realty or personality, and deeds of trust and mortgages, “ shall be void as to all creditors and subsequent purchasers for valuable consideration, without notice,” unless they are acknowledged or proved, and lodged with the clerk for record, “ according to the directions of this actbut as between the parties and their heirs, and subsequent purchasers with notice, such deeds are declared to be binding.
The fourth section directs when deeds for personal property shall be recorded, which by law are required to be placed upon record.
The fifth section provides that every conveyance, covenant, agreement or deed mentioned in the act, except deeds of trust and mortgages, shall be delivered to the clerk of the probate court for record within three months, and in that case they take effect from their date, but if not so delivered then they only take effect from the time when they are so delivered, deeds of trust and mortgages in all cases taking effect only from the time they are delivered for record.
The subsequent sections prohibit the recording of deeds without the proper certificates, and prescribe the forms, &c., and direct the clerk in his duties.
It will be perceived that by a literal and grammatical construction of the first section, creditors are exempt from the effect of notice of an unregistered conveyance. As to them, notice does not alter the case, the deed being void at all events. But subsequent purchasers are affected with notice. The second section also keeps up the idea that an unregistered deed is void-against creditors at all events. But the third section is clear
But apart from a comparison of the several sections, if we look to- the reason and object of the whole law, we find that creditors are equally within its purview, and have been so considered in the interpretations of these statutes in England and the United States. These interpretations show the reason of the
We know that by the common law, livery of seisin was necessary to pass a freehold estate. The object was to give public notoriety to the transaction, and thus to prevent imposition. The effect of a bargain and sale without livery, which was a sort of real contract, was to raise a use, the bargainor being a trustee for the bargainee. It was not a perfect legal conveyance of the freehold, because livery of seisin was wanting. The effect of the statute of uses was to execute the use, by transferring possession to the usee. Consequently under the operation of that statute, a bargain and sale became a means of conveying the freehold without livery of seisin. The notoriety of the transaction was wanting. Perfect legal conveyances might be made secretly. Subsequent purchasers were liable to be deceived, and so were persons taking mortgages on the estate. This evil consequence was perceived by the same parliament that enacted the statute of uses, and to guard against it by supplying the means of information, the registry act of Hen. 8, was passed, which provided that a conveyance by bargain and sale, should not pass the freehold unless made by indenture, and enrolled within six months. Thus we plainly perceive the reason of the law. It was to furnish a substitute for livery of seisin, which had been in effect, dispensed with, by the substitute of uses. Registration furnished the means of information by proper diligence, and amounts to constructive notice, or notoriety, without which the conveyance was inoperative even between the parties. The statute of 7 Ann, c. 20, went a step farther, by declaring the unregistered conveyance void as to subsequent purchasers and mortgagees, but valid as between the parties and their heirs. There is no exception in this act as to such as may have notice. The conveyance was void as against subsequent purchasers and mortgagees, either with or without notice. It is not so with our act; it is declared void only in favor of subsequent purchasers
The statute of Massachusetts is in substance the same as the English statutes, differing in no essential particular from our own, the only difference being that the Massachusetts act, like the statute of Ann, is silent as to the effect of notice, whilst ours
The New York registry act differs in one particular. Unregistered deeds are void only as to subsequent purchasers, nothing being said as to the effect of notice. As to all others it may be inferred that they are valid. But as to purchasers the same construction has been given, notice being regarded as equivalent to registration. That a purchaser with notice is not within the intention and reason of the law. 13 J. Rep. 471. 4 Wendell, 585. 6 Wendell, 213. 8 Wendell, 620. 11 Wendell, 442. 1 Paige, 127. 3 Paige, 421. And a similar construction prevails in New Jersey. 1 Green’s Rep. 43.
In Virginia the decisions seem to have'fluctuated on a statute like ours. The case of Gibson v. Randolph, 2 Munford, 310, is based upon the preceding construction, but the case of Guerrant v. Anderson, 4 Randolph, 208, adopts a different one, a distinction being taken between creditors and purchasers. The decision is, to say the least, rather unsatisfactory. The subject of the contest was not land, but personal .property, and it was claimed not by an absolute deed, but by a mortgage, which, I believe in Virginia as here, takes effect only from the date of record; before that, it binds nothing, and yet it is evident the court construed the act as though the mortgage had been a deed. The court is evidently wrong in saying that a court of equity never affected creditors with notice, and the error in this, shows a want of due consideration, and leaves the authority doubtful in all points. A different doctrine is recognized and sanctioned
This is also the rule in South Carolina, where the registry act is like that of Massachusetts, which, as already stated, does not materially differ from ours. 1 McCord, 265. 2 Ib. 152, 274. 1 Bailey, 315.
In Kentucky this has been the construction, and the question has lately received a very full adjudication in a case reported in 4 Dana, where the reasons and object of the act are reviewed at some length, and this interpretation given.
It must be useless to multiply authorities. Every State in the Union has a similar statute, and in every one a similar construction has been given. Chancellor Kent says, “it is a settled rule that if a subsequent purchaser or mortgagee, whose deed is registered, had notice at the time of making his contract, of the prior unregistered deed, he shall not avail himself of the priority of his registry to defeat it.” 4 Kent, 169-70, 456-7. This covers the whole ground, for a mortgagee is but a creditor. He is not regarded as a purchaser, and hence the statute of Ann declared that unregistered conveyances should be void as to all subsequent bona fide purchasers and mortgagees. We cannot perceive any, even the most remote reason, for placing a general creditor in a more favored condition than a mortgage creditor. Justice would dictate the reverse. The general creditor contracts on a mere personal responsibility, whilst the mortgagee contracts on a specific lien, and may have nothing beyond it. It would be much fairer to give one the fruit of his specific lien, than to avoid all conveyances in favor of one who had no lien. The reasoning of the authorities shows that it was the policy and object of the law to protect those who might be injured by secret conveyances. It was not to prevent bona fide conveyances, which might be prejudicial in its consequences. Creditors may be injured by secret conveyances, but a knowledge of the conveyance enables them to guard against the mischief, and they are therefore not within the mischief intended to be guarded against when they have notice. Being equally as free from danger as subsequent purchasers are with notice, I conclude
In the next place, it becomes necessary to inquire what will constitute notice, or the evidence of it. Notice that the owner has disposed of his property, is susceptible of proof like any other fact, by showing that the person to be affected, had actual knowledge of it by information or otherwise, or by circumstances from which hé must have inferred such sale. Possession by the vendee, is evidence to creditors and purchasers of the conveyance; or, at least, is so strong a circumstance, that it is now uniformly regarded as sufficient evidence of notice. This rule results necessarily from the nature of the act, it being a substitute for livery of seisin. 10 Mass. Rep. 60. 6 Wendell, 213. 11 Wendell, 242. 3 Paige, 421. 10 Vermont Rep. 452. If we look at the reason for considering possession as notice, it would seem to limit the term “ creditor ” to such as had trusted on the faith of the ownership of the property; and that by crediting when their debtor was not in possession, they could not have calculated on. that as a means of remuneration. It appears by the agreed case, that Campbell took possession when he purchased of Dixon, which was long before the debt was contracted. Shirley took possession when he purchased, and so did the plaintiffs in error when they purchased of him. Briggs, Lacoste & Co., the creditors, then had notice before they contracted with Dixon, that he had conveyed the lot in question. This placed them in the attitude of creditors with notice, against whom the statute has made an unregistered deed valid. But, besides this, it appears that the judgment creditor had actual notice of the conveyance before he recovered judgment. This would seem to be sufficient. As general creditor, he could not avoid the deed. It was valid until he could convert his debt into a lien; but before he can do that, he has notice of the conveyance. Under such circumstances, eould the judgment become a lien? It is difficult to say that it could, unless we also assume that the debt itself was a lien. This is another difficulty growing out of the word “ creditors.” Tn looking back at the history of this enactment, it is probable that it was intended to protect mortga
For the foregoing reasons, I am of the opinion that the court below should have rendered judgment for the defendants on the agreed case, and that the judgment ought to be reversed; and that this court should render the judgment which the court below should have given.
Dissenting Opinion
delivered the following dissenting opinion.
. Having the misfortune in this case to differ from my associates, as to the construction of the registration laws of this State, I shall very briefly state the grounds of that difference.
When there is no ambiguity in the terms of a statute, there is, in my estimation, no room for interpretation. From a careful examination of the act as contained in How. & Hutch, p. 343, it is clear to my mind, that the question of notice or want of notice, was not intended by the legislature to be applicable to the case of creditors. The phraseology of our act is different from that of most other statutes, either in England or in this country, upon the subject. The first five sections speak of the consequence of a failure to record, the various instruments of conveyance required to be recorded. In the first section, an unrecorded conveyance is declared not to be good against a purchaser for valuable consideration not having notice thereof, or any creditor; in the second precisely the same words are used. In the third, it is declared, that they shall be void as to all creditors and subsequent purchasers for valuable consideration without notice; “ but the same as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or with
In the language of these various sections, it is plain to my apprehension, that the legislature intended that the rights of creditors, when in conflict with an unrecorded deed, should be settled without reference to the point of notice or want of notice. In one part of the third section taken alone, the language might admit a different construction-,, and it might "appear that the doctrine of notice was intended to apply as well to creditors as to purchasers. But this is explained by the subsequent part of the same section, which declares that the unrecorded conveyances “shall be valid as between..the parties, and as to purchasers, with notice, or without vaIuable:consideration,” omitting creditors, and thus leaving the inference: to my mind to be irresistible, that as to creditors they were not to be valid.
With this conviction that the intention of the legislature has been clearly expressed, the adjudications of other courts upon similar statutes, but couched in different terms, cannot induce me to yield my own conclusion'. The English cases proceed upon equitable exceptions, which the courts permitted to prevail in the construction of this statute, as they likewise did in regard, to the statutes of limitations and of frauds. Such equitable exceptions, when _ not made in the statute itself, according to my views, lie beyond the power of the court.
In Virginia, under a similar statute, it has been held that creditors are not affected by notice; Guerrant v. Anderson, 4 Rand: though in that State, the decisions appear not to be uniform. A similar decision has been made in Tennessee, and in
It is true that most of the other courts of the Union have decided differently, and if the language of our statute was less plain, and explicit, I might be willing to surrender my own opinion to the authority of those decisions. But to my mind it admits of but one reading.
I shall content myself with this very general view of the subject, because a majority of the court have, after mature deliberation, come to a different conclusion. I say thus much only to show the grounds of my dissent, and that it has not grown out of a want of reflection on the subject.
Note. We -would call the attention of the profession to the argument of Mr. Maury, published as an appendix, at the end of this volume, which was submitted to the court, and considered by them in this cause ; and is published with the approbation of the court.
Concurrence Opinion
I concur in the above opinion.