Florance v. Morien, 98 Va. 26

Florance v. Morien

98 Va. 26 | Va. | 1900

Buchanan, J.,

delivered the opinion of the court.

The first assignment of error is that the Circuit Court erred in holding that the real estate sought to be partitioned was *31fiable in the hands of the heirs of the decedent and those who held under them for the State and county taxes remaining unpaid with which it had been assessed during the lifetime of his widow, to whom it had been assigned as dower.

It does not appear that the taxes in controversy, either to the State or county, amount to the sum of $500. This court is, therefore, without jurisdiction so far as the decree complained of is in favor of the Commonwealth and the county of Henrico, unless the title to the real estate is drawn in question, as appellants contend. It does not appear, as counsel for appellants insist, that the Auditor had become the purchaser of the land upon the failure of the fife tenant to pay the taxes, and that the Commonwealth’s title thus acquired is drawn in question. The certificate of -the clerk of the County Court of Henrico county stating that there had been such a sale cannot be considered here, as it is not part of the record upon which the case was heard in the Circuit Court.

Taking advantage of the wise provisions of section 3460 of the Code, the parties agreed such facts, and brought up such portions of the record only, as they thought sufficient to enable this court properly to decide the case. The record so made up shows that, in the course of the proceedings before the commissioner to whom the case had been referred, it appeared and he reported “that a large amount of State and county taxes upon said property which accrued during said fife tenancy” (of the widow) “was unpaid and stood upon the tax books as a charge against the same, being fisted in the name of TEtichard Morien’s heirs’ ”; 'that his report was excepted to because of his finding that the real estate was liable in the hands of the remainderman for taxes which accrued during the fife tenancy; that the decree of the court overruled that exception and. held that the land was “ liable in the hands of the plaintiff and his co-tenants for the taxes which accrued thereon during the lifetime of their mother.....”

*32Erom these facts, and they are substantially all that are disclosed by the record filed in this court as to the controversy between the appellants and the Commonwealth and county of Henrico, it is clear that the question raised in the Circuit Court and decided by it was as to the lien of the taxes upon, and not as to the title of the appellants to, the land, and that this court is without jurisdiction to review the decree so far as it is in favor of the Commonwealth and the county of Henrico (Umbarger v. Watts, 25 Gratt. 167; Hartsook’s Adm’r v. Crawford’s Adm’r, 85 Va. 413); and as to them the appeal must be dismissed as improvidently awarded.

The second and remaining assignment of error is to the action of the court in holding that the deed of trust executed by Eichard K. Morien to secure the Eichmond Perpetual Building, Loan and Trust Company had priority over the deed of trust executed by him to E. E. Elorance, trustee, to secure certain other creditors.

The ground of this contention is that the description of the land in the first-named deed of trust is not sufficient to charge subsequent purchasers with notice under the registry laws.

The description of the lands conveyed by the prior deed of trust is as follows: Eirst, a house and lot, belonging to said Eichard K. Morien, on the southeast comer of Cary and Meadow streets, in the county of Henrico; and, second, “all the right, title and interest of said Eichard K. Morien and wife in and to all the real estate lying in the county of Henrico of which Eichard Morien died seized and possessed, together with any and all other real estate which they may own, and any and all right, title and interest which they may have in and to any and all real estate in said county, of whatever kind or wheresoever the same may be, or however acquired by the said Eichard K. Morien and wife.” The junior deed of trust embraced all of Eichard K. Morion’s interest in his father’s estate, and it is agreed that Elorance, trustee, had no actual notice of the prior *33deed of trust. The commissioner to whom the case was referred reported that “the deed to the trustees of the Richmond Perpetual Building, Loan and Trust Company describes the property with sufficient accuracy to enable any and all parties interested to ascertain what interest, if any, passes thereunder. In fact, the description is almost identical with the Plorance deed. It locates the property in Henrico county, and as the interest of Richard K. Morien in the real estate of his father, Richard Morien, in said land.” The commissioner’s report was excepted to “ because of his finding that said deed, of trust from said Richard K. Morien to the trustees of said company gave constructive notice to said Plorance, trustee, of the undivided interest of said Richard K. Morien in said dower property, and that the deed to said Plorance, trustee, was, therefore, postponed to the claim of said Richmond Perpetual Building, Loan and Trust Company.” The court overruled that exception, and held that the prior deed of trust was sufficient to charge Plorance, trustee, with notice.

Prom the commissioner’s report and the exception to it, it appears that the controversy in this case between the trust creditors is over the property described in the prior deed of trust as “all the right, title and interest of said Richard K. Morien and wife, in and to the real estate lying in the county of Henrico of which Richard Morien died seized and possessed.” Is that description sufficient to give notice to subsequent purchasers under the registry laws?

The object of the registry laws is to compel every person receiving an instrument required to be registered to place it upon the records in order that he may thereby protect his own rights as well as those who may afterwards acquire an interest in the same property. The recorded instrument is sufficient to operate as constructive notice under the registry laws if the property be so described or identified that a subsequent purchaser or incumbrancer would have the means of ascertaining *34with accuracy what and where it was, and. the language used he such that, if he should examine the instrument itself, he would obtain thereby actual notice of all the rights which were intended to be created or conferred by it. 2 Pom. Eq. Jur., sections 649, 654; 2 Minor’s Inst. 977 (4th ed.); 2 Devlin on Deeds, section 650; Le Neve v. Le Neve, 2 W. & T. Lead. Cases, pt. 1, p. 205 and notes.

The deed in this case shows from whom the property in controversy was derived or acquired, in what county it was locáted, and that all the grantor’s right, title and interest therein was intended to pass by it for the purposes for which it was executed. ETo subsequent purchaser or encumbrancer could have read that deed without obtaining actual notice of all the rights which the beneficiary under it is now asserting.

We axe of opinion, therefore, that it was sufficient in law to charge subsequent purchasers with notice thereof, and that the appellant, Elorance, trustee, must be deemed to have had notice of it, and to take subject to the lien thereof.

The decree appealed from must be affirmed.

Affirmed.