9 Johns. 163 | N.Y. Sup. Ct. | 1812
To entitle the plaintiff to recover upon this case, two propositions must, be established; 1. That the deed from Bonnell to Goodyear was not void by reason of an adverse possession existing at the time; 2. That notice of that deed destroyed the effect of the prior registry of the deed from Bonnell to the defendant. ■ '
1. When the patentee, Bonnell, executed his deed to Goodyear, the defendant was in possession, under a covenant from Stephen Thorn to the Fosters, to convey to them the premises, upon a
2. The next question is, whether this deed was superseded by the subsequent deed from Bonnell to the defendant, of September, 1808, and which was first recorded.
There is no doubt that if a subsequent purchaser has notice, at the time of his purchase, of a prior unregistered deed, it is the same to him as if it had been registered. It is not a secret conveyance by which he can be prejudiced or defrauded; and if he purchases with knowledge of such prior deed, and with the expectation of getting his deed first registered, he does an act against good conscience, and in abuse of the statute, which was made to prevent, and not to protect, fraud. It is, therefore, a well settled principle, that such notice supplies the place of a prior registry, and the only question here is, whether the defendant is chargeable with such notice.
In July, 1808, and about three months before the defendant’s deed, Johú Haring went, as an agent for the defendant and the other occupants of the lot, to purchase the lot of Bonnell. Bonnell refused to sell, and told him that he had abeady conveyed the lot to Goodyear, one of the lessors of the plaintiff. Here, then, was a direct and positive notice to the agent of the defendant. Haring communicated this fact to Joseph Grover, who, in September following, went, as agent for the defendant, and the other occupants, to purchase, and succeeded in his mission. It is to be inferred that Grover was the agent also of the defendant, and, as such, made the purchase, because he had before acted as agent for Thorn, in selling the lot, and because he applied to Gould to go to the patentee and make the purchase, and, lastly, because we find him in Virginia at the time of the purchase, and a witness to the execution of- the deed. No doubt he was the agent who made the purchase, and from whom the deed was afterwards received. Here we have then notice of the prior deed given to two successive agents of the defendant, and both employed for the very purpose of making the purchase. The notice in each case was direct and positive, and given prior to the purchase. Can we possibly doubt, after this, whether the knowledge of the prior
We are, accordingly, of opinion, that the plaintiff is entitled to judgment.