7 Watts 261 | Pa. | 1838
The opinion of the Court was delivered by
On the trial of this cause the defendant offered a paper dated the 17th of April 1829, called a deed of defeasance from Asbury Crocheron to John H. Knapp, which was proved by the oath of John H. Stephenson, the subscribing witness, before Thomas M’Elrath, commissioner for Pennsylvania in the state of New York. The plaintiff objected to it, on the ground that the instrument was not proved according to law; but the court overruled the objections, and sealed a bill of exceptions.
The certificate of the commissioner is given under his hand alone, without a seal, and the question is, whether it is not on that account defective. The act of the 14th of April 1828 appears to have been the first which was passed by our legislature for the appointment of commissioners in other states, to take the acknowledgement and proof of conveyances of lands lying in this state, as well as other documents to be used or recorded here: and this act required the acknowledgement or proof to be certified by the commissioner “under his seal.” But the requisition of a seal in certificates of this description being found inconvenient, a supplement was passed on the 19th of February 1835, by which all acknowledgements or probates of deeds, &c. theretofore taken or made, or which should thereafter be taken or made, were to be construed to have the same effect, to all intents and purposes, although the same might have been certified by the officers before whom such acknowledgement or probate was made under their hands only, as if the same had been certified under their hands and seals, and declaring the omission of the seal in any certificates theretofore made, or thereafter to be made, should not avoid or prejudice the instrument.
It is contended by the plaintiff, that this supplementary act does not embrace the case of a certificate by a commissioner; that he is not to be considered as an officer within the meaning of the law; but that it contemplates only the proceedings of judges, justices and others acting within this state. There seems to be no sufficient reason for making this distinction. Deeds acknowledged or proved out of the state are as much within the evil intended to be remedied as
The next bill of exceptions is to the rejection by the court below of evidence offered by the plaintiff, that from the year 1830 down to to the year 1833 it was generally reported in the neighbourhood that John H. Knapp had sold out all his interest in that place to Mr Croeheron; to be followed by proof, that the same was communicated to Weeks, one of the defendants.
The general doctrine is, that whatever puts a party on inquiiy amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. Notice of a deed is notice of its contents; and notice to an agent is notice tohis principal. 4 Kent's Com. 179. But notice of a rumour of a conveyance or incumbrance seems not to be considered as either actual or implied notice. Indeed to set on foot an inquiry into the foundation of mere rumours would, in most cases, be a vain and impracticable pursuit. Lex neminem cogil ad vana scu impossibilia. Kerns v. Swope, 2 Watts 78; Wildgoose v. Weyland, Goulds. 147; Cornwallis’s Case, Toth. 254; Tolland v. Standbridge, 3 Ves. 478. The evidence offered was immaterial, since if the plaintiff had traced to the defendant a knowledge that this rumour was in circulation in the neighbourhood, that Knapp had sold to Croeheron, such knowledge would not constitute that kind of notice which in equity would affect the conscience of the defendants.
I shall now proceed to consider the questions which involve the merits of the case, without following precisely in the track of the errors assigned in the answers of the court below to the numerous points presented by the respective parties.
The deed from Knapp to Croeheron, made on the 17th of April 1829, standing by itself, would convey an absolute title, but, taken in connection with the defeasance executed on the same day between the parties, is to be considered in law in the nature of a mortgage. It is all one transaction. The deed is recited to be a security for money lent and advanced by Croeheron to Knapp, declaring that to be the purpose of the deed, with a covenant for a reconveyance, in case of the repayment of the money with interest in one year. The deed and defeasance constitute in effect but one instrument, operating
Being then in nature of a mortgage, and attended by all the incidents of a mortgage, the next question is, whether the recording of the deed from Knapp to Crocheron, without the defeasance, is sufficient, within our recording acts, as against a subsequent bona fide purchaser or creditor of the grantor, without any other notice. And I am of opinion that it is not. indeed, the very point was decided by this court in the case of Freedly v. Hamilton, 17 Serg. & Rawle 70. There Henry Freedly, Jun. made an absolute deed to his father Henry Freedly, Sen., and the latter, by a separate defeasance of the same date, declared that the deed was made to secure the sum of 6000 dollars due to him, with a covenant to reconvey on payment thereof with interest by a certain day. The deed was recorded, but not the defeasance. Afterwards judgments were obtained against the grantor, H. Freedly, Jun., and this court held that the mortgage creditor was to be postponed to the judgment creditors in a contest between them, as to the proceeds of sale of the land. This case I consider as a strong authority on this point, and one which ought to be binding unless it clearly appeared that the court were mistaken in point of law. Of this, however, I am by no means persuaded. A mortgage and a defeasible deed in nature of a mortgage are both within the express provisions of the act of 1715 and the act of the 28th of March 1820, as well as the retrospective act of the 23d of September 1783. No reason exists why a difference should be made in the duty of the parties to put the lien on record where but one instrument is used, and where there are two. The great object of the recording acts is, to compel those who claim a priority of conveyance or lien to place the true nature of the transaction on record, so that all may have recourse to it for correct information; but if the deed alone be recorded without the defeasance, a false notice of the
No inconvenience can arise from requiring the defeasance to be recorded as well as the absolute deed; for although ultimately the defeasance passes into the hands of the grantor, and out of the control of the grantee, yet it is in the power of the grantee to provide for the simultaneous recording of the instruments before that takes place, and his not doing so may be deemed collusion as to third persons. Besides, mortgages in this form are so much liable to accidents and abuse, that the court of chancery has frequently and very properly discouraged them. 4 Kent's Com. 141, and cases cited. I do not think that nice distinctions should be entertained to support the recording of but part of a transaction and the suppressing of the rest, contrary to the plain language of our acts of assembly, and contrary, it would seem, to public policy and to the furtherance of plain dealing. I am, therefore, of opinion, that the mere recording of the deed without the defeasance is inoperative and void, not authorized by act of assembly, and therefore not notice of any thing, so far as respects third persons claiming as bona fide purchasers or subsequent mortgagees under the mortgagor; that it is, in other words, the case of an unrecorded mortgage, and that Jaques, by his purchase from Crocheron, obtained merely a transfer of his rights as holder of such unrecorded mortgage.
Considering it then an unrecorded mortgage, the next question that arises is, whether if Weeks and Saynisch, before their purchases under the deed from Knapp, had actual notice of the existence of a claim or title in Jaques, they are not in equity affected by it. The court below charged that they were not. There is much plausibility in the argument, that the strict letter of the statute ought to be enforced, and that nothing should be allowed to dispense with the actual recording of the instrument. But when this doctrine comes to be applied in practice, it is found to be too strict to be insisted on withoutany exception—summum jus proves to be summa injuria. Cases occur in which such a construction of the laws would sanction injustice and reward the most palpable fraud and iniquity. Courts,
This however applies only to the title of the defendants under (he deed from Knapp to Weeks and from Weeks to Saynisch. The defendants set up another title under a deed dated the 31st of December 1835 from John W. Gurnsey, who purchased at sheriff’s sale, on execution under the judgment of Willard v. Knapp, entered the 20th of June 1832. And although the law with regard to a purchaser or mortgagee with notice is as I have stated, yet it seems to be different with regard to a judgment creditor, and the purchaser under an execution on such judgment. For it has been adjudicated by this court, that a judgment creditor takes a priority over an unrecorded mortgage. Semple v. Burd, 7 Serg. & Rawle 290. Freedly v. Hamilton, 17 Serg. & Rawle 70. If so, a purchaser at sheriff’s sale under such judgment cannot, be affected by a notice of a mortgage, which notice is given subsequently to the judgment.; for if he could, it would render the mortgage not available. It. would give it a priority over the judgment, and take away the value of the judgment to the amount of the mortgage. Notice to a purchaser at
There is therefore no equity in Jaques arising from notice to the defendants as respects this title. But there yet remains another aspect in which it is necessary to consider this part of the case; and that is, how far Jaques is to be deemed to have a prior equity as a previous purchaser from Knapp without notice. For of two purchasers without, notice, qui prior est in tempore potior est injure.
I think it clear that if Jaques had bought the fee simple from Crocheron without any notice whatsoever of the transaction between Crocheron and Knapp, he would hold the title as well against Knapp and Crocheron as against any subsequent purchaser or creditor claiming under them, it never could be permitted to Knapp to make an absolute deed, and allow his grantee to sell under it to an innocent purchaser, and then destroy the title by producing a concealed defeasance. A bona fide purchaser (by which I mean one purchasing without notice), taking the title on the faith of a recorded deed executed by one having the title, would not be suffered tobe defrauded by any secret collusion or private defeasance that may have existed as between his grantor and the person from whom he derived his title. A purchaser without notice holds, though his vendor had notice. The case of Freedly v. Hamilton was between the original parties. No purchaser from H. Freedly, Jun. prior to the judgment was interested.
Then was Jaques a purchaser without notice before the judgment % It is not pretended that Jaques had any actual notice of the defeasance. But it is contended that although he may not have had actual notice, yet, that before and at the time when Jaques purchased from Crocheron, Knapp remained in notorious and exclusive possession of the premises, and that such possession was constructive notice to Jaques, and sufficient to put him on inquiry as to the claim of title by which Knapp held possession. And this leads to the inquiry how far Knapp’s possession was constructive notice to Jaques.
The doctrine of constructive notice seems not to be very accurately settled. It is difficult, says Mr Sugden, to say what will amount to constructive notice ; Sugd. Vend. 534. The doctrine of notice, says chancellor Kent, is very greatly surcharged with cases abounding in refinements; it is indeed difficult to define with precision the rules
The above mentioned cases in this court, while they recognize the general doctrine, show that knowledge of the possession has not the effect of visiting the purchaser with notice of every fact and circumstance which hemighthave learned bymakinginquiryofthe possessor: and if we recur to first principles, it would seem that the utmost that could fairly be implied from the possession by another person than the grantor is, that such possessor has some claim or title to the land, and therefore the purchaser, generally speaking, is to be considered as taking subject to such claim or title. Knapp therefore remaining in possession, and Jaques agreeing with a knowledge of such possession to purchase from Crocheron, might perhaps be considered as having notice of the claim of Knapp as mortgagor by virtue of the defeasance. But I am not able to go the length of saying, that he thereby also had notice that such defeasance was not recorded, and therefore was a purchaser of an unrecorded mortgage, This it seems to me would be to heap construction on construction, to infer that there existed a defeasance, and also that such defeasance was not recorded ; whereas, in the absence of any actual notice, the
I am therefore of opinion that at the utmost the effect would be, that Jaques bought the fee simple subject to the defeasance and liable to the equity of redemption, having a prior equity over any subsequent purchaser, and entitled on the casejoefore us to recover the premises and hold them till he is paid the amount advanced by Crocheron to Knapp with interest, or the sum be paid to Crocheron if greater than that, with costs of suit.
As to the errors assigned on the other bills of exception they are not sustained.
There is nothing wrong in the first two matters assigned for error, which are bills of exception to the opinion of the court as to the admission and rejection of evidence. The evidence, as offered in the first bill, was properly admitted ; and the evidence mentioned as offered in the second bill was rightly rejected. In the first, bill of exception, the objection to the deed’s being read in evidence was, that the probate thereof was not certified by the commissioner before whom it purported to have been made, under his hand and seal, as required by the act of assembly of the 14th of April 1828, authorising the governor of the state to appoint commissioners in our sister states for the purpose of taking the acknowledgements or probates of deeds, mortgages or other conveyances, &c., of lands lying within this state. If this were (he only act relating to this point the objection would have been good, and ought to have prevailed ; but there is a further supplement on the subject of acknowledging and recording of deeds, passed the 19th of February 1835, which enacts “ that all acknowledgements or probates'of deeds or other instruments of writing theretofore taken or made, or which shall thereafter be taken or made, shall be construed to have the same effect to all intents and purposes, although the same may have been certified by the officers before whom such acknowledgements or probates have been made under their hands only, as if the same had been certified under their hands and seals,” &c. The letter, spirit and meaning of this latter act all embrace and provide for this case in the most clear and explicit terms; so that there cannot be a doubt of the deed, proved and certified as it is, being rendered thereby admissible in evidence. It was said that this latter act was only designed to extend to cases of deeds acknowledged or proved before officers residing within the state, because the term “officers,” as it is contended, does not include commissioners. This distinction is too refined ; indeed it is not well founded; and is certainly such as the legislature never thought of. For strictly and properly these commissioners are officers, and officers of the state too pro hac vice, be
The evidence offered, as stated in the second bill of exception and rejected by the court, was to prove that, 'from 1830 to 1833 it, was generally reported in the neighbourhood that John H. Knapp had sold out all his interest at that place (including the land in dispute) to Asbury Crocheron; and that the report was communicated to Weeks, one of the defendants. The vague reports of persons not interested in the property are not, to be regarded by a purchaser; nor are they sufficient to affect his conscience. And accordingly, in Wildgoose v. Weyland, Gould. 147, pl. 67, A, being seised of land in trust for the use of B, was about selling it, when one came to the person who proposed buying and told him to take heed how he bought the land, for A had nothing in it, but upon trust to the use of B ; and then another came to the vendee and said to him, it is not true as he was informed, for A was seised of the land absolutely; upon which the vendee bought it; and though the information given by the first proved to be true, yet the purchaser was held not to have notice. And the lord keeper said, “it was not sufficient notice of the trust; for flying reports are many times fables and not truth; and if it should be admitted for sufficient notice, then the inheritance of every man might easily be slandered.” So in Cornwallis’s Case, Toth. 186, tit. Trust 164, where the conveyance was absolute on its face, but a trust in fact existed, and a rumour to that effect prevailed, which had come to the ears of the purchaser before he bought, yet he was held not to be concluded by it. And in Tolland v. Standbridge, 3 Ves. 486, lord Al'vanley, master of the rolls, thought it not sufficient to prove notice, that it had been asserted in the hearing of the purchaser, or that he had been told, that some other person claimed a title; and doubted very much whether a general claim was sufficient to affect him with notice of a deed of which he did not appear to have had knowledge. See also Sugd. on Vend., ch. 17, tit. Notice, 729, 730. The court, below, therefore, were right, as it appears to me, in rejecting the evidence.
The next matter assigned for error raises the question whether
The next question which seems to arise out of the matters assigned for error is, may Jaques be considered a bona fide purchaser without notice, invested with the legal title to the land, and therefore entitled to recover1? To his being so considered, though he may not have had actual notice that Crocheron, of whom he bought, was in reality only a mortgagee of the land and not the absolute owner, yet it may be objected that in equity he ought to be held affected with notice arising from Knapp’s being in the actual possession and still continuing to occupy it at the time he purchased. The fact of Knapp’s having remained in the possession after giving the mortgage until he left that section of the country in May 1833, it must be admitted, seems not to have been controverted ; or at least, all the evidence, .and there is not a little in this respeet, goes to show without the slightest contradiction it was so. Every purchaser of land, I take it, as a general rule, must be presumed in equity to know whether the possession be vacant or not; and if a third person be in the actual and visible occupation of the land at the time of his purchase, it is sufficient to put him on inquiry, in order that he may know by what tenure or right such person holds the possession; and whatever is sufficient to put the party on inquiry is equivalent to notice in equity. Smith v. Lane, 1 Atk. 489, 490; S. C., Rep. temp. Hardw. by West 669. Indeed this has ever been considered, I believe, as the settled rule in equity. Correy v. Caseton, 4 Binn. 148; Sugd. Vend. (7th Eng. Ed.) 743, 744. Accordingly it was held in Daniels v. Davidson, 16 Ves. 249; 17 Fes. 433, that the possession of a tenant who had taken it under a lease for a term of years, and during the pendency of the lease made a contract with his lessor for the purchase of the reversion, was notice to a subsequent purchaser, the lease being still unexpired, not only of the tenant’s interest under it, but likewise of his equitable title to the estate under his contract for the purchase of it. And again, in Allen v. Anthony, 1 Meriv. 282, it, was ruled that the possession of the tenant was notice to the purchaser of the whole of the interest which the tenant actually .had in the estate; and therefore of his right to the timber growing thereon, although such right accrued by a title posterior to that on which his possession was
But it has been objected, that as the deed of defeasance was not recorded, the deed of conveyance from Knapp to Crocheron must, notwithstanding it was recorded within the six months, be considered as an unrecorded mortgage according to the decision of this court in Friedly v. Hamilton, 17 Serg. & Rawle 70, and therefore no interest or estate in the land passed to Crocheron. It is contended also, that this is in conformity to the act of 1715, which enacts, among other things, that “ no deed or mortgage or defeasible deed, in the nature of mortgages, thereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged or proved and recorded within six months after the date thereof, where such lands lie, as therein directed for other deeds.” This objection has been met, first, by the argument that the deed of conveyance to Crocheron was absolute on its face, and was to be taken and received as such by third persons at least, unless Knapp, who held the deed of defeasance, choose to record it also. That it was at life election, either to make the deed given to Crocheron an absolute conveyance, or defeasible, as he pleased, by placing or omitting to place the deed of defeasance upon record : that if he did not record it, he might be the sufferer himself by putting it in the power of Crocheron to dispose of the land absolutely ; but that nobody else could be injured by his omission to record it. This argument certainly carries with it great force, if not conviction; and I am far from being satisfied that such a transaction has not been generally looked at in this point of view ; and not as one tending to delay, binder or defraud creditors. For the mortgagor having consented, as it were, by omitting to.
It may possibly, however, be thought by some, that this doctrine is repugnant to the rule, that once a mortgage always a mortgage: but the rule being properly understood, it is clear that the parties are not precluded by it from making subsequently a new agreement for the absolute sale of the estate, and by this means turning the mortgagee into an absolute purchaser of it. The rule only prevents the parties from making any agreement or device contemporaneously with the execution of the mortgage, whereby it shall upon any subsequent event be turned from a mortgage into an absolute purchase of the estate. But it never has been extended, so as to prevent the mortgagor from agreeing subsequently to release his equity of redemption in consideration of his being released from the payment of the mortgage, debt and interest, and from carrying the same into effect. Nor can it be said with propriety that the rule, thus understood, would seem to protect the mortgagor in his right to redeem, when he has it in his power to put the evidence of it. upon record, so that the public may become acquainted with it, but refuses or neglects to do so ; and thus impliedly consents that the mortgagee shall be considered the absolute owner of (he estate. Such conduct may well be held to be equivalent to a subsequent, agreement on the part of the mortgagor, that the mortgagee shall be regarded by third persons as the absolute owner of the estate ; and (hat he is willing to release his right of redemption, in case the mortgagee should make sale of it. Or in the event of such sale being made, may not, the mortgagor, who withholds his deed of defeasance from record, be looked upon as the owner of an estate, who, knowing his right, stands by and witnesses another selling it for a valuable consideration, without making known his right ot objecting to the sale, be considered as bound and concluded by it; inasmuch as it would be against all conscience and every principle of honesty to permit him to assert his right afterwards against a bona fide purchaser of it?
Under this view then, there being no evidence tending to prove that Jaques had notice in fact at the time he bought, he must be deemed a bona fide purchaser of the absolute estate in fee as also of the legal title, and cannot therefore, as the late Mr Justice Duncan says, in Peebles v. Reading, 8 Serg. & Rawle 496, be affected by any latent equity of which he has not had actual notice, or which does not appear on the same deed, necessary to the deduction of his title ; for which he cites 1 Wash. 4.
As the great object of the statute of enrolments was to protect subsequent purchasers and mortgagees for valuable consideration against prior and secret conveyances or incumbrances, it was never held according to the letter of the statute that no interest or estate passed where the deed was not enrolled in conformity to the statute, except as against those who appeared to have had no notice anterior to their buying or taking a mortgage; because if it should appear that they had had such notice in any way, it is evident that the prior conveyance or incumbrance with respect to them could not be considered secret, and therefore, although they came within the letter of the statute, yet they could not be said lo come within the equity or reason of it. And accordingly, in Paul v. Mitchell, Toth. 55, tit.
The same rule of construction and principles of equity have also obtained in regard to the statute of 4 and 5 W. & M., c. 20, sect. 3, which enacts that “no judgment not docketed and entered in the books directed to be provided and kept for that purpose, shall affect any lands or tenements, as to purchasers or mortgagees.” The settled doctrine in equity upon the effect of notice is not considered as altered by this act more than by others; and hence in Thomas v. Pladwell, 2 Eq. Ca. Abr. 599, pl. 25, lord Macclesfield decreed that the purchaser of land with notice of a judgment obtained against the vendor before sale, should pay it, though not docketed and entered till three years after the purchase, because he was concluded by the previous notice of it. So lord Eldon, after great consideration, in Davis v. Strathmore, 16 Ves. 419, held that the purchaser of land was bound by notice of a judgment, thougji not docketed. And he said “he found from some notes, that having formerly consulted lord Thurlow, Mr Maddock and Mr Lloyd upon the point, they all conceived that any notice is sufficient by analogy to the case of the registry act; and lord Redesdale is clearly of the same opinion.” Nor is it necessary that the purchaser should be informed of the precise nature or character of the lien or incumbrance in order to affect him with notice; for in Taylor v, Baker, 5 Price 306; S. C., 2 Cond. Eng. Excheq. Rep. 247; Daniel’s Rep. 71, it was ruled that if a purchaser was informed that there were any pre
Now it cannot be doubted but the same reason which induced the enactment of the statute of enrolments and the registry act of Anne, caused the introduction of the provision already recited in our act of 1715. The great object of it certainly was to protect subsequent purchasers and mortgagees of lands for valuable consideration, from being deceived and injured by prior secret incumbrances, created by mortgages or defeasible deeds. Therefore all such deeds were required to be put on record, so that any one about to purchase an interest in the land, or to take it as a security for the payment of money or other purpose, might, upon recourse to the proper office where such deeds were to be recorded, be informed whether there were any such or not previously given thereon. Deeds founded upon absolute sales of land were never considered as embraced within the provision recited above; Burke v. Allen, 3 Yeates 355; Geiss v. Odenheimer, 4 Yeates 279 ; and most probably the reason was, because a corresponding change of the possession either accompanied or preceded the execution of such deeds of sale, which was not the case in respect to mortgages or defeasible deeds; and therefore it. may have been thought there was not the same occasion for including deeds of absolute conveyance. No provision of the kind was made in regard to them until the act of 1775 was passed, which is very similar in its general bearing, as to deeds, to the registry act of 7 Anne, c. 20. It is therefore fair to presume that the legislature in 1715, or at least the framers of the act of that date, were acquainted with both the terms of, and the construction which had been given to, the statute of enrolments; and having used language nearly of the same import with that of the statute, it is therefore reasonable to conclude that they intended that in its operation and effect it should be the same. This would seem to be the more certain, as well as reasonable, when we consider that the great object to be obtained was the same. Such would also seem to have been the opinion of the supreme court of this state according to the report of the earliest decisions we have on the subject In Levinz «. Will, 1 Dali. 453, a mortgage not recorded within the six months, as required by the act, was held, notwithstanding, to be good against the mortgagor. Chief Justice M’Kean, in delivering the opinion of the court in that case, says, page 456, “that the deed so far is sufficient to pass the lands, and that under it the possession of the premises might have been recovered in an ejectment.” He also in the preceding page declares, that “ the original intent of the makers of this law and their principal reason seem to have been to prevent honest purchasers or mortgagees of real estates from being deceived by prior secret conveyances or incumbrances; and therefore, to prevent this as far as
It may be further observed, that the act of 1775, which declares that “ all deeds and conveyances” made after the passage of the act and not proved and recorded in the proper office within six months after the execution thereof, “shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration,” is a supplement to the act of 1715. But this act of 1775 has been held not to extend to subsequent judgment creditors ; and that a deed of conveyance, though not recorded within the six months, is good against subsequent judgments; Rogers v.Gibson, 4 Yeates 111; Heister v. Fortner, 2 Dim. 40. And the late chief justice, in Geiss v. Odenheimer, 4 Yeates 279, in speaking of the act of 1715 and its supplement of 1775, says, “ the supplement has varied the expressions, but furnishes a strong legislative exposition of the former act.” Yet it would seem as if the legislature of 1783 might have thought that the recording of a mortgage or defeasible deed within six months
Having shown, 1 think most clearly, that an estate passed in the land and became vested in Crocheron under the deed from Knapp to him, notwithstanding the deed of defeasance was not recorded ; and also, that the deed on its face being an absolute conveyance of the land in fee, was to be regarded as such by every one not, having actual notice of the transaction upon which the deed was founded, excepting the parties and their heirs; it is proper to remark, in order to prevent misapprehension, that a third person acquiring a right by purchase under the absolute deed, the defeasible deed not being recorded, Gan only be affected in equity by notice. For at law he must be considered the absolute owner of the estate purchased by him, so far as it shall appear on the face of the absolute deed to have been vested in his vendor by the former owner thereof. This then would make Jaques the owner of the land in fee under the deed of conveyance to him from Crocheron. And the deed from Knapp to Crocheron forming a necessary link in Jaques’s chain of title, must be considered an absolute deed of conveyance, and as such, coming within the provisions of the recording acts ; and the record thereof be looked upon as constructive notice to all the world. The correctness of this proposition may, perhaps, be rendered more strikingly obvious, by supposing that the possession of the land had been vacant at the time Jaques purchased ; and having bought it of Crocheron without actual notice of Knapp’s right to the equity of redemption, he had put his deed from Crocheron immediately upon record : can it be doubted that the record of the deed from Knapp to Crocheron, and the record of the deed again from Crocheron to Jaques, would not have been constructive notice under the provisions of our recording acts to Weeks, as well as every body else, subsequently buying the land either of Knapp, or at sheriff’s sale as his estate, under a judgment obtained against him' after the execution of the deed by Crocheron to Jaques? That it should have this operation is not only consistent with the true spirit and meaning of the recording acts, but necessary, as it appears to me, in order to guard against and to prevent the identical, and even more outrageous frauds from being committed, than those which induced the passage of them. But it is more, it is also consistent with the original agreement and
It has been said before that Knapp had it in his power, whether Crocheron put the absolute deed on record or not, by recording the defeasance, to have protected himself in his right to the equity of redemption to the utmost extent both in law and equity. It is too plain to admit of a question, that if the defeasance had been recorded without the absolute deed’s being so, it would have been constructive notice under our recording acts, even had the land been vacant and unoccupied, to all the world, that the absolute deed was intended to be a mortgage between the parties. If it were to be held otherwise, it is clear that it would be putting it in the power of the grantee to cheat the grantor out of his right of redemption, by selling the land to an innocent stranger for a valuable consideration, without putting his deed on record at all. If it be right and consonant to the letter and spirit of the recording acts, that the recording of the defeasance should operate thus in favour of the grantor, why then, upon principles of reciprocity and equal justice, shall the grantee and his assignees, claiming under the absolute deed, not be protected, by putting it on record, against the grantor’s fraudulently withholding the defeasance from record? There is no reason, and certainly it never could have been intended by the legislature, that the parties should not be placed upon an equal footing with each other in this respect, and prevented, as far as practicable, from defrauding each
But if it be true, as contended on behalf of the defendants, that all subsequent incumbrances or conveyances created, suffered or executed by the grantor on or of the land, shall avail against the grantee, whose deed was made subject to a verbal defeasance, notwithstanding his deed has been recorded in due form, or the party taking the subsequent incumbrance or conveyance may have had previous actual notice of its existence; then it is obvious that, under such a construction of the recording acts, the most barefaced and outrageous acts of fraud will not ouly be committed but encouraged, because thereby they will be protected when committed. The consequences will be the same, also, and no less alarming, though the defeasance be by deed or in writing, but separate from the conveyance; for the grantor, who alone has it in his power to have it recorded, by withholding it from record, may go on to exercise the same power or right of ownership over the land, and those with whom he deals in respect to it may claim the same privileges and benefits therefrom that they would have been entitled to, in case the defeasance had been verbal merely. Suppose, for instance, the owner of an estate were to borrow upon it 10,000 dollars, a sum equal to its worth, and to execute an absolute deed of conveyance to the lender, in order to secure the repayment of the m’oney, accompanied by a verbal agreement of defeasance, or a written one upon a separate paper; and a third person, present as a witness to the whole transaction, in a day or two thereafter, were to purchase the estate of the grantor at 300 or 400 dollars paid in hand, and the grantor, after making a deed of conveyance to this purchaser, were to abscond and quit the country; would not every one in the community join in pronouncing it against all conscience, as well as every principle of common honesty, in the purchaser of the estate, after the money lent upon it had become payable, to attempt to hold the estate from the lender of the money without, paying the amount thereof1? It is plain that it would be a fraud so gross and naked that no person possessed of any one of the common senses could have it presented to him without discovering it. Is it possible, then, that the legislature could ever have intended to encourage and fur
Considering the deed, then, from John H. Knapp to Asbury Crocheron in the light of an absolute conveyance of the land in fee, as between the parties here, and that, at most, it is only in equity, or upon equitable principles, that the defendants can claim to have any interest at all therein; and seeing that the plaintiff has become invested with the legal title to the land, and with a right at law, founded not only upon a prior but much stronger equity than that of the defendants^ if the amount of consideration paid by them respectively is to be regarded as increasing their equities; it follows, then, that the defendants can have no pretence for withholding the possession of the land from the plaintiff without satisfying and pay-, ing him the amount of the money advanced, with interest thereon, by Crocheron to Knapp, or that advanced by himself on the purchase to. Crocheron, if it be greater than the first, together with the costs of' this action.
Judging from the evidence, it would seem probable, if not certain, that the defendants placed themselves in their present situation with their eyes open and a full knowledge of the plaintiff’s claim to the land, and all the circumstances attending it. But be this as it may, since the deed of conveyance from Knapp to Crocheron was put on record, and as Jaques after this bought the fee simple estate in the land from Crocheron for a valuable consideration, without any actual notice of Knapp’s right to redeem, which the latter kept a secret by withholding his deed of defeasance from record, and had his deed of conveyance from Crocheron also recorded long before the judgment was obtained against Knapp under which the sheriff sold the land, and likewise before Weeks bought it of Knapp, that Weeks and Saynisch, and those under whom they claim, were bound to take notice of the plaintiff’s right or title. It being placed on record in the recorder’s office of the proper county was constructive notice to them at least, which is sufficient to prevent their claiming to be purchasers of the land without notice.
The court below therefore erred in directing the jury that the plaintiff’s title being on record was no notice of it in law to the defendants; and likewise, if I apprehend the court rightly, in telling them that no estate or interest passed under the deed of conveyance made by Knapp to Crocheron.
Judgment reversed, and a venire de novo awarded,