Martin v. Nash

| Miss. | Apr 15, 1856

Handy, J.,

delivered the opinion of the court.

The material facts of this case appear to' ontneRy December, 1885, Orsamus L. Nash, entere® theN^J^J^ij^ versy at the United States Land Office, at Crabmfous, m this .§j#te, and in the year 1837, he made an assignment or^tfi&^^Sficate at the Land Office, to Ezekiel Nash, and by written transfer and delivery of the original certificate, under his hand and seal, to Ezekiel Nash, who afterwards conveyed the land to Stephen E. Nash. The certificate and assignment were not registered in the Probate Clerk’s Office of the county, where the land lies; and in March, 1838, a judgment was rendered against Orsamus L. Nash, upon a money demand, and under an execution issued thereon, the land was sold on the 17th December, 1840, and purchased by Huntington, who conveyed it to the complainant. The bill alleges that neither the parties interested in the judgment, nor Huntington, nor the complainant, had notice either actual or constructive, of the assignment of the certificate to Ezekiel Nash.

A patent from the United States for the land, was issued to Ezekiel Nash, on the 27th February, 1841, and an action of ejectment having been brought by Stephen E. Nash, to whom he conveyed the land, this bill was filed to enjoin proceedings in that action, and praying that Stephen E. Nash be decreed to convey the land to the complainant, and be enjoined from setting up any title to the land, founded on the deed to him from Ezekiel Nash.

The defendant demurred to this bill, which being sustained, the ease is brought here.

It is insisted, on behalf of the plaintiff in error, that as the execution sale under which he claims title, was made before notice of the assignment of the certificate by Orsamus L. Nash, and without any registry of it, so as to give notice in law to a purchaser, the assignment must be considered as a secret equity, against which the plaintiff in error, in right of the purchaser under the execution, is entitled to protection as a bona fide purchaser. And this appears to be the equity on which the bill is based.

The statute, recognizing the right to make such certificates, plainly intended to give to the party in whose name it was issued, or to the holder of the certificate by assignment, a complete legal title to the land. Lindsay v. Henderson, 27 Miss. 502" court="Miss." date_filed="1854-10-15" href="https://app.midpage.ai/document/lindsey-v-henderson-8256707?utm_source=webapp" opinion_id="8256707">27 Miss. 502. This provision of law appears to have no reference to the registry acts; and, indeed, it appears to have been contemplated, that the formalities requisite in admitting deeds of conveyance to record should be dispensed with, and that the mere possession of the certificate by the original party, or by another person, who was the holder of it by assignment, should be sufficient evidence of legal title. And this view seems to be fully held by the Supreme Court of Alabama, upon a statute of that State in the same terms as our own. Falkner v. Jones, 12 Alabama, 159.

We have no statute admitting such assigned certificates to registration ; and if such a document as that under consideration had been spread upon the registry books, it would not have been notice to a subsequent purchaser.

But what prejudice could arise to the purchaser at execution sale, from the want of registry of the assignment of the certificate ? The certificate is not required to be registered among the land records of the county; and when the purchaser at sheriff’s sale was about to purchase the land, he would be able to find nothing in these records touching the title. What then must he do ? In order to claim protection as a bona fide purchaser, he would not be justified in acting upon the vague supposition that the land was the property of the defendant. He would be driven to the United •States Land Office, in order to ascertain whether the defendant .had any title or not. It is to be presumed that be used such diligence, and if he did, he there found that the land had been transferred to Ezekiel Nash. Either, therefore, he was guilty of laches, in not investigating whether the defendant in execution had any title to the land which he was about to purchase, at the only place where proper information upon the subject could be obtained, or, if he did make the examination he was thereby led to a notice of the assignment; because the bill admits that the assignment was made in that office.

It will not do for the purchaser to say that he had not notice of the assignment, or of any fact which would lead to a knowledge of it. For the rule is, that when a party cannot make out title but by a deed, which leads him to another fact, he shall be presumed to have notice of that fact. 2 Eonb. Eq. book 3, ch. 3, § 1, note (5). This principle applies as fully to this case, when the title could only be made out by reference to ■ the Land Office books, where the entry was shown, and with it the assignment, as to a deed showing a fact material to the title about to be acquired.

Under this view of the case, the decree of the Court below is correct, and should be affirmed, and it is ordered accordingly.

A re-argument was applied for, but refused.