18 Fla. 688 | Fla. | 1882
delivered the opinion of the court.
In January, 1880, Middleton was the owner of' a 'lot in Waldo, Alachua county, his title deed being upon record. On the 22d January Middleton sold and conveyed the lot to W. T. Craig by deed duly executed, but the deed was not recorded until the 24th June, 1880. On the Bd'of May, 1880, appellees recovered judgments against Middleton in the Circuit Court for Alachua county, upon which judgments executions were issued and levied-upon the lot as the property of Middleton, and on the 5th July it was sold by the sheriff and deed executed- to the' plaintiffs in execution. At the time of the purchase by Craig from Middleton in January he took actual possession, and has had actual possession and occupied the property until this suit was brought in ejectment by the purchasers at the sheriff’s sale.
The cause was tried before a referee upon the foregoing agreed state of facts, and judgment was rendered in favor of plaintiffs against appellants.
The ruling of the referee that the lien of the judgment attached to the property as against the prior unrecorded deed, and the denial of a motion for a new trial, are assigned for error.
The statute says that every judgment shall create a lien and be binding upon the real estate of the defendant. Act February 12, 1824.
It was held in Holland vs. The State, 15 Fla., 455, 519, that a purchaser at an execution sale takes only the- right,
; -There is no, pretence here that the sale of Middleton to Craig and the execution of the deed - were fraudulent, and it appears that Craig went, into immediate actual possession under his deed long before the recovery of the judgment, and stiff is in possession. When the judgment was recovered, Middleton had no title .or interest in the lot.
Counsel for defendant in error refer to section 4, act of November 16, 1828, (McClellan’s Digest, 215,) as follows: “No conveyance, transfer or mortgage of real property, or of any interest therein, shall be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration a,nd without notice, unless the same-shall be recorded,” &c.
There has been a vast amount of judicial discussion in the various States upon the question arising under the statutes whether creditors and subsequent purchasers stand upon .similar ground as respects grantees and mortgagees whose .deeds have not been recorded. In Tennessee, (Mart. & Yerger, 385,) Georgia, (25 Ga., 687; 13 Ga., 443,) Virginia, (4 Rand., 208,) North Carolina, (1 Dev. Eq., 470,) and in some other States it has been held that a creditor who obtains a lien by judgment .or by attachment is not affected by notice, actual or constructive, received before or after the lien attached, of a prior unrecorded deed or mortgage. The whole question depends upon the terms of the statutes of the several States. In Tennessee, for instance, by an act of 1819
, The-statute of New Jersey enacts that “every deed or .conveyance of or for any lands, to any purchaser of the same, shall.be void and of no effect against a subsequent judgment creditor or a bona fide purchaser or mortgagee for a valuable consideration, not having notice thereof, unless such deed or conveyance shall be acknowledged or proved and recorded within fifteen days.” (Stat. of N. J., 1847, 643, §18.) In the construction of this .statute it was held that the want of notice is as essential to the protection of a judgment creditor as of a purchaser or mortgagee, and such, it may be fairly presumed, was the intention of the Legislature ; ’ otherwise persons with a full knowledge of an honest transfer of real estate might trust the grantor, and then, obtaining judgment, defeat the bona fide purchaser, who, from ignorance or negligence, had omitted to have his conveyance recorded. (Garwood, vs. Garwood, 4 Halst., 193.) The. statute of- New Jersey, it will be observed, is substantially like our own.
It is held in Massachusetts,'under the recording act, that a creditor knowing of a conveyance of land made' by his debtor for a valuable consideration, which is not registered, cannot, by an attachment and levy upon the land, obtain a title against the grantee. The case of a second purchaser and of an attaching creditor are. considered the same with respect to the effect of notice. (4 Mass., 641; 6 Mass., 487; 10 Mass., 60.) In Priest vs. Rice, 1 Pick., 164, Parker, C. J., says that “ the reason is the same in both cases, for iff a creditor, whose debt is due, will stand by and suffer- Lis debtor to sell his land and receive the value of it from one who knows not of his claim or of his intention to bring an action upon it, and will afterwards attach the same land, there is a constructive fraud upon the purchaser which ought not to prejudice his title. The execution and delivery of the deed completes the transfer from the grantor to the grantee ; the registry is to give notice that others may not be prejudiced. Actual notice proved is, to the person affected by it, as useful and ought to be attended with the same consequences as public notice in the registry; an implied notice arising from possession under the deed is as effectual as actual notice.” We refer, for a collection .of the American authorities upon the whole subject, to leading cases in equity by White and Tudor, Am. Ed., 1877, Vol. 2, pt. 1, pp. 93, 99, notes to Bassett vs. Nosworthy; 16 Fla., 781.
As before remarked, there is no ehárge of fraud and-no attempt to show that the conveyance was not in good faith. The case stands upon the effect of the statute alone. '
Craig immediately went into actual possession after his purchase, and has remained in the occupancy of the premises. This is constructive notice of ownership or of an .interest, and the. recording of a deed is but constructive notice. Any like notice is sufficient ,ta put creditors and purchasers on inquiry. 64 N. Y., 76; 3 Kern., 180; 2 Barb. Ch., 555; 2 Paige, 300; 2 Mass., 508; 4 N. H., 262; 6 Wend., 213; 54 N,,Y., 640; 1 Pick., 164; 9 Ala., 208, 443.
The judgment is reversed and a new trial awarded.