13 Gratt. 615 | Va. | 1857
Two questions occur in this case first, whether Mrs. Byrd under the deed and contract of the 29th of June 1828 has any lien express or implied, upon the estate of Coke, or any portion of it, for the amount of the annuity secured to her by that contract; second, as to the effect of the failure to record the deed of trust of the 21st of June 1848 until after the death of Coke, the grantor, upon the lien thereby created as against the general creditors of Coke. Of these in the order stated.
There is no just foundation for any claim to an express charge. There is a reservation of what is termed “ a mortgage or lien” upon the land conveyed in favor of Rebecca Innis for five hundred pounds, but nothing said of a lien for the annuity. The only terms in the deed which can furnish any semblance of a charge are those in which it is covenanted that in the event of Coke’s death, his estate should pay Mrs. Byrd three hundred dollars during her life for her board &c. Such terms or terms of similar import, mutatis mutandis, might in a will in favor of securing payment of just debts, perhaps, be held to constitute a charge, but in a contract of this character they cannot have this effect. They are but the words of a party intending to create a debt to be paid after his death in the form of an annuity for life to the other in the event she survived him. It was of course to be paid out of his estate as any other mere personal liability ; but it will
The doctrine in regard to this lien although of comparatively modern origin, may now be regarded as well established in the English chancery; and although it has been adopted in several of the states in this country, as also in the circuit courts and Supreme court of the United States, yet in others of the states it has been questioned and unsettled or wholly repudiated. In Pennsylvania it has no existence; Kauffelt v. Bower, 7 Serg. & Rawle 64, 74: So in North Carolina; Womble v. Battle, 3 Ired. Eq. R. 182 : So in South Carolina; Wragg's representatives v. The Comptroller General and others, 2 Dessaus. R. 509: so in Maine; Philbrook v. Delano, 29 Maine R. 410; and in Massachusetts, per Story, J: in Gilman v. Brown, 1 Mason’s R. 191. In Delaware and Connecticut, the doctrine is questioned and unsettled. Budd v. Busti, &c. 1 Harring. R. 69; Atwood v. Vincent, 17 Conn. R. 575. In Virginia the doctrine has been admitted and such a lien asserted against the vendee or purchaser with notice from him. Cole v. Scot, 2 Wash. 141; Graves v. McCall, 1 Call 414; Duval v. Bibb, 4 Hen. & Munf.
But although thus recognized in Virginia the doctrine has not been favored. On the contrary it has been denounced as violative of the policy of our law which seeks as far as possible to discourage secret liens and require all to be made matters of record; and a settled disposition has been manifested to extend the doctrine no farther than it has already been carried. See the remarks of Judge Carr in Moore v. Holcombe, 3 Leigh 597, 600, 601; quoting with approbation those of Chief Justice Marshall in Bayley v. Greenleaf, 7 Wheat. R. 46, 51; and those of Judge Tucker in Brawley v. Catron, 8 Leigh 522, 527. That such a doctrine is inappropriate in a state in which every debt may be at once made a lien by a judgment and in which the real estate of a decedent is made assets for the payment of his debts cannot well be denied; and the legislature of this state very clearly evinced the opinion which it entertained upon this point when at the recent revisal it adopted the policy of those states in which this lien had been repudiated by abolishing it formally by statutory enactment. Code of Virginia, ch. 119, § 1, p. 510.
From the English cases it would seem to be deduced that in general this lien is presumed to exist and that it will follow the subject into the hands of a purchaser with notice from the vendee. Hughes v. Kearney, 1 Sch. & Lef. 132; Mackreth v. Symmons, 15 Ves. R. 329, and the cases cited and reviewed by Lord Eldon; Saunders v. Leslie, 2 Ball & Beat. 509; Winter v. Anson, 3 Russ. 488, (3 Cond. Eng. Ch. R. 495;) Grant v. Mills, 2 Ves. & Beame 306. Nor will the mere taking of a note or covenant for the payment of the purchase money suffice to extinguish the lien. Gibbons v. Baddall, 2 Equ. Cas. Abr. 682, n. (b.); ex parte Peake, 1 Madd. R. 344; Cary’s Ch. R. 25, cited
But in every case whether of an entire gross sum or a sum payable in installments or in the form of an
This case is cited as authority and with apparent approbation by Tucker, P. in Brawley v. Catron, 8 Leigh 522, 530; aud although the vice chancellor said that he considered it decided by the case of Winter v. Lord Anson, 1 Sim. & Stu. 434, (1 Cond. Eng. Ch. R. 221), in apparent ignorance of the fact that the opinion of Sir J. Leach in that case had been overruled by Lord Chancellor Lyndhurst (3 Russ. R. 488, 3 Cond. Eng. Ch. R. 495), yet its weight as authority is not on that account lessened: because the difference between Sir J. Leach and Lord Lyndhurst was not in the principle
The principle of the case of Clarke v. Royle was applied in the case of Parrott v. Sweetland, 3 Mylne & Keene 655, (10 Cond. Eng. Ch. R. 348.) There a receipt was endorsed on the conveyance for the bond of the vendee conditioned for the payment of three thousand pounds to one Orlebar with whom the vendor was about to be united in marriage, and expressed to be the full consideration to be given by the vendee. Sir John Leach, master of the rolls, held that it was a case of substitution for the price and not security, and pronounced against the heir. The cause was reheard before the V. C., Sir L. Shadwell and Mr. Justice Bosanquet, sitting as lords commissioners, and the decree of the master of the rolls was affirmed. So in Buckland v. Pocknell, 13 Sim. R. 406, (36 Eng. Ch. R. 406,) which was the case of a conveyance in consideration of certain annuities granted by the vendee and which he covenanted to pay, the vendee also being bound to pay off a mortgage debt to which the estate was subject: held by Sir L. Shadwell, V. C. referring to Parrott v. Sweetland, that there was no lien for the annuity. And the same principle may be traced in other cases.
How the case before us seems plainly to fall within the class of which Clarke v. Royle is the leading case. It differs from that case in no material particular. Here the consideration of the conveyance is the sum of five thousand three hundred and sixty-five dollars, and the covenants of Coke to maintain Mrs. Byrd during her life, for the payment of the annuity, in case she should survive him, of three hundred dollars if she chose to board out of his family, or if she should continue in his family after his death, of one hundred and
If we look still further and more closely into the instruments executed by these parties to deduce from them what their meaning must have been, according to the principle laid down by Lord Lyndhurst in Winter v. Lord Anson and to the view of Judge Story in Gilman v. Brown, we must be brought to the same conclusion. Here is a conveyance by the grantor of her whole interest in a large plantation with all the live stock of every kind upon it, and all the farming implements used in its cultivation, the crops on hand and those then growing, the household and kitchen furniture at the mansion-house, just as it stood and a carriage and harness : also all the grantor’s interest in the slaves of her husband, and her interest in the estate real and personal, as heir and distributee of three of her daughters who had died after their father: also fourteen slaves which were the separate property of the grantor. All this property is conveyed to the grantee forever free and quit of any claim of the grantor and with covenants to assure full and perfect title, unencumbered, against the grantor and her heirs forever subject only to a mortgage on the land in favor of one Rebecca Innis for the sum of five hundred pounds, to the interest upon which during her lifetime the grantor was entitled under the will of R. Innis, but her claim to which she renounced in favor of the grantee, by a covenant in the deed. The considerations of this conveyance have been already stated.
Such a contract would seem to repel the idea of
Upon the whole, I feel no doubt that Mrs. Byrd was content with the personal security of Coke and that at the time of executing the instrument, neither partjr contemplated or thought of a lien. And to set it up here would be to carry the doctrine further than it has ever yet gone, which in view of the expressions of eminent judges against the policy of such a lien and the marked sense of the legislature in its total abolition by statutory enactment, I certainly am not prepared to do.
We come next to the effect of the failure to record the deed of trust until after the death of Coke.
That such a deed though unrecorded is yet good and valid as between the parties is clear from the terms of the law which have no application to such a case and was decided at an early day under a former registry law. Turner v. Stip, 1 Wash. 319; Currie v. Donald, 2 Wash. 58. A general creditor therefore coming in the lifetime of the mortgagor can assert no claim to satisfaction of his debt out of the mortgaged subject to the prejudice of the mortgagee. But it is argued that upon the death of the mortgagor in this case, the general creditors acquired such rights under the provisions of the statute making the real estate of a decedent liable to his debts or under the charge in the will of Coke for payment of his debts, as entitles them to displace the mortgagee and deprive him of the benefit of the lien for which he had contracted.
The first enquiry then is what is the interest which is thus made liable by the statute to the debts of a decedent ?
The act provides that all real estate of any person who might thereafter die as to which he might die intestate or which though he die testate shall not
That the general creditors take only the estate of the debtor and in the plight and condition in which he left it, is deducible from the general tenor of the act and also from the terms of the seventh section which expressly declares that the provisions of that chapter should not affect any lien by judgment or
If therefore Coke had died intestate, it is difficult to perceive on what grounds the general creditors coming in after his death under the statute could be entitled to displace the creditors claiming under the deed of trust of the 21st of June 1848 or to subject to their debts any thing beyond the equity of redemption. The mortgage being good against the grantor and his heirs, nothing , could descend to the heir but the equity of redemption; and if he and the mortgagee were to unite in a sale of the mortgaged premises, the creditors could not make him liable at law beyond the value of such equitable interest. The act makes him answerable for the value of the assets descended, but no more, and all that descended was the mei'e equity of redemption. And equity certainly would not carry the liability further. The case of a fraudulent conveyance will not illustrate the question here. It may be true that in that case, the descent would not be broken and the whole property would be liable. For when the deed is adjudged void for
But the claim of the creditors in this case does not rest upon the right given by statute to subject the real estate of a decedent to the payment of his debts. Coke by his will which was made on the 30th of December 1849 charged his whole estate with the payment of all his debts; and it was not therefore within the terms of the third section of chapter 131, subjecting real estate to the payment of the decedent’s debts. For that section is expressly confined to the real estate as to which the party died intestate or which though he may have left a will, shall not have been charged by the will or devised subject to the payment of debts, or if so charged or devised, to what might remain after satisfaction of the debts so provided for. The devise then being for payment of debts was clearly good under the act in force at the date of the will;
The statute of wills authorizes every person to dispose by will of any estate to which he shall be entitled at his death and which if not so disposed of would devolve upon his heir &c. Code of Virginia, ch. 122, § 2, p. 516 ; and if there were no further provision on the subject, the effect of this would be to enable the devisee to take the land devised discharged from any liability to the general creditors of the testator. Hence the statute in England upon the subject of fraudulent devises and the similar provisions of our Code. But to what estate shall it be said a party was entitled at his death and what shall devolve upon his heir if not disposed of by will? Certainly not lands which the testator had conveyed to another by deed binding upon him and his heirs, in his lifetime;
In this case, Coke’s will was made before the present Code took effect, and the case therefore falls within the influence of that of 1819, Code of Va. ch. 122, § 22. By the Code of 1819 whilst it avoided fraudulent devises, devises for payment of debts were expressly saved: and the creditors here must claim as devisees whose rights are protected by the fourth section of the act of December 18, 1789 (1 R. C. 1819, p. 392). So claiming, they can only take what Coke could devise, and this is the equity of redemption in the subject covered by the deed of trust. What they must claim is an equitable interest only and the relief they must seek is through the administration of equitable assets. Black v. Scott, 2 Brock. R. 325 ; 1 Sto. Eq. Jur. § 550, 552, 553; Miller Eq. Mort. 126, (42 Law Lib. [126]; Newton v. Bennett, 1 Bro. C. C. 135; Silk v. Prime, Ibid. 138, n; Baily v. Ekins, 7 Ves. R. 319; Rutger's ex'ors v. Leroy, 4 John. Ch. R. 651; Nimmo's ex'or v. Commonwealth, 4 Hen. & Munf. 57. And this being the footing on which they must stand,
From what has been said it may be deduced that after the death of a mortgagor it is not necessary to record the mortgage to protect the lien against general creditors. In this case in point of fact the deed of trust was recorded after the death of Coke, and there is nothing in the language of the act prohibiting the recording of a deed after the death of the grantor or restricting the right to'record to the lifetime of the grantor. When the execution of the deed is authenticated in the manner required by the law it is the duty of the court or clerk to admit it to record without enquiry whether the grantor be in life or otherwise. Nor is any good reason perceived why such recording will not suffice to bring the case within the terms of the law, and render the deed good against creditors from that time. And it may be urged that as the creditors had acquired no specific lien by judgment or otherwise in the lifetime of the grantor and as they took none either under the devise in the will or the act rendering real estate assets for payment of debts, they could not successfully assail the lien secured by the deed of trust. I do not dwell upon this view however because as I think the creditors acquired nothing in the nature of a specific lien either under the will of Coke or the statute making real estate assets, and as after Coke’s death they could acquire no lien upon his real estate, I conceive that recording the deed of trust after his death was wholly unnecessary as to them.
It remains to consider in this connection, the effect
I think the Circuit court erred in its opinion upon
Allen, P. and Moncure, J. concurred in the opinion of Lee, J.
Daniel and Samuels, Js. concurred in Judge Lee’s opinion as to Mrs. Byrd’s heirs; but they dissented as to the validity of the deed of trust.
Decree reversed.