78 Va. 8 | Va. | 1883
delivered the opinion of the court.
A deed of conveyance, professedly for the indemnity of creditors, in which the grantor expressly or impliedly re
No provision is contained in the deed giving to the trustees the right to take possession of the property or to exercise control over it, unless default in the payment of the bond at its maturity, three years after the date of the deed, should be made, in which event the trustees, if reqested by the cestui que trust, are required to publicly sell the property in the manner and upon the terms prescribed in the deed. After the execution of the deed, the grantor remained in possession of the property and continued to sell the stock in the line of his business until his sale to P. H. Bonley, eight months after the date of the deed. That the power thus impliedly reserved and freely exercised was adequate to the destruction of the avowed object of the deed, and that the deed is therefore void as against the purchaser, F. H. Bonley, and his creditors, who claim the right to subject the property to the payment of their debts, there can be no doubt. And the deed being
The remaining question to be determined is raised by the appellees, who insist that as between the, McCormick and the Atkinson trust deeds the latter is entitled to priority. By the former deed George Bonley and wife conveyed all their interest in the stock and fixtures already referred to. By the latter George Bonley had previously conveyed the same property to secure the payment of certain debts therein mentioned. The appellees insist that a deed purporting simply to convey the vendor’s right, title and interest in certain property will not defeat an unregistered mortgage upon the same property.
It is plain that the intention of the parties was to convey, and that the language employed in the McCormick deed is appropriate to convey, the property in question, and that the same was conveyed absolutely, unless the deed was made in subordination to the Atkinson deed. But as that deed was not recorded until after the execution of the McCormick deed, and as the testimony fails to show that either the trustees or the cestui que trust in the latter deed had notice of its existence, it must be postponed to the latter deed. The language of the statute is that every such unrecorded deed shall be void as to creditors and subsequent purchasers for valuable consideration without notice; and in that category are embraced “ all creditors and purchasers who, but for the deed or writing, would have had title to the property conveyed, or a right to subject it to their debts.” Code, 1873, ch. 114, §§ 5, 11. The circuit court, therefore, properly postponed the Atkinson to the McCormick deed, and its decree must be affirmed.
Decree affirmed.