72 Tenn. 432 | Tenn. | 1880
delivered the opinion of the Court.
This bill, filed August 29th, 1872, raised a question of priority between a claimant under an unregistered deed of conveyance of land and the trustee and beneficiaries under an assignment, duly registered, of the same land, to secure pre-existing debts. The Chancellor rendered a decree in favor of the former and the latter appealed.
R. B. McGee and W. C. McGee were tenants
The bill is.filed against J. P. & R. B. and ~W. C. McGee, L. P. McMurry and the beneficiaries in the trust assignment, to foreclose the vendor’s lien retained for the payment of the' notes held by complainants as above, and to set up, as against the trustee and beneficiaries, an alleged deed of conveyance of the land by R.. B. McGee to J. P. McGee, made prior to the trust assignment, never registered, and alleged to have been lost. The McGees offered no ■ resistance to the relief sought.
The.. Code, sec. 2030, enumerates the instruments which may be registered, and includes in the enumeration all deeds for the absolute conveyance of land, and all mortgages and deeds of trusts of either real or personal property. By the Code, so.>. 2074, it is provided:. “Any of said instruments first registered or noted for registration shall have preference over one of earlier date, but noted for registration afterwards, unless it is proved in a court of equity, according to the rules of said court, that the party claiming under the subsequent instrument had full notice of the previous instrument.” These provisions, as well as the next succeeding section of the Code are taken from the Act of .1831, chap. 90. And it has always been held that a mortgage or trust assignment for the benefit of pre-existing creditors . 'falls within the provision, and, if first registered, will have preference over any of the enumerated instruments of earlier date not registered, unless the persons claiming under it had full notice of the unregistered instrument: Myers v. Ross, 3, Head, 60; Knowles v. Masterson, 3 Hum., 619. In the last of these cases, though the first in order of time; Judge Reese uses the word mortgage, although two of the instruments mentioned' were trust assignments for creditors. “ Mortgagees,” he says, “ are, in general, purchasers, and they are so within the words and meaning of the Act. .The same prin
In Myers v. Ross, th,e contest was between claimants under trust assignments, the first assignment in point of time, though the last registered, being apparently to secure a pre-existing debt, while the other, whose priority, by reason of registration, was postponed on account of notice, was intended-to secure advances made at the time, as well as-pre-existing debts. It was distinctly held that the provisions of the Act applied to deeds .of trust.
In the case before us, it is neither alleged in the bill, nor is there any proof to show that the trustee or beneficiaries under the trust assignment had notice of the unregistered deed before, they had accepted the benefits of the trust; and the bill was not filed until after the acceptance. If, therefore, the existence of the unregistered deed be conceded, the trustee and beneficiaries, without notice thereof, have, by the very terms of the statute, the better right to the disputed moiety of. the land.
The Chancellor seems to have thought that the preference given by the Code to the instrument
Independent of statute, the general rule is that where . the equities of conflicting parties are equal, whoever has the legal title shall keep it. The only doubt in the authorities was as to how far chancery would interfere to assort the prior equity against the legal title acquired under the junior equity with ■ notice: 2 Lead. Oa. in Eq., notes to Basset v. Nosworthy. In all such cases', the assig-
It has always been so held in this State, when it could be done consistently with the positive provisions or the • policy of the registration laws. It was so held in the case of a constructive trust, treated- as- a resulting trust, arising from the use by a guardian of a ward’s funds in the purchase of lands: Turner v. Petigrew, 6 Hum., 438. So in the case of the equity of a vendee of land by parol to be repaid the purchase money or the value of improvements, upon recission: Rhea v. Allison, 3 Head, 177. So in the case of a vendor’s equity for unpaid purchase money after he has parted with the title: Brown v. Vanlier 7 Hum., 238. So in the case of a contract for a mortgage unregistered, if the Court intended to go to that extent, in Cook v. Cook, 3 Head, 719. The policy of the registration laws was allowed to overrule the doctrine of Brown v. Vanlier, even where the assignee, under the trust assignment, had full notice of the vendor’s equity: Fain v. Inman, 6 Heis., 5; and Cook v. Cook, if intended to give a preference to an unregistered contract over a registered trust assignment for creditors, accepted by the assignee without notice of the trust, must be also overruled, because in conflict with the positive provision of the registration law. Eor all agreements for the conveyance of real estate are required to be registered by the Code, sec. 2030,
A creditor who takes a conveyance to secure his debt is not such a volunteer, under the registration law as construed by this Court.
The decree of the Chancellor must be reversed, and a decree rendered here in accordance with this opinion.