1 Free. Ch. 85 | Miss. Chanc. Ct. | 1844
This case was submitted at a former day, upon motion to dissolve the injunction therein, on-bill and answer. The whole merits of the case arise upon the motion. The only allegations of the bill which I deem it material to notice, are those which state that the complainant became the accommodation indorser for Puckett and Fall, on a note which they gave for the purchase of a lot in the town of Madisonville, the title to which was derived indirectly through John S Gooch; that Gooch, in May, 1836, sold and conveyed to Walker and Williams; they sold and conveyed to Josiah Borrough; he sold to Enloe Johnson & Co., and they sold to Puckett and Fall. That the deed from Gooch to Walker and Williams, although placed upon record, was not acknowledged and certified in the manner prescribed by law, and was not. therefore notice to creditors or purchasers. That C. Marsh & Co., having subsequently obtained a judgment against Gooch, caused an execution thereon to be levied on said town lot, under which the same was sold. This sale, it is alleged, divested the title of Puckett and Fall, and consequently produced a failure of the consideration of their note indorsed by the complainant. That suit
The answer of the defendants denies that the complainant had not notice of their suit, and say that the officer’s return shows service of process, which they state was actually made, as they will be able to show. They state that the judgment under which the lot was sold, had, they believe, been satisfied, and that the complainant knew it. That he was active in effecting the sale, and bought the lot for a trifle. That Puckett and others had, and continued to have the undisturbed occupancy of the lot in question.
The allegation that the complainant had no notice of the pen-dency of the suit at law, not being disproved by the answer, is, I think, sufficient to entitle him to come to this court for relief, provided he shows that he has a substantial and meritorious defence against the judgment at law. This must depend upon the fact whether the creditors of Gooch, under whose judgment the town lot was sold, had actual or constructive notice of the prior conveyance made by him to Williams ánd Walker, and upon the effect of that notice. The certificate indorsed upon the deed simply states that it was “acknowledged” by Gooch before a justice of the peace, who signs the same. This falls far short of complying with the requirements of the statute upon that subject, which provides that the judge or justice taking the acknowledgement shall certify that the grantor acknowledged that he signed, sealed, and delivered the same, on the day therein mentioned, as his act and deed, and that no deed shall be recorded unless acknowledged and certified in the manner directed by the act. Howard and Hutch. Dig. 344, sec. 7.
It is manifest that the deed was not “so acknowledged, and certified" as to admit to record within the act referred to. The fact, therefore, that it was admitted to record avails nothing, in legal contemplation, in the way of communicating notice. I say, in
But it is said that the existence of a deed can only be made known through registration by complying .with the prescribed forms o'f the law. And it, perhaps, ill becomes' me to question the policy of a rule which has received the sanction of some of the ablest jurists of the United States. The rule would seem how to be settled, that a deed unduly registered either from the want of a valid acknowledgment or otherwise, is not notice. Carter v. Champion et al., 3 Conn. Rep. 549; Hester v. Fortner, 2 Binn. Rep. 40; 3 Cranch, 140; 1 John. Ch. Rep. 300.
The deed, in this case, from Gooch to Williams and Walker must be considered as an unregistered deed. It becomes important next to inquire what effect notice to a creditor of an unregistered deed has upon his rights, and what is evidence of such notice. These are important questions, and I regret that the statute upon which they depend has, so far as I know, received no judicial construction at the hands of the High Court of Errors. That statute provides, “That all sales and conveyances of land
The truth of the position is shown by repeated decisions that the registration of a deed, conveying a mere equitable title, is not notice to subsequent purchasers, not being the kind of conveyance referred to by the Statute of Registration. Halsted v. Bank of Kentucky, 4 J. J. Marsh. Rep. 558; Frost v. Beckman, 1 J. Ch. R. 300. The Statute of Registration of the 7th of Anne, ch. 20, is much stronger than ours, as it makes all unrecorded
The possession of land by the vendee under an unregistered deed, is such evidence of title as amounts to constructive or implied notice to creditors or subsequent purchasers; 3 Mass. Rep. 575; Priest v. Rice, 1 Pick. Rep. 164; Tuite v. Jackson, 6 Wend. 213, and authorities there cited. So in Colly v. Kenniston, 4 New Hamp. Rep. 262. While the purchaser under an unregistered deed was in open and visible possession, it was held sufficient notice to protect him against a subsequent purchaser, and to charge the latter with a knowledge of his rights. In Norcross v. Wedgery, 2 Mass Rep. 500, Chief Justice Parsons says — “This notice may be express, or it may be implied, from the first purchaser being in the open and exclusive possession of the estate under his deed.” The English Courts have held similar language in reference to the question of notice under their registry acts; Sheldon v. Cox, 2 Eden’s Rep. 228. The only object of the statute of Registration is, to supply the place of the ancient ceremonial of livery of seisin, or in other words, to give notice to all who may become interested, of the change of ownership and title to the estate conveyed. And whenever the notice is actually or impliedly communicated, although through other mediums, the whole object and purpose of the statute is as fully attained as if the notice had been derived from actual inspection of the public Records. The plain object of the statute is to secure creditors and subsequent purchasers against
The injunction must accordingly be dissolved.