Jackson ex dem. Loop v. Harrington — 6 Cow. 135

Majority

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Jackson, ex dem. Loop and others, against Harrington.^[1]

UTICA,

Aug. 1826.

Headnote

Ejectment for part of military lot No. 43, in Sempro-nius, in the county of Cayuga, tried at the circuit in that county, September 8th, 1824, before Tiiroop, C. Judge,

At the trial, the plaintiff proved the patent of the lot to Schreider the soldier, dated July 8th, 1790 ; and a convey-anee of all his expected military bounty land lrom him to

Where two fences6 °° of military lots 6 patentee before the uary 8ih, 1794, (1R. L. 209,) neither of which were deposited in the clerk’s office of Albany, pursuant to that act; held, that the deed last executed took preference.

Held also, that a conveyance by the patentee for a valuable consideration, subsequent to the second, should take preference of that; but, it appearing that it was executed pending an ejectment by those claiming under the second conveyance, to a grantee who had notice of that conveyance, and actual knowledge of the first; held, that it lay with the defendant to show, otherwise than by the last conveyance, that a valuable consideration was in fact paid.

"Whether a subsequent conveyance for valuable consideration, with notice of a prior deed, comes within the protection of the statute, (l R. L. 209.) or it must be bonajidz in the full cense of the terms ? Qucre.

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C. Loop, the deceased father of the lessors of the plaintiff; and under whom they claimed as heirs, dated in the spring or summer of 1784. It appeared that this deed was i°sE or destroyed by accident, in 1796 or ’7 ; and was, therefore, never delivered to, or deposited with the clerk of the city and county of Albany, according; to the statute, (1 R. L. 209.)

The defendant produced and proved a conveyance from Schreider to F. Carbine, now deceased, dated August 1th, 1783, of all his (S’s) expected military bounty lands. This conveyance had never been filed according to the statute-but was recorded in the clerk’s office in the county of Cayuga, September 1th, 1824. It was proved that the defendant held as a tenant under the Carbine title.

This suit was commenced in May term, 1823; and it farther appeared at the trial, that after it was so commenced, Schreider, the soldier, conveyed the whole lot to E. Z. Carbine, a grand-child of F. Carbine, and one of the heirs of the old title to F. Carbine. This deed was dated September 29, 1823 ; and purported to be for the consideration of $3000; and was acknowledged and recorded on the 9th day of October, 1823. E. Z. Carbine made this purchase with notice of the claim by the lessors of the plaintiff, and of the title under which they claimed.

Verdict for the defendant, with leave to move for a new trial.

J. A. Collier, for tire plaintiff.

Neither conveyance having been deposited, the question is, which shall be preferred. The act, (1 R. L. 209,) does not declare that a deed not deposited shall be deemed void, except as to subsequent purchasers. The act means the last purchaser prior to the 8th of January, 1794.

If there be several conveyances, and none filed, the last is to be preferred. Jackson v. Hubbard, (1 Caines, 82,) amounts to this. Though the subsequent deed was recorded in that case, such a circumstance can make no difference. It was good without being filed or recorded, as to all former deeds not filed. ( 19 John. 281 .)

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E. Z. Carbine was n-ot a bona fide purchaser ; but took with full notice. Beside, the conveyance was for land in suit, and the sale therefore void.

D. Kellogg, contra.

Neither deed being filed, the question remains as at common law ; and the Carbine deed being oldest, takes preference.

It is no objection to the deed of September, 1823, that the grantee, E. Z. Carbine, had notice. The object of the statute in question is more than the common registry acts. The deeds are required to be deposited ; in order to enable subsequent grantees to detect forgeries. If such grantees have paid a valuable consideration, it is enough, whether they have notice or not. And so are the words of the act.

Curia, per

Were this question to be determined by the common law, undoubtedly the first deed would be operative, and the second void. But the legislature on the 8th oí January, 1794, (1 R. L. 209,) passed “ an act for registering deeds and conveyances relating to the military bounty lands reciting that many frauds had been committed respecting the titles to those lands, by forging and antedating conveyances ; and by conveying to different persons, and by various other contrivances, so that it had become very difficult to discover in whom the legal title to some of the lands was vested. For remedy whereof, and in order to detect these frauds, and to prevent the like frauds in future, it was enacted, that all deeds and conveyances theretofore made and executed, or pretended so to be, of such lands, should be deposited with the clerk of the city and county of Albany, on or before the 1 at day of May, 1794; and that all deeds and conveyances of military bounty lands, u which shall not be delivered to, and deposited with the said clerk, on or before the said 1st day of May aforesaid, shall be adjudged fraudulent and void against the subsequent purchaser or mortgagee for valuable consideration.” By an act of the 21th of March, 1794, (1 R. L. 211,) the time

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of depositing such deeds ivas extended to May 1st, 1795, These deeds were to be kept in bundles alphabetically ; and a register made of the names of the parties, for the PurPose °f inspection. They were, after a certain time, to be delivered to the clerk of the county in which the lands lay, there to remain for the benefit of all persons interested. It was also enacted that all conveyances, to be executed after the 8th of January, 1794, should be recorded ; and that the deed first recorded should be operative. These deeds were to be acknowledged or proved. Not so of those executed prior to the passing of the act. It is contended for the plaintiff, that every deed is to be tested by the statute ; and if not deposited as the statute directs, is fraudulent and void against the subsequent purchaser; and, of course, the deed of Carbine, dated in 1783, not being deposited, must be adjudged fraudulent and void as against the Loop deed executed in 1784.

Each of the deeds is valid as between the parties ; and as to all the world, except subsequent purchasers or mortgagees. It follows that the deed of 1783 is void as to the deed of 1784 ; and that would also be void as to a subsequent one, had there been such an one before the passing of the act of the 8th of January, 1794.

The argument on the other side is, that both being in pari delictu, the question is left as at common law, and the elder title must prevail.

Jackson v. Hubbard, ( 1 Caines’ Rep. 82 ,) was cited by the counsel for the plaintiff. In that case, the patentee of a military lot sold it in 1783. The deed was recorded in the secretary’s office ; but was not deposited in the clerk’s office according to the statute. On the lsf of October, 1788, the patentee executed a power of attorney, by virtue of which, the lot wTas conveyed by the attorney the 14⅛ of August, 1795, and the deed was duly recorded in Onondaga county. The court decided, that though the first deed was recorded, yet that did not satisfy the act; as the object was declared to he the prevention of frauds

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Dy facilitating the means of discovering forgeries. And the junior title prevailed. In that case, the power of attorney under which the junior deed was executed, was not deposited, though executed prior to passing the act. Possibly the court considered simply the execution of the deed, which was after the time limited for depositing deeds ; and gave it the same efficacy as if executed at its date by the patentee himself, laying out of view the date of the power of attorney, if this was so, the case is not an authority for preferring the last of two deeds executed before the act, and not deposited ; though if it was considered material that the power should be deposited, the authority of that case is in favor of the junior title in this.

But independent of authority, it seems impossible to sustain the elder deed here consistently with the statute ; and if no further facts appeared, the plaintiff would be entitled to recover.

On the trial, the defendant produced a deed from the patentee to E. Z. Carbine for the whole lot, purporting to be in consideration of ¡$3000, dated the 29th of September., 1823, and recorded the 9th of October, 1823; after this cause had been noticed once for trial, and the grantee had notice of the suit, and of the title under which the lessors claim.

According to the construction which I have given to the act, and according to the case of Jackson v. Hubbard, E. Z. Carbine must hold in preference to either of the deeds of 1783 and 1784, provided he can be considered, in the language of the act, a subsequent purchaser for valuable consideration. He certainly knew that he was purchasing tvhat he before claimed under the deed of 1783, and he knew also that he was purchasing a disputed title. The act of purchasing in 1823, the same lot which his grandfather purchased in 1783, forty years previous, was an admission that he did not choose to rely on the old deed. Clearly he was not a bona fide purchaser, within the full .meaning of the phrase ; for he had notice.

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Is E. Z. Carbine, then, to be considered a purchaser for a valuable consideration, supposing this to be sufficient ? Had we heard nothing of this purchase but what appears on the face of the deed, we should be bound to receive it as prima facie evidence of a valuable consideration. The circumstances are, however, peculiar; and I think call for further proof that a valuable consideration was paid. The soldier had notoriously given conveyances valid as to himself in two successive instances ; one of these was W'ell known to E. Z. Carbine when he purchased; and of the other he had notice ; and, at least, must have entertained a strong suspicion. Is it natural, that dealing with the soldier under such circumstances, he should either exact, nor Carbine pay him a valuable consideration ? Is it not probable that the consideration was merely nominal, paid to and received by the soldier, not as the value or price of the land ; but colorably, and in fraud of the suit then pending ? Without saying whether the deed -was void as being for a thing in action, we think the circumstances of the base required proof by witnesses, or in some way independent of the deed, that a valuable consideration w as in fact paid.

A hew trial must therefore be granted.

New trial granted.