Jackson ex dem. Merrit v. Terry — 13 Johns. 471

Majority

p. 471

Jackson, ex dem. Merrit, against Terry.

Headnote

co)^ire®1:,r,(!>b S“anlnioc"l »gá°nst5>lveñí iT’^ioCstomeat, witi! in-judgmentUcrediveyanceis void, ^g tll6 creditor.'

A sheriff’s deed ™ e>® “atendí?“ter “ JrJUT, tion, and a eonveytnce made ami letorfS conveyance ia recorded, the former proprietor conveys it to a bonajt&e purchaser, for a valuable consideration, who has his deed first recorded-such subsequent purchaser will gain a priority, " *

A special return upon an execution, even if sufficient to pas9 a title to the land, (which, it seems, it is not,) must-in order to give the purchaser under the execution a priority, be recorded.

THIS was an action of ejectment, for the recovery of part of lot No. 82., in the town of Homer. The cause was tried before Mr. Justice Spencer, at the last Courtlandt circuit.

At the trial, the plaintiff gave in evidence a deed in fee for the premises in question, from Archibald Turner to James Turner, for the consideration of four hundred dollars, dated the 24th Sept. 1804, which was duly acknowledged on the same day, and a » O v ' recorded in the proper office, May 23d, 1805 ; also, a deed in fee r r , - , from James burner to the lessor of the plaintiff, dated April 9th, 1806, for the consideration of 450. dollars, which was duly acknowledged on the same day, and recorded in the proper office, May 28th, 1806.

The defendant gave in evidence a judgment recovered in

p. 472

the court of common pleas-of the county of Onondaga, against, ■ Archibald Turner, at the suit "of' One Hubbard. The capias, in that suit was returnable dn the 4th Tuesday in May, 1804 ; judgment wás given on the 4th Tuesday oí September following, for 99 dollars 67 cents,, and1 was docketed on the 10th oí January; 3805.’ A fi.fa. was .issued theréoti-, returnable in JarmafyJl80S.; under which Archibald Turner** right to the lot No, 82., in Homer, was sold to one Wood, by the sheriff of Onondaga, who executed á deed to Wood, dated the 10th oí April, 1805, . for the -consideration of 89 dollars and 9Ó cents, which wás acknowledged andrecorded in the proper office, on the 9th oí July, 1806. The fi. fa... before mentioned was filed in the proper office. - on the 25th of Sept. 1805, with a' special return thereon, that the sheriff had sold all the right and title v/iiicb Archibald Turner had 'to': fifty acres of Ño. .82., in Homer, (beihg the same that Turner lived' on,) April the 9th, 1805, to Wood, 'the highest.bidder. A witness. oh the part of the defendant testified, that shortly after judgment was given in favour of Hubbard, against Archibald Turner; iii September,. .1804, Archibald Turner, in the presence and hearing of James Turner, inquired of the Witness if Hubbard had obtained a judgment against hitó, and the witness, in the hearing of James Turner,- informed him that judgment had been obtained against him, Archibald Turner; that on the same day, Archibald Turner executed, the deed before mentioned to James Turner, to which deed the.Witñéss on the trial was a subscribing witness. The witness saw no money paid, nor obligation executed; by the grantee, nor did he hear the parties say anything respecting payment of the consideration expressed in the deed. James Turner Was in very poor circumstances, and unable, as the Witness staled,, to púy 400 dollars, and Archibald Turner continued - in possession of the .premises, after -the.'exe* cution of the conveyance, until 1807, when he went away, and left his family, and his• family continued to reside on thedand for some time after. Archibald Turner was in possession- of the land when the lessor of the plaintiff purchased it, but á witness on the part of the plaintiff testified, that he was present in the spring of 1806, when Archibald Turner hired thp land-of the lessor of the plaintiff, for one year, upon shares. There was some, very slight evidence oii the part of the plaintiff, to show that a consideration actually passed between Archibald and James Turner, "and the defendant attempted to prove, that the

p. 473

consideration, on the purchase by the lessor of the plaintiff was paid to Archibald Turner ; but a witness on the part of the plaintiff testified, that he was present when the lessor of the plaintiff purchased the land, who gave James Turner about 70 dollars in cash, a waggon, harness, and a pair of horses, and notes for the balance, which were made payable to James Turner.

A verdict was taken for the plaintiff, subject to the opinion of the court on the above case.

Sabin, for the plaintiff.

Cady, contra.

delivered the opinion of the court. From the evidence in this case, it is manifest that, as between Archibald and J ames Turner, a gross fraud was intended. The sale was made for the express purpose of avoiding the judgment of Hubbard against Archibald Turner. But there is no evidence that the lessor of the plaintiff was, in any manner, privy to such fraud. He appears to have been a bona fide purchaser from James Turner, without any knowledge of the fraud between him and Archibald, and, of course, he is not to be prejudiced by it. The right between these parties will, therefore, depend upon the question, whether, under the act for registering deeds and conveyances, relating to the military bounty lands, (1 N. R. L. 209.,) a deed from the sheriff, upon a sale under an execution, is necessary to be recorded. The judgment, under which the defendant derives his title, was docketed, the sale made, and execution returned, and filed, and a deed given, before the deed, from James Turner to the lessor of the plaintiff, but the latter deed was first recorded; so, that if the act applies to such sales, the deed to the lessor of the plaintiff has priority. The act declares, that all deeds or conveyances, of, or concerning, or whereby any of the said lands may be any way affected, in law or equity, shall be recorded; and that every deed, or conveyance, of such land, shall be adjudged fraudulent and void against any subsequent purchaser, for valuable consideration, unless the same be recorded before the recording of the deed or conveyance under which such subsequent purchaser shall claim.

Jn the case of Simonds v. Catlin, ( 2 Caines Rep. 61 .,) it was

p. 474

by this court, that the estate .of a defendant did not. pass at a sheriff’s sale without a deed or nóte in writing, to be signed* .by the sheriff; and reference is there made to this very statute, and the precise .case now before . the, court stated, to show the evil that would result from considering the title as passing by the sale without a deed ; and it séemed there to bfe assumed, as the clear; construction of the statute, that a sheriff’s, deed, as well as any other, must be recorded. There is no good reason why it should not be so. The object of the statute was, to enable purchasers tb ascertain the validity of the title,, and to determine whether they could.purchase with safety; and the law refers them to the record, for this..purpose. . , r ,. •

If the sheriff’s sale is to defeat the., purchaser, he. would, in vain, seek for the evidence of the title. • And if it should be •admitted, as was, urged upon the argument, that the return on the. execution might be so special as. to supercede the necessity óf a deed, it wotffd not dispensé with the necessity.of having it, recorded. This .return-would then be the evidence of title; ánd ought to be considered as falling within the reason of the Act; it would be an instrument by which the lands'would be .affected; and all such* ar.e to be recorded, or deemed void agains t subsequent bona fide deeds duly recorded. But although in fhe'easeot Simonds v. Gatlin, it is said*, that on a sheriff’s salé óf land, a deed, or note in writing, signed by. the sheriff, is ne-' eessary to pass the title, a return endorsed on the execution never has,: as yet, been considered, by this court, as suffieientfor that purpose. Upon the whole, therefore; we think it will best comport with the reason and policy of the statute, as it certainJy does with the letter, 'to extend it to sheriff’s deeds as Well .as to othersi. The,, deed To. the lessor pf, the plaintiff, -having' .been. first recorded, is. entitled to priority. Judgment must, Accordingly,. be .entered for the plain tiff,

fodgméjií'for'flieplhiáfí&