Astor v. Wells — 17 U.S. 466

Majority — Johnson J.

p. 466

(CHAKCERY — LOCAL LAW.)

Astor v. Wells et al.

Syllabus

Under the registry act of Ohio, which provides, that certain deed» “ shall be recorded, in the county in which the lands, tenements, and hereditaments, so convoyed or affected, shall be' situate,, within one year after the day on which such deed or conveyance was executed ; and, unless recorded in the manner and within the time ■ aforesaid, shall be deemed fraudulent against any subsequent bona . fide purchaser without knowledge of the existence of such former deed of conveyance:” lands lying in Jefferson county were conveyed by deed ; and a new county, called Tuscarawas county, was erected, partly from Jefferson, after the execution, and before the recording of the deed, in which new county the lands were included; and the deed'was recorded in Jefferson. Held, that this registry was not sufficient ,either to preserve its legal priority, or to give it the equity resulting from constructive notice to a subsequent purchaser.

Notice of a prior incumbrance to an agent is notice to the principal. Under the statute of fraudulent conveyances of Ohio, which provides, that “ every gift, grant, or conveyance of lands, tenements, héréditáments, &c. made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person or persons who shall purchase such lands, &c. shall be deemed utterly void, and of no effect:” Held, that a bena fide pur- ■ chaser, without notice, could not be affected by the intent of the grantor to defraud creditors.

. Appeal from the Circuit Court of Ohio.

The bill in equity filed in this cause states, that Arnold Henry Dorhman, in 1806, became indebted to the United States, in the.sum of 6,515 dollars and 10 cents, for duties upon the importation of certain goods payable at the custom-house in the city of New-York. The plaintiff, Henry Astor, became

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bound with Dorhman for the payment of those duties; and, thereupon, Dorhman, to secure Astor, executed and delivered the mortage deed of the 14th of August, 1806, in the bill mentioned, for the 13th township, in 7th range, then lying in Jefferson county, in the State of Ohio: and Dorhman became farther indebted to the plaintiff in the sum of 2,700 dollars, to secure which, upon said township, he afterwards, on the 25th of August, 1807, executed another 'mortgage deed of the same premises. Both the deeds were recorded in the county of Jefferson; on the 2d of October, 1810, and in Tuscarawas on the 21st of October, 1812, which county was erected in part from Jefferson, after the execution, and before the recording therein of said deeds.. On the 26th of August, 1807, the plaintiff released to Dorhman one fourth of said township, by deed recorded in. Tuscarawas county on the 9th of March, 1813. On the 24th of October, 1810, Dorhman gave the defendant Wells a deed of trust of the three fourths of said township not released, to secure the payment of 5,000 dollars, for which the defendant Wells had become liable for Dorhman, by endorsing his paper at the bank of Steubenville, which was re- . corded in Tuscarawas, the 13th of January, 1811. On the 12th of February, 1813, the defendant Weils took another deed from Dorhman for the quarter or sections which had been released, which was recorded in Tuscarawas-county on the 10th of March,. 1813, to secure 3,000 dollars, for farther endorsements by Wells for Dorhman. The bill then charges the defendant Wells with notice of the plaintiff Js deeds and

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lien upon said lands, before his deeds, endorsements, or any payments made by him; and that he accepted the deeds, made the endorsements, and payments, if any, with knowledge, &c.; charges a secret understanding, that the released sections, conveyed to Wells, by the last mentioned deed, were to enure to Dorhman or his family; and that neither, transaction between Wells and Dorhman was bona fide. Dorhman died on,the 21st of February, 18113, nine days after his last deed' to Wells, who commenced a suit against the heirs of Dorhman on the 27th of August following; and obtained a decree of sale, under which he purchased the premises; all which is charged to be fraudulent. The widow and heirs of Dorhman, by their answer, admit all the deeds, and answer, generally, that they know nothing of the other transactions. The answer of Wells admits the plaintiff’s deeds; states his own deeds to be bona fide-, and denies notice and fraud. Obadiah Jennings, who was examined as a witness in the , cause, testified, that he prepared the first deed to Wells, and Saw it executed, but says that Dorhman employed him, and he considered himself exclusively employed by Dorhmán, and not as. the agent or attorney of Wells, in that transaction ; that it was probable he had held some convérsaíion with Wells as to his liabilities for Dorhman,. and the nature Of the ; security to bé given before Dorhman applied.to him to draw the deed; ¡and that Wells sent the deed to. him in a letteiy to cany to be recorded in Tuscarawas county. Dorhman informed him that Astor’s. agent had brought Astor’s deeds and put them o&

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record ; and Dorhman wished to give Wells, the pre- , ference, and consulted him how it could be done. The witness examined the record, and knew, of As-7 . tor’s deeds and lien on those lands. He advised Dorhman to give Wells a deed, which, if recorded in Tuscarawas, would give him the preference; but never gave Wells any information respecting Astor’s deeds.

Mr; Brush, for the appellant and plaintiff,

argued 1. That the defendant’s (Wells’) deed was void under the second section of the statute of Ohio, entitled an “act for the prevention of'frauds,” &c. which declares “that every gift,.grant, or conveyance of lands, tenements, hereditaments, &c. made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to. defraud or deceive the person or persons who shall purchase such lands, &c. shall be deemed utterly 'void, and of no effect.’’^[22] The bill shows Astor tobe a creditor; the answer admits it; and Jennings proves. that Dorhman informed him such was the fact. The debt being secured by mortgage upon, the lands in controversy only makes the fraud more palpable. Still he was and is a creditor; and it is manifest Dorhman made the deed to Wells to. defraud Astor, his creditor. 2. The recording of Astor’s deeds in Jefferson County, was notice to the defendant, Wells. During all the time given for recording, the lands lay in that county; it was. therefore the proper place for recording , those, deeds, and

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the recording afterwards must have relation to the time when and the place where they ought to have been recorded; considering the township as part of the county for that puroose.^[22] And the recording ought to be considered as. nunc pro tunc, yet not so as to affect any deed made and recorded prior to the making this record: and as to all subsequent, no inconvenience or injustice could be complained of, inasmuch as every purchaser would be bound to search those records for all deeds there recorded prior to the division. Using such diligence as he was bound to use, knowing the lands originally lay in that county, he would have discovered Astor’s deed there recorded, before any deed made to him ; and ought, therefore, to be charged with notice. To what, time does the act of assembly relate, when it says the deed shall be “ recorded in the county in which such lands shall be situate P”^[23] To the time of making and delivery of the deed, or to the time of recording ? The latter - would make the deed take effect from the recording, not from the delivery, as is the law. The case of Taylor v. McDonald’s heirs, is not analogous, as there the. lands did not lie in the county where the deed was recorded; and the question was upon the effect of the deed at law. 3. By accepting the deed prepared by Jennings, the defendant, Wells, has made Jennings his agent by legal implication ; and notice to him i$ noticé to his principal. Jennings acted- in the transaction ; advised Dorhman how to give Wells the pre

p. 471

ference; prepared the deed; saw it executed, and at the request of Wells carried it to be recorded.; and had some previous conversation with Wells as to his liabilities for Dorhman, and the nature of the security to be given. In Leneve v. Leneve,^[22] the defendant “ denied notice of the first articles and settlement till six months after the marriage ; and denied that Norton was employed as her solicitor, though she put confidence in him, because he was concerned for her husband, and recommended by him, who assured her he (Norton) would make a handsome provision for her; and Norton assured her he had taken care to secure her an annuity of 150/. a year, and did not then, or any time before, -give her any notice of any former settlement.'5* Although the defendant here has not been as candid as the defendant was in that case, yet by his artful taciturnity and scanty pleading upon the most important. sübject, much is to be inferred against him. In the case of Jennings v. Moore,^[23] Blincorne acted the very part Jennings has in this transaction, so far as the conduct of either is material to affect the purchaser; and so far as there, is any difference, it would seem the case at bar presents much the strongest ground of equity, to set aside the, subsequent incumbrancer or purchaser. Moore had completed his purchase by paying the money; Wells had not. . Blincorne was a bona fide creditor, and had an interest in the estate of Whitlatcb, the vendor, and his object was to secure an honest debt; but Wells’ purchase; and the sale to him, was made to

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defraud and defeat a bona fide creditor. Moore was charged upon the naked fact of acceptance; but in this case, strong circumstances and inferences, beside that, implicate Wells. He 'most undoubtedly knew the hand writing of Jennings, his friend, and was bound to inquiry; but Jennings was careful not to mention it to him in any way! So was Blincorne, and so Norton-; and the care which all have taken for the purchaser implicates him with their agency, if he will accept, they having notice, and contriving to' conceal from him, is the ground of mala jides, and. the foundation for the charge of notice against the purchaser. Brotherton v. Hatt,^[22] maintains the same principle, and is called by Lord Hardwicke “ a clear authority.” The s.ame scriveners were witnesses, and engrossed all the securities, and were quasi agents for all the lenders. Not that the fact Of agency was . otherwise established than by. the fact of accepting or receiving the securities, engrossed by the same scriveners, who had notice; the concealment of which by them, if the law could tolerate it, would make frauds practicable, without the means of detection. In the latter case above citéd, it does' not appear that. Mrs. Hatt,, the third mortgagee, had any better knowledge who the scriveners were than Wells in this case. If such had been the fact, that she knew who engrossed the deed for her, and such fact deémed important, it would have been noticed in the. report.. And it is not mentioned as a fact, or material, in the case of Léneve, v. Léneve, where .

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the casé is cited with approbation by the,Lord Chan* cellor; but in all these cases they séetti to have gone much upon the ground of the fraud of thosé third persons, and the danger of sanctioning such fraud, by deciding stricii juris, Upon the mere ground of the laches of the first,purchaser in not recording his deed withip the time prescribed, or not before the second deed. And although these cases profess to gp upon the ground of an agency, yet it is manifest such agency was presumed in each1, and that the decision rested virtually upon the fraud which was established against, persons not concerned in interest, thereby fixing the sting of disability upon the temp- - tation to commit fraud, by whatever motive prompted' Or encouraged. 4. The defendant, Wells, has not shown the timé of his payment, nor denied notice at or before the same, and is, therefore, chargeable With notice before his purchase was completed.^[22] After notice, Wells ought to have compelled Dorhman to make payment, by applying the other quarter, township, instead of endorsing móre, and securing that also, thereby taking, all hope from Astor. His Conscience was affected before the first arrangement was completed, while he' had time and opportunity to save himself, and he was boiind to that course. 5. -The defendant has not denied notice indirectly by implication, or noficé to one whom the law will coiisider his agent His answer, is stiff ánd formal* es-’ pecially with respect to the first deed to him ; care

p. 474

ful not to say how that matter was managed ; and, considering all the circumstances of this case, it must be considered as a declaration that he had no actual knowledge of Astor’s deeds, not having received positive information that such were in existence. 6. Can the defendant, Wells, maintain a title, Or claim the benefit of an interest, derived to him through the fraud of Dorhman and Jennings ? If he can, the doctrine,and principle of many cases are overturned, and we have a new law upon the subject of frauds. What is said in Leneve. v. Leneve,^[22] is quite applicable. But in a late decision, this doctrine is fully recognised in a casé like the present, though with fewer circumstances of fraud to justify its application.^[23] The cases cited to the third point are considered as applicable here; thq mala fides of the actors in those cases were the ground of considering them agents by relation; the purchaser accepting his deed from polluted hands., makes their acts and knowledge his own. Sir Samuel Romilly, (arguendo) in Huguenin v. Basely,^[17] says, “though no direct authority is produced, your Lordship, dispensing justice by the same rúle as your predecessors, upon such á subject, not confined within the narrow limits of precedent^ will, as a new, relation appears, look into -the principles that govern the hu man heart, and décide in a case far the strongest that has. yet occurred upon this ground alone, from its infinite .importance to cbmmunity.”,

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And the Chancellor thereupon • lays dowii the doctrine as well established, “that interests gained by the fraud of other persons, cannot be maintained.” It would be infinitely mischievous if they-could, and as there said, “ would be almost impossible ever to reach a case o,f fraud.” The genus, or kind of fraud, seems not to be so much regarded as that such is the character of the transaction.

Mr. Doddridge, contra.

1. The registry act, and whatever other statutory regulátions, each sovereign society may adopt'- for the transfer of titles to real property, are matters- of positive institution; the English registry act and statute of inrolments, however, have furnished, precedents which in one way or another have been followed up in each State; and the decisions upon them have-been so uniform,, as to have become quite familiar. The attempt here to impeach a deed innocently obtained, on the ground that it was fraudulently intended by the grantor,, is quite novel, ~and as dangerous as it is novel. It, ipróeéeds on- the ground that the clause in - the State law .is to be expounded in the disjunctive, and that “ or” is not to be expounded so as to mean “and.” The first'objection, tó this interpretation is, that it supposes the word “made-5 can be satisfied by the act of a véhdojr alone; ahd the word “ obtained,” in like manner, by the single act of - the vendee, which is impossible. .No' deed eán be made without the assent of two persons, at . least. Deeds také effect upon deliyery ; which is never effected without the concurrence of the person who receives,. The second objection is, that it puts

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to.hazard the interest of every purchaser; as. every purchaser must depend for His security, not upon his own innocence, but upon the continual integrity of the vendor ; who, if at anytime, and for any reason, he can be brought to confess his own fraudulent intentions, in answer to a bill against him' and his vendee, can ruin the latter. A third and decisive objection is, that the statute of frauds, if it is susceptible of the complainant’s interpretation, repeals the registry act, which is not pretended. The registry act then in force jn Ohio, provided, that all deeds executed out of the State “should be recorded in the county in which the lands, tenements, and hereditaments, so conveyed or affected, shall be situate, within one year after the day on which such deed or conr yeyance was executed ; and unless recorded, in the. manner, and within the time aforesaid, shall be deemed fraudulent against any subsequent bona fide purchaser,, without knowledge of the existence of such former deed of conveyance.’! Now, if the act of Dorhman, in giving his first deed to Wells, is fraudulent,- as being made with intent to postpone Astor to him, and for that reason, is void, then the registry act is effectually done away; because rio man, Under any circumstances, can make a second sale by concealing a former one, without being guilty of as much fraud as Dorhman at the least. His case was a hard one; he had two creditors, one of whom must suffer, and his wishes were to prefer one of them. He sought no benefit by this act to himself, nor .can his «conduct be as censurable as if he were selling to put money into, his ovra pocket. If the plaintiff be right,

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the parties to a first and second sale stand as at the common law. 2. The doctrine of constructive notice, is entirely exploded. The term never did convey the true meaning of the Courts. There is something almost absurd in the idea of proceeding upon a question of fraud by construction.. The cases upon this subject, only proceed upon two principles: first, actual notice to the party ; and, second, to the agent of the party. The notice arising from a suit pending; a registry or any public record, is not a matter of construction. The lis pendens, the register or record, furnish such irrresistible evidence of notice in fact, that the party is pot at liberty to urge the contrary; and the relief is granted on the ground of notice in fact. ,Nor is this an arbitrary rule : all men are parties to the public proceedings of the Courts of justice, and presumed to be present at them; and, also, parties to every legal registry, or other public record; what the laws require to be done, and is done according to those laws, they are, in like manner, parties to, and are supposed to be acquainted with; and because the laws have provided those public documents for the security of every man, it is his fault if he sees them, not, and, therefore, he is. adjudged^ to have seen them in fact. But this reason can have no application to the proceedings of a Court pot of competent jurisdiction, nor to registries and records pot m^[22] de according to law. In respect to proceedings in. Courts of incompetent jurisdiction., or irregular records, they are only notice, if in fact, they have been heárd. or seen by the party, sor as t®

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put him upon inquiry.^[22] It is believed that no décisions have been had upon this statute ; but the statutes of Kentucky and of Pennsylvania are like tijat 0f Ohio: and in the case of Taylor v. M ‘onald’s heirs,^[23] the Court in Kentucky decide that a record made, not in the proper county is not of itself notice. The Court áay, “ the law requires the deed shall be recorded, not only within the limited time, in order to be ■ valid against a subsequent purchaser without notice, biit also in thp county where the. land lies. This provision is obviously intended to enablepersons to trace the legal title with the industry and attention essential to a compliance with the act.” That case is stronger than is necessary for our purpose ; because in that, the deed was recorded in time, but in the wrong county; and in ours, the party has failed in respect of both time and place. The case, of Heister’s-ifesseie v. Furtner,^[17] is an-authority to the same effect; and. also that a record made within the time, and within the proper county, is void,; if made upon less'proof than the law requires. An illegal registry, then, is not proof of notice. Nor does, the .doctrine of relation apply. All the cases cited oh the subject"of relation' prove, that the act by which a transaction is completed has'relation to' the beginning; as;’for instance; the' presentation of a copyhold to the' surrender: but that this relation isa legal; fiction, óperatirigbétweenthe parties only, and without any effect Upon third persons or their

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rights. But the use made of this fiction, whereby an illegal registry is made so to relate, either to. the date of the execution, or proper time of registering a deed, as to affect the estate of a third person, is an invention of such modern date, as to have acquired, as yet, very little authority in this country. If the obvious policy of the law, and the authority of the decisions re-, ferred to,, are satisfactory, then the case of ..Wells is the very strongest that can be imagined. Suppose he had gone to the registry, to look for the rec'ord of any conveyance of the lands in question, .who could suppose he would examine the entries upon it after the date of'the separation of the counties, for a conveyance of lands in Tuscarawas ? 3. Itis said that Wells does not show himself to be a complete purchaser without notice, because he had not made full payment. The law is. admitted to be as stated. in respect of a purchase and sale; but the reason given for it has no application here. The reason is, that when the second' purchaser receives notice of the first he should stay his hand — refuse a deed, or withhold payment; and because this is in his power, it is his moral duty to do' it But in the case of Wells it was otherwise: he was already accountable to,the bank for the whole' amount. This point has been determined in a case of . precisely the same nature as to a bank endorsement.0 The tule,- that, notice to an agent is notice to his principal, and, consequently, his fraud affects his principal as much as if committed by himself, is not disputed. . But the rule is explained and qualified,

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in Order to give security to the party affected by it; The agent must be employed by the party — in the sarnie transaction. Notice to the agent is not siififio cienf, unless' acquired by him. in the course of the transaction in which he is employednotice otherwise acquired will not affect his principal. A general agency is not sufficient: it must b¿ in the particular ease : and the employment most be to purchase, or to make or treat of terms — not merely to draw a deed. If the agent is employed by one of the parties, notice to him1 shall affect that party only ; where both employ him, his fraud shall attach, to both.^[22] And it is only necessary to deny the agency, and all circumstances from which fraud may be inferred, where those matters are charged in the bill.^[23] The propriety of the application of the' general rule as to agents, in the cases of Brotherton v. Hatt,^[17] Jennings v. Moore,^[18] Leneve v. Leneve,^[19] has been questioned. . In each of these cases, the fact of agency is charged with all the circumstances of the transaction, from which that fact could be inferred. As those three cases contain. nearly the whole law upon the subject of notice to an agent, it is only necessary to show, that neither “of them furnish á precedent .to affect Wells. In Leneve and Leneve^ the agent was defendant, and he denied his agépcy, and admitted notice. The other only denied notice to herself; and the ground of decision is, that she admits enough hi,

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her answer to.make Norton her. agent.. In pfennings v. Moore, one person was treating of a purchase for himself, and during the transaction received notice; and perfected the contract in the name of a third person, who accepted of it without notice. . The. au-. thority of this decision has been doubted, but with very little reason. In JBrotherton v. Hatt, the agents were scriveners. They kept an office, and their profession was to drive bargains, effect loans, and perfect, securities. The Court adjudge them to be agents, and that notice to them was notice to their principals; not because one of the parties had consulted them, and procured them merely to write a deed which another accepted. By the term “ scrivener,” something more is meant than a conveyancer. The reason for the decision is, that all the loans were effected by them/ at their office, and all the securities also ; and from the nature of their employment, the Court decided them to be the agents of each party, in effecting the loans and the securities; but whether the Court decided these facts upon proper testimony or not, is immaterial. The. principle is,, that notice to him who is employed by both parties, to effect a loan, and prepare a security, is notice.to both parties. The -relation of agent and principal, cannot exist without the consent of the principal. In every case cited, and in all others, the fraud is charged, as it happened, either to the principal or his agent, and in the latter case the agent is made a defendant. Agency or not, is .a fact which, if stated and denied, must, like every, other fact, be proved. In our case, all that is charged is denied, and no part of it is proved.

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Mr. Brush, in reply, insisted,

that the construction of the act of fraudulent conveyances, contended for on the part of the defendants, could not be supported. It was undoubtedly competent for the legislature to say, such instruments should be void for fraud, whether the donee or grantee be party in the fraud or not, and they have so said. Taking the entire section together, it is sensible only as it reads ; but by altering “ or” to “ and,” a new meaning is interpolated. The rule upon the subject is, that such construction shall be given, as will give effect to every word, if possible, that none may have been employed to no purpose. The construction, moreover, is arbitrary ; contrary to a very plain text; substituting one word for another, in a law which is neither ambiguous-nor doubtful; not for the purpose of suppressing fraud, and advancing the remedies, but for the purpose of restraining the operation of a remedial act. A deed void for fraud, is not protected by the ‘registry act, which relates only to purchasers, and never was intended to affect creditors. It has never received such a construction in the State, or elsewhere, nor' will the language warrant it. Speaking of the deed of _a prior purchaser, it says, “ unless recorded in the manner, and within the time aforesaid, shall be deemed fraudulentagainst any subsequent bona fide purchaser, without knowledge of the existence of such former deed of conveyance.” There cannot be a subsequent purchaser, unless there had been a former one. Besides, thp registry act was passed in 1805. The .statute of fr'auds and perjuries, protecting creditors against the frauds of their debtors, in 1810, five years afterwards;

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ánd must be considered, as repealing so much of the former act as comes within its provisions. . If it did affect creditors in any way^ quo ad hoc it is repealed.; leaving it to operate as between purchasers, upon a first and second sale, the first not a creditor. Another pretension set up for Wells is, that he also is, or ivas, a creditor, and that Dorhman,might prefer which he would. If this be so, that provision in favour of creditors in the statute of frauds is defeated, as it would be in the power of a debtor to evade it at pleasure. If it be law, which wé feel no disposition to controvert, that in some cases, a debtor may give one creditor a preference over .another, yet this privilege no longer remained with Dorhman. He had exercised it. He had made his election to give Astor the preference, by conveying the lands tó him, as it was competent for him to do, most assuredly, when it does not appear that, at that time, he owed any one else. This privilege must be exercised fairly, by giving that which is his own, not that which belongs to another, and which he may happen to hold in trust for that other. There is no law which authorizes a trustee thus to give away the trust estate, by advancing or preferring one creditor to another. But Wells, at that time, djd not stand in the relation of creditor to Dorhman. He had endorsed, but it does not appear he had paid any money, or that there would have beén any necessity for him to pay, if, after express notice, he had not extended his endorsements, and involved the whole of Dorhman’s estate, as if with the design which Dorhman had already manifested, of cutting Astor off

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altogether. As is said in Tourville v. Naish,^[22] ha should have filed his bill guia1 timet against: Dorhman, and pursued his remedy upon the other quarter township, released by Asfcor, and whatever other’property cghldbe found. There is noíhing in.the case, which shows that Dorhman had received the. whole 5,000 dollars, before notice to- Wells, nor what part he had received. It lies upon Wells to make this appear clearly, for if any part remained unpaid, it might have been stopped, and the payment enjoined. It is said, “ if the plíiintiffbé right, parties to a first and sécond sale-stand as at common law.” But . this is not a case merely between purchasers at a first and second sale. To this point, the plaintiff is considered a creditor ; and it stands as a case between a creditor and purchaser of the debtor. At common Jaw, such a conveyance would be avoided. The statute of Elizabeth is in aid of the common law, extending the ■remedy to subsequent creditors, superadding the sanction of penalties. It declares “ deeds made in fraud of creditors void.” And although it inflicts, penalties, still, in England, it is viewed as remedial, “ made against frauds, for the public good, and to be taken by equity.”^[23] Even if the doctrine of constructive noticp were admitted to be no longer a rule of equity, still this, admission would only raise a ^dispute upon an abstract proposition; whether the notice we rely on be actual or constructive f It is, therefore, a disagreement- as to the name.

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Under what denomination hare the law writers ' classed it ? is the,questiori. If actual, then we say Wells had actual notice. If constructive, then he had only constructive notice. We have only to show Wells had such notice as the law charges him with, to avoid the danger of sanctioning fraud, and to close the avenues of injustice, ancí fraudulent speculation. According to the opposite argument, a suit pending, or a register of a deed, are notice in fact. They are facts of record, and notice to all persons in the same community; but we must be permitted to disbelieve that every persdn has seen them in fact, and, therefore, knows what they contain. Yet every person is bound by this knowledge, because they ace made public, and accessible to all: constructive knowledge or notice, being by the law charged upon the party,' because he might have known ; the law having done its part by making such public record, and declaring all persons bound by it, whether they know it or not. It is a well established.principle,-that the defendant must unequivocally deny all.notice, even though it be not charged, and every Fact arid circumstance from which it can be inferred, in order to be. considered a bona fide purchaser.^[22] This the defendant, Wells, has riot donfe. The case of Taylor v. M'Donalcl’s heirs,^[23] is not analogous; as there the lands never were included in the county where the deed was recorded; and the question was upon the effect of the deed at. law.

delivered the opinion of the

Court. The questions in this case are partlyof law, partlyof fact. The bill charges the. defendant with express notice of the complainant’s previous mortgage, and with holding the land purchased under a secret trust,for the legahrepresentatives of Dorhman, the mortgagor. Both these facts the answer denies ; and as there is no evidence to - sustain them,.they must.be put out of the. case.

The bill then proppses to affect the defendant, Wells, with constructive notice ; and if it fails there, then to set aside the deed to Wells as absolutely void under the express provision of a law of the State of. Ohio.

Obadiáh Jennings, who drew the mortgage from Dorhman to Wells, was fully apprised ©f the exis-. tence of Astor’s mortgage, and acted in concert with Dorhman expressly to defeat Astor’s prior lien, and give precedence to Wells. The advantage of which they proposed to avail themselves for this purpose, was a supposed- mistake committed by Astor as to the legal office for recording his deed. The land was originally comprised within the limits of Jefferson county. But before the recording of the deed, the county of Tuscarawas was taken off from Jefferson, 'and the land lay in that part of Jefferson which thus became Tuscarawas county. The law of Ohio' requires that the recording shall take place in the County in which the land lies.

The first question is, was this a legal recording under the laws of Ohio, so as to preserve the priority which dates gave to Astor ? The office of Jefferson

p. 487

county was the legal office at the time of executing the deed: did it continue to be so at the time of recording it ? This can only be decided by considering the object of the law.' It was to give notice to subsequent, purchasers — to place at. their command the means of investigation, to which, if they did not resort, they had only to blame their own indolence or folly. But no one in search of such information respecting lands situate in Tuscarawas county, would be expected to search the records of Jefferson subsequent to the. date of the separation. He would naturally refer to the records of the new county to its origin, and from that time pursue his inquiries among the records of the county in which it was originally comprised. And, therefore, we are of opinion, that the recording of Astor’s deed was not sufficient, either to preserve its legal priority, or give it the equity resulting from constructive notice.

But it is contended, that Jennings was the mutual agent of both mortgagor and mortgagee in the creation of Wells’ mortgage, and, therefore, the notice to ■xx'r 11 tt • i Jennings was notice to Wells. Here, again, the com- ° ® . * plainant’s case is unsupported by the evidence. On the law there could be no doubt, if the facts wére such as the complainant contends. But it is positively denied both by Wells and Jennings; and if Jennings was the agent of Dorhman only, his knowledge could produce no other effect on the rights, of , . Wells than if. it had been concealed in the breast of Dorhman. And this leads to the final question in the case. „ As the deed really was “ made” to defraud Astor, does that circumstance alone, under the laws

p. 488

of Ohio, destroy its validity, without reference to the knowledge or connivance of the mortgagee. And this again must be decided by referring to the object (,jie |aWo The words of the statute would literally embrace the'case. But who are the objects of the law ? Not creditors only, but subsequent purchasers. And to give it such a construction as would expose a bona fina purchaser without notice to imposition, in order to protect creditors, could never eomport with the intent of the law.

Upon the whole, we are of opinion, that there is no error in the decree below, and that the same be affirmed, with costs.

Decree affirmed, with costs.