Van Rensselaer v. Clark — 17 Wend. 25

Majority

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Van Rensselaer and others vs. Clark.

Headnote

A statute declaring the omission to record a deed fraudulent and odd as against a subsequent purchaser for valuable consideration, is subject to the same construction as a statute declaring such omission fraudulent and void as against a subsequent bona fide purchaser for valuable consideration ,■ and notice for the purpose of showing mala lides may under the first as well as tlié second statute, be shown at law as well as in equity.

A purchaser for valuable consideration can not hold the tp.^im^tl^ugl^thi deed to liis grantor be recorded previous to a prior deed^exe cuffia by tneorigmaToivnertt a third person, if such prior deed be recorded anterior to the last purchase; and in sucl case the last purchaser is chargeable with notice, and his deed consequently is void,^[1]

This was an action of ejectment, tried at the Tompkins circuit in June, 1835. before the Hon. Robert Monell, one of the circuit judges.

The plaintiffs showed title in one Derick Schuyler to lots No. 57 and 58, Ulysses, in the- military tract, containing 1200 acres of land and a deed from Schuyler to James Van Rensselaer, the father of the plaintiffs, bearing [26] date 25th August, 1794, conveying the two lots for the consideration of fifty dollars ; which deed was n corded in the county of Cayuga, 2d January, 1804. The plaintiffs did not prove that the deed was deposited according to the requirement of the act of 1794. Previous to the deed from Schuyler to Van Rensselaer being recorded, to wit, on the 2d July, 1799, Derick Schuyler, for the consideration of §1000, conveyed the same lots to one Philip II. Schuyler, who procured his deed to be recorded on the 25th October, 1802, and on 2d April, 1805, conveyed lot No. 57, to one Samuel Clark for the consideration of §1300. Clark in 1806, conveyed to James Emott for the consideration of §2500, and Emott in 1833, conveyed to Matthias Miller for the consideration of §10,233’43. The premises in question are part of lot No. 5T, and at the commencement of the suit, were in possession of the defendant as the tenant of Miller. It was proved that Philp II. Schuyler, at the time of the conveyance to him, had actual notice of the deed to Van Rensselaer; this evidence was objécted to but received by'the judge, who charged the jury that Philip H. Schuyler was not a bona

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fide purchaser and his deed was void, notwithstanding it was first recorded, if at the time he took his conveyance he had knowledge or had notice of the previous deed to Van Rensselaer; and that the record of the deed to Van Rensselaer was sufficient notice to subsequent purchasers and rendered void the conveyances to them. The defendant excepted to the charge, and the jury found for the plaintiffs. The defendant moves for a new trial.

L. H. Palmer and S. Stevens, for the defendant.

By the act for registering deeds and conveyances relating to the military bounty lands, passed 8th January, 1794, every deed and conveyance thereafter to be made and executed of any of those lands is declared fraudulent and void against any subsequent purchaser for valuable consideration, unless.the same be recorded before the recording of the deed under which the subsequent purchaser claims (3 R. S. 188, § 1). Philip H. Schuyler was a subsequent purchaser for valuable consideration. This act is not like the general registry act, which declares the prior deed fraudulent and void against any subsequent bona vide purchaser for valuable consideration, unless first recorded (1 R. L. 370, §4). [27] In the act in relation to the military bounty lands, the words bona fide are omitted, and the act was not framed unadvisedly', for at the same time the act relative to mortgages was in existence, which declares that no mortgage shall defeat any bona fide purchaser unless the same shall have been duly registered (1 R. L. 372, § 2). The difference in the result from the different phraseology of the acts is fully recognized by Chancellor Walworth, in the case of Tuttle v. Jackson ( 6 Wend. 227 ), where he admits that under a statute framed like that passed in reference to the military bounty lands, the grantee of an unregistered deed is remediless at law against a subsequent purchaser for valuable consideration, and that he can seek relief only mi equity; whereas, under a statute like the general registry act he may at law show notice, and thus establish that the second deed was not obtained bona fide. In Doe v. Alsop (5 Barn. & Ald. 142), which was decided as late as 1821, under the Middlesex registry act (7 Anne, ch. 20), it was held that the first deed is absolutely void at law as against the second purchaser, even with actual notice of the prior deed, and the party is bound to seek relief in chancery. Until the case of Doe v. Alsop, the question had never been attempted to be raised in a court of law". In 2 Atk. 275, and 3 id. 651, it was held that the second purchaser, even with notice of the prior deed, acquires the legal estate, although relief in such cases is always granted in equity. The same doctrine is laid down in Sugden on Vendors, 471. (See also 3 Vesey, jr. 486; 1 Sch. & Lef. 97 and 160; 2 id. 64; 2 Johns. Ch. R. 190). Mr. Cruise, in his 4th vol. p. 356, 7, 8, § 25, 26, 27, tit. 32, d. ch. 28, questions the power even of a court of chancery to grant relief in such cases. And in 3 Vesey, 486, the master of the rolls expresses his regret that the statute was ever broken in upon, and says that nothing less than actual fraud will justify the interference of a court of equity. It is admitted that in Jackson v. Burgott (10 Johns. R. 457), Chancellor Kent, then chief justice of the Supreme Court, discussed the question whether notice of the unregistered deed is not exclusively of equity cognizance, and came to the conclu- [28] sion that courts of common law have concurrent jurisdiction. The cases cited in support of the opinion expressed by him, either arose in equity <jr were cases at law,,bearing no analogy'to the question arising under the registry act. Besides, the opinion is obiter, as the defendant in that case vas not a purchaser for valuable consideration. In principle, it is right that he holder of the prior unregistered deed should be compelled to resort to ■iquity, so that justice may be meted out in reference to the circumstances of each particular case. Here the grantee of the prior deed, paid a consideration of §50, whereas the grantee in the last deed produced on the part of the defence, paid on his purchase upwards of §10,000. But if the deed

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to Van Rensselaer should be held valid as against Philip H. Schuyler, his grantee Clark, being unaffected with actual notice, is entitled to hold the land. In Jackson v. Given (8 Johns. R. 141), a case arising under this same registry act of 1794, the court say it is a settled rule that if one affected with a notice, conveys to one without notice, the latter shall be protected equally as if no notice had ever existed.” (See also 2 Vern. 384; 2 Fonbl. 153; Ambl. 313; 1 Johns, R. 573, 574). Admitting that Clark had constructive notice of Van Rensselaer’s deed as it was in fact recorded previous to the conveyance to him, still the record only apprised him of the existence of the deed, and conveyed no notice of an j fraud on the part of his grantor. On the contrary, the statute told him that the deed of Van Rensselaer must be deemed fraudulent and void as against a subsequent purchaser for valuable consideration. Besides, when examining the records, Clark was not bound to search for conveyances to which his grantor was not a party (1 Johns. Ch. R. 574). But Clark was not chargeable even with constructive notice. It was not intended by the act of 1794, that the registry of a deed should operate as notice to subsequent purchasers. In reference to the registry of mortgages it has been held otherwise, because from the terms of the aut in reference to mortgages, the implication was strong and irresistible that the registry should be notice; but no such implication is [29] authorized by the act in reference to the registry of deeds. Indeed, it has been expressly decided, that a deposit of a deed in compliance with the requirement of another provision of the same act of 1794, is not notice to a subsequent purchaser (20 Johns. R. 659). Knowledge of facts sufficient to put a party upon inquiry has been deemed equivalent to notice; but the mere registry of a prior deed subsequent to the record of the deed to the party who is about to convey, is not enough to put the purchaser upon inquiry. Had the grantee under the prior deed been in the actual possession of the premises at the time of the subsequent conveyance, it might have been said that the purchaser was put upon inquiry.

J. A. Collier, for the plaintiffs,

contended that the deed to Philip H. Schuyler, under which the defendant derives title, was fraudulent and void, Schuyler having, at the date of his conveyance, actual notice of the previous deed to Van Rensselaer; and that the deed to Van Rensselaer having been recorded, previous to the conveyance from Philip H. Schuyler to Clark, Clark and the subsequent grantees were all chargeable with notice of the prior deed to Van Rensselaer, and that consequently their deeds were void. In support of these positions, he cited 8 Johns. R. 137; 10 id. 457; 5 Paige, 109; 9 Johns. R. 163; 15 id. 555; 4 Kent’s Comm. 169; 3 Mass. R. 573 ; l Pick. 164; 2 John R. 510; 1 Johns. Ch. R. 298; 9 Wheat. 498 ; 1 Yeates, 172 ; 1 McCork’s Ch. R. 395; 6 Wendell, 227; 20 Johns. R. 665; 3 Paige, 437; Hammond’s R. 128; 7 Conn. R. 324; 11 Wendell, 442; 1 Pick. 164 ; 2 Conn. R. 467; 2 Ball & Beaty, 300; 13 Pick. 460 ; 8 Wendell, 627; 9 Cowen, 122; and particularly Jackson v. Post, 15 Wendell, 588.

By the Court,

The question of knowledge in Philip II. Schuyler was put to the jury, who found for the plaintiffs as they were directed to do by the judge, on being satisfied that he had ac.tud notice of the prior deed. Their finding is fully sustained by the evidence. [30] The defendant moves for a new trial on the ground that Jamos Van Rensselaer’s deed, not being deposited as required by the statute, was fraudulent and void as against P. H. Schuyler, though he had full notice. To this the answer is, the act applies only to such deeds as were dated prior to its passage, which was on the 8th January, 1794. Van Rensselaer’s deed was dated in August of that year. The statute of 8th January, 1794, after reciting that many frauds had been committed in respect to these bounty lands, by forging and antedating conveyances of lands to different persons,

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and various other contrivances, so that it had become difficult to discover the legal title; for remedy whereof, and in order to detect the said frauds and to prevent like frauds in future, enacted, by section one, that all deeds, &c. theretofore made concerning such lands should, on or before the 1st of May, 1794, be deposited with the clerk of the city and county of Albany; and that those not so deposited should be adjudged fraudulent and void against the subsequent purchaser, Sec., for valuable consideration; and that every deed, &c. thereafter to be made, &c. should be adjudged fraudulent and void as against any subsequent purchaser, &c. for valuable consideration, unless recorded by the clerk of Herkimer county, before the recording of the deed, &c. of the subsequent purchaser. Other counties were afterwards substituted as places of registry.

It is objected that Schuyler’s deed was first recorded. The answer given \ is, he had actual notice of Van Rensselaer’s deed, which was held sufficient \ as to him in Jackson ex dem. Gilbert v. Burgott (10 Johns. R. 457). The > point was there very fully examined by Chief Justice Kent, who delivered the opinion of the court, and the import of the words purchaser for a valu-J able consideration was considered synonymous with bona fide purchaser. And it was held that actual notice takes away bona Jides as effectually under this act, as under the general registry act. The position was never doubted as to the latter, and' was so expressly adjudged in Jackson ex dem. Merrick v. Post (15 Wendell, 588). The case of Jackson v. Burgott, turned on the very points arising out of the identical statute on which the titles of these parties depend. The court held: 1, that actual notice was equivalent to registry; and, 2, that this was so as well at law as in [31] equity. That it is so'in equity is admitted by the English courts in respect to the Middlesex registry act (7 Anne, ch. 20, § 1), which was the model of this military registry act; though the king’s bench in Doe ex dem. Robinson v. Alsop (5 Barn. & Ald. 142), refused to import the equitable doctrine into a court of law. This is but little more, probably, than a dispute about form; at any rate it is enough for us to see that the contrary has been long settled in this court.

But it is said that Clark bought of Schuyler on the faith of finding that his deed was first recorded, and that he shall not be holden to look farther, and run the hazard of actual notice to Schuyler. In Jackson, ex dem. Merrick v. Post, it was held that the registry of a deed is notice to every one, from the time of its being recorded, even to a purchaser, standing a second! or farther remove from the common source of title. The same case held \ that, having such notice, the purchaser takes at the peril of his immediate 1 grantor’s title being impeached by actual notice, though his deed was recorded previous to the adverse one. This, it is true, was under the general i registry acts; but if the case of Jackson v. Burgott is to govern the same rules apply to deeds of military bounty lands. That case holds, that actual notice is a substitute for registry. Under both acts, to entitle the purchaser to protection, he must be a bona fide purchaser in the strict sense of the . term. He must not have notice when he buys. If the registry be notice, it K takes away bona fides. There is nothing to distinguish the two acts in regard to the effect of registry. By both it is declared to be notice in much the same phraseology. Under the general registry act it is declared that every conveyance not recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1.) The act in question (3 R. S. 188, § 1.) is, that it “ shall be adjudged fraudulent and void as against any subsequent purchaser, See., for valuable consideration.’’ The condition of the subsequent purchaser, as being mediate or immediate from the common source of title, and his liability to be affected with notice, must be the

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same in both cases. The only question which can arise is in respect to the quality of his purchase, the first cited statute demanding bona Jides, the latter not doing so in terms. New trial denied.