Mallory v. Stodder , 6 Ala. 801 ( 1844 )

COLLIER, C. J.

The act of 1823, enacts, that any deed or conveyance of land, &c. shall be void, and of no effect against a subsequent bona fide purchaser, or mortgagee for a valuable consideration without notice, unless the same shall be duly acknowledged or proved and certified, and lodged within six months after its execution and delivery, with the clerk of the county court of the county in which the lands, <fec. are situated, for registration. [Clay’s Dig. 154, § 18.] This provision is substantially re-enacted by the act of 1828, which also makes registration necessary as against creditors and purchasers, and declares, that “all deeds recorded after the expiration of six months shall be valid and operative from the date of their registration as to creditors and subsequent purchasers: Provided, that the same shall be valid at ail times between the contracting parties thereto. [Clay’s Dig. 258, § 8.]

The deed from Rocket to Mallory, can only operate against a creditor, or subsequent purchaser or mortgagee without notice, from the time it was deposited with the clerk of the county court to be recorded. If then, Messrs Norris, Stodder & Co. can be regarded in cither of these characters, the conveyance under which the defendant claims can only be effectual as to them, from the second of March, 1840, when it was registered.

The fact that the deed of trust was executed in Mobile, while it was in an incomplete state, can make no difference as it respects its legal effect. That execution would be a nugatory act, and the deed would become operative from the time the grantor inserted therein, a description of the land, and acknowledged the same with a view to its registration. Before this was done, he obtained the conveyance from Rockett, according to the contract between Mallory and himself; and so far as the evidence of a legal title was necessary, he had it.

But the proof docs not show that Baker did sign the deed of trust until after it was perfected, in point of form, and he had actually obtained the conveyance from Rockett. As for its execution by the trustee or cesluis que trust, while it was a mere blank, that is wholly unimportant. It was not necessary that they should have signed it, before it was recorded; for if the trustee had even refused to act, chancery could provide for its execution by supplying his place with a substitute; and as for the beneficiaries, their assent will be presumed, as the deed was intended for their security, without requiring the payment of an additional sum, and was prima facie beneficial. But if an execution by the latter were necessary, their subsequent assent to what they had previously done ineffectually, would be sufficient.

At the time then, that the deed was executed for the benefit of Norris, Stodder & Co., Baker had in his possession a formal conveyance of the title, and the deed set up by the defendant, though executed near two years previously, had never been recorded. This, it is contended, cannot prejudice its operation as against the plaintiff; for even conceding that Norris, Stodder & Co. were bona fide purchasers, or incumbrances, for a val uable consideration, yet they would be affected by the notice which Baker bad of defendant’s title. This question arose in Fenno, et al. v. Sayre & Converse, [3 Ala. Rep, 475.] There, this court said, where one acquires an interest in land, in good faith, and for a valuable consideration, if his grantor was invested, with a legal title, evidenced by the usual writings, was himself in possession, and there was no such registry of an incumbrance as was constructive notice of its existence, he cannot be defeated by showing the invalidity of the title under which he claims. It wa*also said that a derivative purchaser without notice, cannot be affected by a notice to his immediate vendor, and although he purchase with notice, he may protect himself by the want of it in the latter.— Sugden, in his Treatise on Vendors, [p. 471,] thus lays down the law, “although a deed be merely voluntary or fraudulent in its creation, and voidable by a purchaser, viz: (would become void by a person purchasing the estate) yet it may become good by matter ex post facto; as if a man make .a feoffment by covin, or without any valuable consideration, and then the first feoffer enter and make a feoffment for a valuable consideration; the feoffee of the first feoffee,shall hold the lands and notthe feoffeeof the first feoffor; for although the estate of the first feoffee, was in its creation, covinous or voluntary, and therefore voidable, yet when he enfeoffed a person for valuable consideration, such person shall be preferred before the last.” In the case cited from our own reports, many English and American decisions are referred to, which establish the principle that “a purchaser without notice from a fraudulent purchaser, is not affected by the fraud.” TSee them at pages, 475-6.]

A bill of exceptions must always be taken most strongly against the party excepting; for the reason that it is supposed to be prepared by his counsel, who has stated the facts as favorably as truth will permit, to the side he represents. In the case before us, it does not expressly appear whether Baker or Mallory was in possession of the land at the time the deed of trust was made to Norris, Stodder & Co. But it is inferrable under the rule stated, that the former was in possession; the more especially as the latter had sold him the land, delivered his deed to be returned to Rockett, and received another to himself directly. This being the case, and the records of the county court showing nothing as to the state of the title between Baker and Mallory, the beneficiaries in'the trust deed are not chargeable with a notice of any claim set up by the latter. In point of fact, he claimed no interest at the time of its execution, whatever might be the legal effect of the deed he had delivered up for cancellation, as between those who had notice of it.

The view wo have taken, proceeds upon the supposition, that the deed to Mallory was not cancelled or annulled by the agrees ment between Baker and himself, but was entitled to the effect •which the law accords to unregistered deeds. In Barrett v. Thorndike, [1 Greenl. Rep. 78,] the court said they knew of two methods only, in which the grantee of lands could voluntarily divest himself of the estate which had vested in him by a conveyance; these wore by a re-conveyance or a will. But they said, if the deed was not recorded, ho might restore it to the grantor; and if this were done fairly, and without impairing or intending to impair the rights of third persons, the transaction would be effectual as between the parties, to revest the estate.

In Holbrook v. Tirrell, [9 Pick. Rep. 105,] the effect of the cancellation of a deed upon the title to real estate, was elaborately discussed at the bar. The court said, “that the mere cancellation of the deed under which one holds title to real estate, does not divest the title or revest it in the grantor, seems to be abundantly settled by the cases cited on the argument, and more particularly by two cases to which we have since been referred by ■^the petitioner’s counsel, namely, 4 Conn. Rep. 550; 5 id. 282.”— Further, that by the deed to the grantee, which was not recorded, the title vested in him as against the grantor and his heirs, but was so far left in the latter, that a conveyance from him to another person, ignorant of the former deed, would pass the estate; and a creditor of the grantor might have acquired a title by a levy upon the land as his. The case cited is directJy in point to show, that by the delivery of Mallory’s deed to Rockett, it was placed-in the power of the latter, either to sell absolutely, or incumber the land in question, and that a bona fide purchaser or incum-brancer, without notice, would have an interest paramount to Mallory. Now, although Norris, Stodder & Co. did not receive their deed directly from Rockett, yet we.have seen that they are to be regarded with quite as much favor as if they did; and having no notice themselves of the previous conveyance to Mallory, they are unaffected by a notice to Baker.

It is needless to examine with particularity, the charges given, or prayed to be given to the jury; if in giving or refusing them, the court erred, the view we have taken of the law, will show, that the error, if any; was beneficial for the’ defendant; and he cannot be allowed to avail himself of it here. The consequence is, that the judgment of the circuit court is affirmed.