Wallis v. Rhea , 12 Ala. 646 ( 1847 )

COLLIER, C. J.

When this case was here previously, it was said to be allowable to show that the plaintiffs in execution were informed of the existence of the deed under which the claimant set up a right to the slave in question ; but if the claimant “failed to prove notice, or an excuse for the failure to record the deed, if any other were available, it would of course be inoperative, and it was the duty of the court so to instruct the jury.” [10 Ala. Rep. 451.]

In Cummings & Cooper v. McCullough’s Adm’x, 5 Ala. R. 324, it was said by a majority of the court, that the act of 11th January, 1828, which requires a deed such as that before us, to be registered, is a statute intended for the prevention of fraud, and to give registration effect against creditors and purchasers, it is necessary that it should be made within the time prescribed ; that a deed subsequently recorded, cannot operate to their prejudice. If, however, “ creditors and subsequent purchasers” have notice of the existence of a deed, it will be operative against them, although it was not registered within the time prescribed. [Smith & Co. v. Zurcher, use, &c. 9 Ala. Rep. 208; see also, Daniel v. Sorrells and another, Id. 436.]

There was no evidence that the plaintiffs in execution had actual notice of the existence of the deed to the claimant. The registration according to the cases cited was unavailing to exempt the property'from liability to the execution. Consequently the ruling of the circuit court was conformable ta law, and the judgment is therefore affirmed.