De Vendell v. Doe ex dem. Hamilton , 27 Ala. 156 ( 1855 )

CHILTON, 0. J.

1. Under the facts of this case, we feel no hesitation in holding the judgment of the Circuit Court to be correct.

The statute by which the validity of the deeds under which the defendant claims must be tested, declares that “ All deeds and conveyances of personal property, in trust to secure any debt or debts, shall -be recorded, in the office of the clerk of the county court of the county wherein the person making such deed or conveyance shall reside, within thirty days, or else the same shall be void against creditors and subsequent purchasers without notice; and if any such conveyance be made of real estate, the same shall be recorded, in the office of the clerk of the county court of the county wherein the estate may be situate, within sixty days, or the same shall be void against creditors or subsequent purchasers without notice.” — Olay’s Digest, pages 255-56, § 5.'

It will be observed that this statute uses the same language in respect to deeds of both personal and real property, except that thirty days are allowed for recording deeds of trust of personalty, and sixty days as to real property. If not so recorded, they are equally void as to creditors and subsequent purchasers without notice. The same rules of construction equally apply to each. In respect of personal property, it is well settled, that if a lien attaches in favor of a judgment creditor, before notice of a deed not duly recorded, the purchaser is protected, although, at the time of the purchase, he may have had notice of such deed. — Wallis v. Rhea & Ross, 10 Ala. R. 451; same parties, 12 ib. 646 : Jordan v. Meade, 12 ib. 247 ; Chamberlain v. Adams, in MS., per Dargan, C. J. The same rule, for similar reasons, must apply to ‘deeds conveying real estate. — See Avent v. Read, 2 Stew. 488 ; Mallory v. Stodder, 6 Ala. 801; Daniel v. Sorrells, 9 Ala. 436.

2. As the Bank in this case had, at the time the judgments against Batre & Co. were rendered, and when it acquired a lien on the land, no notice of the deed of trust executed in 1840, and as that deed was not recorded within the time prescribed by the statute, it was void as against the Bank ; and being void as to it, is void as to any one who purchases under the judgment when the land is sold in the enforcement of the lien. The protection of the Bank is extended to the purchaser, otherwise the lien would be rendered ineffectual. Daniel v. Sorrells, 9 Ala. 436, and cases above cited.

3. The deed, being void as against the Bank, could not operate to place the title beyond the lien of its judgment. Batre, notwithstanding the deed, is, as to the Bank, the legal owner of the land ; and the purchaser, who acquires all the title which the law authorized the Bank to sell under its execution, himself acquires.tho legal title.

4. As to the question whether the Bank had actual notice of the deed, and which the appellant’s counsel thinks might be inferred from all the circumstances, it involves an inquiry into a matter of fact, which we can no more revise than if it had been found by a jury ; the court having tried it by consent of the counsel in lieu of the jury. — Malempre v. Etheridge, 18 Ala. 565.

5. Neither can it be maintained that the lien of the Bank was lost by not issuing executions, the judgment itself not having become dormant. — Turner v. Lawrence, 11 Ala. 426 ; 20 ib. 427 ; 12 Wheat. R. 177.

6-7. Nor was the judgment rendered dormant by the acts of the general assembly putting the Bank in liquidation. The power to proceed to collect in the name of the Bank was expressly reserved to the assignees, or trustees, appointed to settle its affairs ; and authority given them to dispose of the judgment by sale and assignment is an implied power conferred by the act on the purchaser to have execution of it. Where a sale is required to be made, the right to enjoy the purchase and render it available to the purchaser passes as an incident. Again — -The statute should receive such construction as would carry out the design of the legislature in its enactment; It could not have been the design of the legislature to depreciate the assets of the Bank, by changing their character, and destroying liens which may have attached for the satisfaction of them, by rendering judgments dormant as soon as sold, and putting purchasers to the expense of new proceedings for their revival. This expense would, of course, lessen their value to the Bank. The enforcement of a judgment, already obtained in the name of the Bank, is unlike the institution of a new suit to recover upon the assets of the Bank, which, as we have decided, can only bo done in the name of the Bank by the trustees appointed to take charge of the assets. — Jemison v. Planters & M. Bank, 17 Ala. 754.

8. It is objected by appellant, that there was no proof of the demand on which the judgment was rendered. The answer is, that no such proof is required of lire purchaser under execution. He produces his sheriff's deed, and the record of the judgment and execution conferring upon the sheriff full authority to make the sale. This is sufficient to pass all the legal title the defendant in the execution had at the time the judgment was rendered.

Whether the appellant would not, as against such purchaser, be required to prove the existence, and bona fides of some of the demands provided for in the trust deed, before it could avail him, is a question it is unnecessary to decide ; for the view we have taken above is conclusive of the case in this court.

Let the judgment be affirmed.