Echols v. Derrick , 2 Stew. 144 ( 1829 )

By JUDGE WHITE.

The first inquiry is, whether Derrick, by purchasing the boy- Jim of Royster, without actual notice of Fleming’s lien, -acquired such a title as to render it useless, and therefore prejudicial to Royster’s creditors, for Roundtree to execute the trust in the deeds to him, by the sale of Lewis for the indemnity of Derrick? If this were the case, Fleming’s rights would have been prejudiced without any default on his part. He certainly was authorized to take the deed with the condition it contained, and to permit the property to remain with Royster; nor could it be expected that he should know by anticipation, who Royster designed selling him to; and therefore could not be required to give actual notice to prevent imposition. There is no evidence that he connived at, or even knew oí Royster’s intention to sell to Derrick, before the sale; on the contrary, his conduct after that event, in notifying Derrick, shewed fairness of intention in him, and had the effect to induce the latter to adopt a measure which prevented his ultimate injury. The law did not require Fleming to prove his deed in open Court and place it upon record to give constructive notice under twelve months, and as that time had not transpired when the sale took place, he was in this also without default. We are not then prepared to say that Fleming’s title to Jim could have been destroyed by the establishment of Derrick’s, when Fleming did nothing but what the law permitted, and left undone nothing which it required; nor can we conceive, that the proof and registration of his deed, according to the provisions of the statute of frauds, after the sale, if embraced by them at all, could have answered any efficient or valuable purpose. But it is said, that the deed made to indemnify Derrick against loss, by failure in the title to Jim, not having been proven in open Court, and recorded, could not prevail against Echols, who was a judgment creditor of Royster, though his judgment was subsequent to the date of said deed. This objection is also met by the fact, that the twelve months given by law to prove such deeds in open Court and have them recorded, had not elapsed when the sale under the deed was made. This being done, its force was spent, its design effected by the execution of the trust, and none of the intentions of the law could have been answered by its subsequent proof and registration.- We are therefore’ of opinion, that there was no error in the judgment of th© Circuit Court.

Judgment affirmed.

Judge Saffoid, not sitting.