Mayor of Baltimore v. Williams , 6 Md. 235 ( 1854 )

Eccleston, J.,

delivered the opinion of this court.

This is an action for money had and received, instituted by the appellees to recover from the Mayor and City Council of Baltimore the amount of damages assessed in favor of the owner of a lot of ground lying in that city, which damages resulted from the opening of a street. The defendants admit the money to be in their hands, but decline paying it over until it is ascertained who has the right to receive it. The real controversy is between the plaintiffs and Daniel B. Banks.

This lot was formerly owned by Hannah K. Chase, now deceased. On the 2nd of August 1844, whilst she was thus owner of this lot, she executed a deed of all her property to the plaintiffs, and their heirs, executors and administrators, to be held by them in trust, to suffer and permit the said Hannah Kitty Chase and her assigns, for and during the period of her 'natural life, to have, hold, use, occupy, possess and enjoy all and singular the estate, chattels, effects and property, and the rents, issues, income and profits thereof, during that period, to receive and take, and the same to apply to such uses and purposes as she might think proper. “And from and immediately after the decease of the said Hannah Kitty Chase, then in trust for the several and same uses and trusts, and under and subject to the like powers, limitations, restrictions and conditions as are mentioned, expressed and declared of and concerning the estate and property generally, mentioned in and devised by the last will and testament of the said Hannah Kitty Chase to the trustees therein named; and in and by the three several codicils by her made to said will.” Then giving the date of the will and the dates of the three codicils.

On the 28th of January 4845, Mrs. Chase executed a deed to Wm. A. Talbott, conveying to him and his heirs, executors and administrators, all her estate and property of every kind; to have and to hold the same to the use of the said Wm. A. Talbott, his heirs, &c., in trust during the life of Mrs. Chase, to collect and receive the rents, dividends, issues and profits, and to apply'the same, first to the payment of her debts, then to her own use, and as she might direct in writing. And after her death, then in trust as to the whole of said estate conveyed, “for the uses, ends, intents and purposes set out and declared” in her last will and testament, and the several codicils thereto executed by her, and referred to in the deed of trust from her to the plaintiffs.

By a deed dated the 14th of September 1847, Mrs. Chase conveyed to Daniel 13. Banks, in fee, the lot of ground upon which the damages in controversy were assessed; which assessment was complete on the 29th of October 1847, and the amount thereof, being $818.66, was on that day in the hands of the defendants. Mrs. Chase died on the 2d of March 1848.

Talbott makes no claim to the sum in dispute; but Banks, through the defendants, resists the right of the plaintiffs to recover, and claims the money under his deed.

Before we look to the bill of exceptions, we deem it proper to examine the two principal grounds on which the claim of the plaintiffs has been resisted.

The first is, that notwithstanding the deed to the plaintiffs, there still remained in Mrs. Chase a power of revocation which enabled her, at any subsequent time during her life, either by will or by deed, to dispose of all or any portion of the property embraced by the deed of 1844, and the previous will and codicils, and that consequently the deed to Banks was a revocation pro tanto.

The second is, that if no such power of revocation existed, yet the plaintiffs’ deed, being merely voluntary, was void as against Banks, whether he had notice or not, he being a subsequent purchaser for value.

In support of the views entertained by the counsel for the appellants, in regard to the first point, reference is made to Sir Edward Clere's case, 6 Coke's Rep., 19; the Earl of Ormond’s case, Hobart's Rep., 348; 1 Dyer’s Rep., 49, b; and 3 Dyer's Rep., 314, a.

The principles settled in the first of these cases are, that if a man seized of land in fee, makes a feoffment to the use of such persons and for such estates as he may appoint by his will, by operation of law the use vests in the feoffor, and he has a qualified fee until the use is declared according to the power. A feoffment made to the use of the feoffor’s last will, gives him the use in the mean time. And if in. such a case, by his will, he limits estates according to the power, the estates will take effect by force of the feoffment, and the use is directed by the will, so that the will is but declaratory. But if the feoffor devises the land as owner thereof, without reference to his authority, it will pass by the will, because he had in him a devisable estate, as well as power to limit the uses, and therefore might do either, at his pleasure.

It is not necessary to examine, with any minuteness, the principles involved in the Earl of Ormond's case, because the decision in that case, if indeed it can be called a decision, can have but little if any influence in favor of the appellants. It appears that the case was referred by the King to the two chief justices, Montague and Hobart, and Justice Doddrige. Montague did not think the instrument under consideration was revocable, the other two judges held that it was. This case being referred to in Bath vs. Montague, Lord Holt said: “ I do. not take that opinion of the two judges, Hobart and Doddrige, there delivered, to be law; and there were other two judges, Montague and Hutton, that were of another opinion, and others were of their mind, and it did not come to a Judicial resolution.” This remark of Lord Holt, especially in reference to the number of judges who differed from Hobart and Doddrige, has been found fault with by the counsel for the present appellants. It is said to be an error in Lord Holt,, or else the reporter has not given his language correctly. In-support of this idea, reference has been made to. the opinion of Baron Powel, in Bath vs. Montague, where he speaks of' the opinion of two judges against one. But in this he does, not refer so much to the decision of the case - as he does to¡ the reasons assigned by the two judges on one side, and by-Montague on the other. Be this, however, as it may, it is manifest from the concluding paragraph of the report, as given by Hobart himself, Lord Holt’s statement was correct, that Hutton and other judges concerned with Montague in opposition to the views of Hobart and Doddrige. The parties-having bound themselves to abide by the King’s award, the-case.was referred to Hobart, Montague and Doddrige. When-it was ascertained that they differed in opinion, the King consulted Hutton and other judges, who agreed with Montague. And Mr. Srngden, as well as Lord Holt, states that the point in question was not decided. 1 Sugden on Pow., 273. Mr. Atherly, in his work on Marriage Settlements, at page 183, in 27 Law Lib., speaks of this case in the following manner a “ In Lord Qrmondss case, indeed, it is said to have been held, that a voluntary settlement might be revoked without any express power for the purpose; but this case is clearly overruled.” See 1 Vern., 101, Villers vs. Beaumont, and thecases referred to in the notes to that case.

The first case in Dyer is thus briefly stated: “In the eighteenth year of the now king, a man made a feoffment to perform his last wifi, and his wifi was annexed to the charter of feoffment, and livery of seizin thereupon made accordingly, and it was adjudged that he may alter and revoke this will, although it took effect upon the livery,” &e.

This decision is not consistent with the principle adopted in Hussey's case, Moore's Rep., 789, and referred to in Bath vs. Montague, at page 99. There a will was made devising a manor, and subsequently the party made a feoffment of the manor for such persons and for such estates as he had declared by his will, referring to the will by its date. It was held that the will was revoked, but yet it was a sufficient declaration of the uses. This we understand as deciding that the feoffment operated as a revocation of the ambulatory or revocable character of the will, but the reference to it by the feoffment made jt a good declaration of uses. Consequently the dispositions of the estate in the will became operative by virtue of the feoffment, and were dependent upon that for their efficacy. The revocation spoken of in the report, did not mean such a revocation of the wifi as rendered it a perfect nullity in every respect, for it appears the feoffor was a bastard, and although the feoffment was decided to be a revocation of the will, yet it remained good as a declaration of uses, so that there was no escheat to the crown. Thus it seems that by connecting a will already in existence with a feoffment, by a reference to* the will in the manner stated, it does not impart its changeable character to the feoffment, but, by the connection, becomes as stable as the feoffment itself.

According to the report of the second case in Dyer, “a man by his deed indented and sealed,” after reciting that he had suffered a common recovery against himself of certain lands, upon trust and.confidence, “to the intent of performing his will touching the disposition of the said lands,” declared that, “first, he willed that his said feoffees and their heirs should suffer him to have and receive” the annual profits during his life, and then declared other uses to take effect after his decease. The question being whether, during his life, he might alter and change the uses limited in the indenture, the report states; “And it seems to me that he may well alter this will, for will and last will are understood to be all one; and this recovery was to the intent to perform the will, and this indenture is as a will, which is alterable; therefore it is not a limitation of uses upon livery made, according to the nineteenth year of H. 8, [11 a, pi. 5.] And other jusfices agreed to this opinion.” If therefore it was not a deed but a will, there could be no doubt of its revocable character., Mr. Sugden thinks the point was taken for granted, that the instrument, notwithstanding its form, was but a will; as Dyer and other judges held the party might “alter his will, for the deed was quasi a will, which is changeable.”' 1 Sugden on Pow., 274, in 15 Law Lib., 147. In adverting to this case, Lord Ch. Justice Treby, in Bath vs. Montague, said the instrument was a will, for though in form an indenture, yet when it says “he wills so and so, after he had recited a power to declare by will, this must be taken for a will.” But if it is to be considered a deed, then the decision is in direct conflict with Broad’s case, in Lea., 39, referred to by Lord Holt in Bath vs. Montague, at page 100. There a man levied a fine to the use of such persons and for such estates as he should appoint by his last will. After this he covenants to stand seized of the lands to the use of his second son and his heirs, and then made a will disposing of the estate according to the power. In a controversy whether the claim under the deed or that under the will should prevail, it was held that the deed, although a covenant to stand seized, should take effect, and that the will, although made according to the power, carne too late to execute it. See also Hatcher vs. Curtis, 2 Freeman’s Rep., 61.

In Bath vs. Montague, 3 Chan. Cases, 55, a will was made in 1675 by the Duke of Albemarle, giving parts of his estate upon his dying without issue to several persons, but the bulk of his estate he gave to the Earl of Bath. In 1681 the duke executed a lease and release, reciting in the latter the will. But although the recital differs from the will in some degree, it is stated to be the design and intention of the deed to dispose of the estate as it was disposed of in the will. And the reason for disinheriting the heir at law is said to he because he was a regicide. Then the deed disposes of portions of the estate to certain persons, but the main part of it is settled upon the Earl of Bath; the deed reserving to the Duke of Albemarle the power of revocation at any time, upon the tender of a shilling, by writing under hand and seal in the presence of six witnesses, three of whom were to be peers of the realm, and then to limit new uses. In 1687 the duke executed a will making quite a different disposition of his estate. This will was attested by three witnesses only, not one of them being a peer. Of course it was not a writing in accordance with the power of revocation contained in the deed. But it was contended that the deed of 1681 was revocable as a will, irrespective of the express power contained in it, because it related to a will. Very elaborate opinions were given by Lord Keeper Somers, Chief Justices Holt and Treby, and Baron Rowell, deciding unanimously that the will could not operate as a revocation. Lord Ormond’s case, and the two cases in Dyer, already mentioned, were cited and commented upon, but were not considered as authorizing the judges to hold that the deed of 1681 was revocable as a will. And notwithstanding these cases, the judges refused to sustain the argument which seems to have been pressed upon them, that the deed depended upon the first will, was ancillary to it, and leaned upon it, and therefore the second will revoked the first and the deed likewise. To maintain that a deed reciting a will, and saying it is made to confirm the will, is revocable in its nature, in equity, as a will is at law, is spoken of by Lord Holt as a notion that he never heard started before. And he condemns the idea that a deed is revocable because if relates to a will, as being a contradiction to the nature and essence of a deed; for a deed takes effect immediately upon the sealing and delivery, and cannot be altered or revoked by the maker, unless it contains a power of revocation, and then only according to the power. On page 99, after noticing the case in Dyer, 49, Lord Holt says: “But if a man make a a deed of feoffment, and says it shall be to the use of such persons and for such estates as in his will, or as he shall give according to the will, there, though the will doth mention the names and limit the estates, the uses do not arise by the will, but by the deed, for though the will be no part of the deed, yet when the deed doth refer to the will, and the will hath limited the estate, it is as much as if all the limitations had been comprised in the deed.” On the question as to the revocation of the deed, all the judges united in the conclusion of Lord Holt’s opinion; and his reasoning on the subject was also sanctioned and adopted by the Lord Keeper, who said: “But my lord chief justice has so fully and clearly answered that matter, that I shall not need trouble you with saying any more in it. The cases cited about it are in no sort applicable to this case.”

But the counsel for the appellants insist, that the case just referred to cannot properly have much, if any, influence in deciding the one under consideration, because, here, the deed simply refers to the will and the codicils, but does not recite or contain within it the dispositions of the estate mentioned in the will and codicils, whilst, there, although the deed was made to confirm the will, it nevertheless contained wdthin itself the actual limitations of the estate, some of which differed from the will to some extent.

Since the case of Maccubbin vs. Cromwell, 7 G. & J., 157, we suppose it will not be seriously contended that where a deed conveys land in trust for such uses and trusts as are contained in a will, or other instrument, properly described or referred to, the uses and trusts do not take effect. And if they do, it must, of course, be by virtue of the deed. And as deeds in their nature are not changeable, where they contain no power of revocation, if the reference is to a will as containing the uses of the trust, the deed lakes away or abolishes the changeable nature of the will, unless the provisions of the deed indicate a different intention on the part of the grantor. This view is certainly correct, if Lord Holt is right, as we think he is, in saying that “when the deed doth refer to the will, and the will hath limited the estate, it is as if all the limitations had been comprised in the deed.” And this being so, we do not think the distinction between the two cases, which has been urged with much ingenuity, can avail the appellants to render the case of Bath vs. Montague of no influence on the present occasion.

That decision has been assailed by the appellant’s counsel as void of authority, because the Chancery Cases are said to be very incorrectly reported. It is true that judges, and some of the elementary writers, have so spoken of them, but Chancellor Kent says: “The great case of the Duke of Norfolk, and the case of Bath vs. Montague, at the conclusion of the Cases in Chancery, are distinguished exceptions to this complaint, and those great cases are fully and very interestingly reported.” 1 Kent's Com., 492, marginal page, (7th Ed.)

We have been referred to 1 Sugden on Pow., 484, in 15 Law Lib., and 2 Ibid., 14, 15, in 16 Law Lib., in support of the principles contended for by the appellants. But we do not perceive any thing in these references which can establish the proposition, that either the deed or the will in this case is revocable. On page 484 of the lsi VoL, it is stated, that as a general rule a will is in its nature revocable, and when a pow'er is executed by will an express power of revocation is not necessary to be inserted, but it may be revoked, and the original power re-executed toties quoties. That when a power is executed by deed, a power of revocation and new appointment may be reserved, allhough the instrument creating the power does not in express terms authorize it. And such powers may be reserved toties quoties. But it will be seen on page 485, that when under a power an appointment is made by deed, it cannot be revoked, unless an express power is reserved in the deed executing the power.

On page 14 of the 2d VoL, the writer speaks of the peculiar operation of a will made in execution of a power. In most respects it possesses the charactef of a will, whilst it operates as an execution of the power. Here again is repeated what is said in the first volume in relation to the irrevocable character of a deed executing a power where no power of revocation is reserved in the deed. Then it is said: “But this does not hold good as to a will, for although in truth it is not strictly a will, but simply a declaration of use, yet it so far retains the properties of a will as to be ambulatory till the death of the testator, and consequently revocable without any express power reserved for that purpose.” In .support of this several authorities are referred to in note b, all of which we have examined, and all of them are cases in which wills, or instruments held to be quasi wills, had been made in execution of powers previously created. Neither of the cases was similar to the present, where the deed refers to a will or other instrument already in existence.

After a very careful examination of the authorities, we think that unless, under some peculiar circumstances, when a deed conveys lands in trust for such uses as are declared, or set out in a will already made, neither the deed or the will is revocable, if no power of revocation is reserved in the deed. And when a deed conveys lands in trust for such uses as the grantor may afterwards appoint by will or deed, if the appointment be by will, then the will may be revoked and new uses declared. But if this power is executed by such an instrument as may properly be considered a deed, and not a testamentary paper, then the appointment cannot be revoked, provided the deed executing the power reserves no authority to revoke.

In has been said, that instruments in the form of deeds are frequently held to be testamentary papers, and, as such, subject to revocation, and that the instrument now before us should be so considered, because it limits the estate to the use of the grantor for life, and then in trust for the uses in the will and codicils, which can only take effect, beneficially, after the decease of the grantor, as they would by a will. In 1 Sug. on Pow., 275, it is said to have been well settled, that if the instrument executing a power is testamentary in its nature, the mere circumstance of its being in form a deed, sealed and delivered, will not prevent it from operating as a will. The writer then adds: “But it will not be deemed testamentary merely because the limitations, from their nature and the state of the settlement, cannot take effect until the death of the appointor.” See 2 Sim. Rep., 95, in 2 Eng. Cond. Ch. Rep., 354, Hougham vs. Sandys, and 9 Gill, 440. It may be proper to remark, that Mr. Sugden i§ here treating of the nature of instruments executing powers previously created. In note 1, on the page just referred to, the decision in the Attorney General vs. Jones, 3 Price, 368, is noticed. There three judges against Wood, Baron, held that a voluntary deed assigning leasehold and personal estate, securing to the grantor a life estate and the property to others'after his death, with a power of revocation, which he confirmed by his will, was a testamentary instrument within the stamp act. This note speaks of the opinion of Mr. Baron Wood as being undoubtedly sustained by the profession. In the more recent case of Tompson vs. Browne, 3 Myl. & Keene, 32, in 8 Cond. Eng. Ch. Rep., 264, the deed was for the purpose of securing to the grantor dividends of stock for his use during his life, and disposing of the stock to others after his death. The deed also contained a power of revocation. This was held not to be a testamentary paper. And Sir C. C. Pepys, (then Master of the Rolls, but subsequently Lord Chancellor Cottenham,) in speaking of the case of the Attorney General vs. Jones, says: “If there be any thing in that decision to support the notion that where a person by deed settles property to his own use during his life, and after his decease for the benefit of other persons, a power of revocation reserved in such a deed alters the character of the instrument and renders it testamentary,, and consequently subject to legacy duty. I can only say that, if this were law, a great number of transactions of which the validity has never been doubted, would be liable to be impeached.” See what is said in reference to the two last mentioned cases, in 1 Jarman on Wills, from page. 14 to 19, inclusive, (2 Jlmer. Ed.)

The present deed is not one executing a power, nor does it contain a power of revocation, but is to confirm a will previously made. If it must be regarded as a testamentary instrument, and therefore revocable as a will, it is difficult to perceive what motive could have induced its execution. Without it, the grantor was in the same situation as, she was with it, under such a construction.

Holding these views, we do not think the plaintiffs’ claim can be successfully resisted upon the ground which we have been considering as the first objection to it.

The second ground of objection to the claim of the plaintiffs, which we are to consider,-arises under the statute of 27th Elizabeth, ch. 4. Under its provisions it has been settled beyond controversy, in England, that a voluntary deed is void as ag.ainst a subsequent purchaser for value, whether he purchased with or without notice. This question has been the fruitful source of much controversy,, and has produced' many conflicting, decisions. But the better American doctrine seems not to be. in unison with the established construction of the statute-at Westminster Hall. 4 Kent’s Com., (7 Ed.,) Margl., pages 463 and 464, and note a, page 464. 1 Story’s Eq., secs.-426 to 433, and note 1 to sec. 426. And wdth a view to avoid the influence of American decisions, the appellants’ counsel insist that in this State the English doctrine must prevail, because of the provision in our constitution in reference to the adoption of the common law,, and the statutes which were in. force here at the commencement of the American Revelation. This is a correct position, if by the English doctrine which is to prevail here, is meant such as was settled by judicial ■decisions previous to our separation from the British empire. And this renders it necessary to ascertain whether, at that time, the construction of the statute had been settled according to the views entertained by the appellants. Thife subject was examined by the distinguished Chief Justice Marshall,in Cathcart vs. Robinson, 5 Peters’ Rep., 280. He concedes that the received construction of the English statutes,, at the time of the Revolution, may very properly be considered, as accompanying the statutes themselves, and forming an integral part of them. But subsequent decisions, although entitled to great respect, aré not to be received as absolute authority. It is the opinion of the court, as expressed by the chief justice, that the construction Of the statute of 27th Elizabeth was not settled in England before, but subsequent to, the year 1776. After speaking of contrariety and ambiguity in the old .cases, it is said; “But this court conceives that the modern decisions, establishing the absolute conclusiveness of a subsequent sale, to fix fraud on a family settlement made without valuable consideration — -fraud not to be repelled by any circumstances whatever — go beyond the construction which prevailed at the American Revolution,- and ought not to be followed.”

It is likewise said; “The universally received doctrine of that day unquestionably went as far as this. A subsequent sale without notice,- by a person who had made a settlement not on a valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burthen of proving that it was made, bona fide.” And this is the principle of construction which the court adopted, as applicable to the case before them.-

To hold that, with notice to the purchaser,- the settlement is subject to the presumption of fraud, simply in consequence of the subsequent conveyance for value, we think is not required by the language of the .statute,- and is inconsistent with correct moral feeling. It permits a subsequent purchaser to be knowingly instrumental in disappointing just and honest expectations, based upon a voluntary deed or settlement, unaffected by the slightest taint of fraud at the time of its execution. We therefore do not hesitate to follow the decision of the Supreme Court rather than the modern English decisions. But it has been insisted that the interpretation of the statute has been so far settled by our own courts, that we are not authorized to follow the principle laid down in Cathcart vs. Robinson. The case of Bohn vs. Headley, 7 H. & J., 257, is the one referred to in support of this view. The deed upon which the controversy in that case arose, was a transfer of personal property alone. In the court below, Judge Archer held that the deed was not embraced by the statute of 27th Elizabeth, because it did not convey or profess to convey real estate. It is true, he expresses the opinion that since the determination in the case of Doe on the demise of Otley, vs. Manning, 9 East, 59, it may be considered as a settled principle, that a subsequent purchaser may treat a prior voluntary conveyance as a nullity, although he had notice of the precedent conveyance. But it will be seen that the judge intimates his doubt as to the reasonableness of the principle, and only speaks of it as settled since the decision in Doe vs. Manning. That case having occurred long since the Revolution, Judge Archer’s opinion does not militate in the least against the correctness of the view taken by the Supreme Court, that the construction of the statute was not settled prior to 1776. It is also evident that the point was not decided by the Court of Appeals. They dispose of it in a very summary manner, by simply saying, in reference to the deed, “It is not a conveyance of lands, tenements or hereditaments, and therefore not a case embraced by the provisions of the statute of 27th Elizabeth.” Admitting that Judge Archer’s opinion is a recognition of the English construction, yet as the point was certainly not involved in the case, and the Court of Appeals declined making any decision upon it, notwithstanding our high estimate of the judicial character of the judge, we do not feel either bound or authorized to adopt his views on the present occasion, in opposition to the decision of the Supreme Court upon the very question now before us. And more especially so as the principle of that decision has been approved of and adopted in many of our sister States.

The Supreme Court admit the doctrine that a subsequent sale, without notice, by a person who has made a prior voluntary settlement, is presumptive evidence of fraud, which casts upon those claiming under the settlement the burden of proving it to have been made bona fide. But the court find fault with the recent English doctrine, which asserts that a subsequent sale with notice to the purchaser that the prior voluntary settlement had been made, is also presumptive evidence of fraud. Whether the notice in such cases must be actual, or may be constructive, it is not necessary for us to decide at present, as we understand the prayers to be based upon actual notice.

From w’hat has been said it will readily appear, that we think the plaintiffs’ first prayer was properly granted, upon the evidence in the case. It asserts the proposition, that if the jury should find from the evidence, that the property condemned by the city was the property of Mrs. Chase at the date of the deed to the plaintiffs, and that the said deed was bona fide executed and recorded prior to the deed to Banks, and that he had actual notice of the plaintiffs’ deed prior to the execution of his own deed, then Banks cannot be considered a bona fide purchaser without notice, so as to defeat the claim of the plaintiffs.

The second prayer of the plaintiffs asks the court to instruct the jury, that if they should find the deed to Banks was understood and intended by Mrs. Chase, when executed, to be only a security for money advanced by him, and that she was deceived and imposed upon in executing the same, with the knowledge, privity or consent of Banks, then the deed is void.

This prayer has been resisted, upon the ground that there is no evidence to support it. We are not now sitting as a court of equity, to decide whether the evidence or circuíastances relied upon by the appellees can be sufficient to establish the allegation of fraud, and consequently we are not called upon to say whether there is proof enough for that purpose. But the instruction asks a court of law to submit a question of fraud to the jury; and although we might believe the evidence not strong enbugh to require the jury to find the fraud, yet if there is any evidence legally tending to prove it, such a prayer could not properly be rejected. We think there is such evidence in this case, and therefore cannot reverse the decision on this point.

The plaintiffs’ third prayer is, that if, after the deed to them, the deed to Banks was executed by Mrs. Chase, and that Banks took the deeds from Mrs. Barney and Mrs. Oldfield, as indemnity to him against the deed to the plaintiffs, then the defendants cannot rely upon the deed to Banks t© defeat the title of the plaintiffs.

In the record it is stated, that “the plaintiffs further proved, that said Banks also received two deeds from Mary Barney and Catharine C. Oldfield, which are as follows;” Then is inserted a mortgage for $600 from Mrs. Oldfield to Banks, dated the 14th of September 1847, and acknowledged the same day in the city of Baltimore. After which follows a mortgage from Mrs. Barney to Banks for $900, dated the 24th of September 1847, and acknowledged on the same day in the State of Ohio. Each mortgage payable in three years from its date, and each stated to be for money lent by Banks. And immediately after the last mortgage the bill of exceptions proceeds thus: “And that said two deeds were executed upon no other consideration than as an indemnity to said Banks against the said deed from said Hannah to plaintiffs, for any loss he might sustain in the advances, which it was proved by defendants were made by him for said deed to him from said Hannah, but not to the full amount of the consideration therein recited. And further proved, that said Banks agreed with said Mary Barney and Catharine C. Oldfield, before and at the date of said deeds, that he would not enforce tbe said deeds, or either of them, until he had vindicated the validity of the deed to him from said Hannah, as against the deed to the plaintiffs, in all the courts to which the same could be taken.”

In Atherly on Marriage Settlements, 198, when treating of the effect of notice upon a purchaser claiming adversely to a voluntary settlement, it is said: “ If he has not only notice, but takes an indemnity against the settlement; there, it is clear, he •will be bound by the settlement, for, by taking the indemnity, he showed that he did not rely upon the statute, but upon his indemnity.” And in support of this principle reference is made to Jennings vs. Selleck, 1 Vern., 467.

Under this authority, and with the testimony in the case, we see no error in the granting of this third prayer. The proposition it contains is, that if Banks took the mortgages as indemnity against the plaintiffs’ deed, then their deed is not void as to him. In this is necessarily involved actual notice to Banks, for the jury could not find that Banks took the mortgages to indemnify him against the prior deed without also finding that he had knowledge of that deed. How could it be said he took the mortgages to indemnify or save himself harmless against a particular instrument if he did not know of its existence? Although the mortgage fiom Mrs. Barney is dated subsequently to Banks’ deed from Mrs. Chase, yet that deed and the mortgage from Mrs. Oldfield were executed and acknowledged on the 14th of September 1847, and were both received by the clerk to be recorded the day after, at half-past twelve o’clock, M. In Peacock vs. Monk, 1 Ves., Sen., 133, in regard to a will and a deed, Lord Hardwicke said: “Both instruments being done at the same instant, (as it must be taken, being on the same day.”) There, it is true, the two instruments were executed by the same person. Here they are to the same individual, and proof is given tending to show they are in reference to the same subject matter. And the prayer does not, as was supposed by the appellants’ counsel, submit the proposition, that if the jury bqlieved the mortgages were taken by Banks, that alone was sufficient to establish the fact of notice tp him of the prior dped, so as tp render his deed inoperative; but, that if the jury believed he took the mortgages as indemnity against the plaintiffs’ deed, then his deed could not be relied upon by the defendants as against the title of the plaintiffs. With the evidence before them on the subject of indemnity, the jury could not well have come to the conclusion that Banks took the mortgages as indemnity, without also believing that he then had knowledge of the prior deed. And, in our view of the law, if he had actual knowledge, the voluntary conveyance was thereby relieved from the presumptive or prima facie evidence of fraud, arising from a subsequent conveyance for value. We therefore think the prayer may be sustained upon the ground of notice, necessarily involved in the proposition .submitted in it; even admitting there should be a doubt as to how far it is right in reference to the effect of the mortgages considered merely in the light of indemnity, irrespective of the question of actual notice.

The fourth prayer of the plaintiffs is: “If the jury believe from the evidence aforesaid, that the deed read in evidence from Hannah K. Chase to Banks was made colorably in form of a sale between the parties, with a view to defeat or overreach the prior deed to the plaintiffs, of which said Banks at the time had notice, then said deed to said Banks is void as against plaintiffs, provided the jury find that the consideration paid by said Banks for said deed to him, was inadequate to the true value of the property thereby conveyed, under the circumstances, at the time of executing said deed.”

This prayer has been assailed on two grounds: — First, because there is no evidence of fraud; and secondly, because the proviso assumes inadequacy of price as a ground on which the jury might invalidate the deed to Banks.

What we have said in connection with the second prayer on the subject of fraud, is equally applicable to the first portion of this, and will suffice to show we do not consider the first objection a valid one. In regard to the second, we do not understand the prayer as asserting that inadequacy of price, per se, is sufficient to invalidate Banks’ deed; but it is relied upon as a circumstance, in addition to the fraudulent contrivance previously alluded to. It is manifest, from the construction of the prayer, that the jury are required not only to find that the deed was made, colorably, in form of a sale, to defeat the deed of the plaintiffs, of which Banks had notice, but also to find that the consideration paid by him was inadequate to the true value of the property.

It appears in Roberts’ Fraud. Con., 371, that inadequacy of price alone is not sufficient to invalidate the deed. But this writer says: “When it has prevailed as an objection, it has generally been coupled with corroborating circumstances of evidence, (in which light notice may be of importance,) indicating contrivance and collusion between the seller and purchaser to overturn the precedent conveyance.” On page 273, Mr. Roberts states, “that gross inadequacy, amounting only to a colorable consideration, is singly sufficient to negative the pretensions of a purchaser to the benefit of the statute.” In Hicks vs. Hicks, 5 G. & J., 86, the value of the property was supposed to be from §2000 to $2500, and the price given being §1600, the court did not consider it such an inadequacy of price as would induce them, in the absence of corroborating proof, to treat the sale as a fraud. They say, however: “It is a circumstance to be weighed in the consideration of the subject, but it is not, unsupported, to overbalance many others that indicate an honest and fair negotiation between the parties.”

These authorities clearly establish the principle, that inadequacy of price, in connection with other sustaining proof, may be considered in a question like the present.

The court would have been authorized to instruct the jury that the deed was void, if they believed the matters set out in the prayer, exclusive of the proviso, if such an instruction had been asked for. Adding in the proviso a circumstance quite legitimate for the consideration of the jury, in connection with the matters previously submitted to them, surely cannot vitiate the prayer. By it the plaintiffs cast upon themselves wn unnecessary burden, for it required them to establish, to the satisfaction of the jury, not only the fraudulent contrivance, with notice to Banks of the prior deed, but the inadequacy of price also, before'Banks’ deed could be considered void; whereas its void character might have been found without adverting to the inadequacy of price, if that had been omitted in the prayer.

Note by the,Reporter. — Since' the above case was argued and decided, the unreported manuscript case of Warren and others’ lessee, vs. Richardson and wifej et. al.-, has been discovered, in which the statute of 27th Elizabeth, ch. 4, was construed by the former Court of Appeals for the Eastern Shore, in the year 1837, and the construction placed upon it in the present case is there fully sustained. The facts of that base are briefly these: Isaac Warren, by deed of the 29th of August 1812, recorded on the same dayr in consideration of natural love and affection, and of five shillings, current money, conveyed to his four infant sons a tract of land in Worcester county, containing one hundred acres, reserving to himself the full use and enjoyment of the sam'e for the support of himself and his three daughters, until the latter should severally attain the age of sixteen years. In 1815, Warren sold the land to Isaac Franklin, for $1500. The purchaser took possession, but died before paying the purchase money, or obtaining a deed therefor, leaving a will by which he devised the land! to hi's two daughters. Franklin’s executor a'fterwa'rds paid the purchase money to'Warren, who then, by deed of the 24th- of May 1816, conveyed the land' to the said daughters, the devisees thereof, who took and retained possession of the same. In 1831, after the death of Warren, three of his said four sons, and the heirs at law of the other, wh'o had died intesta'te, brou'ght ejectment for the land, claiming the same under the deed from their fa'ther to th’emyof the 29th August 1812. The case was tried in Worcester county court, before Marlin, C. J., Spence and Tingle, A. J. In the course of the trial several exceptions were taken by the plaintiffs, only two of which, the second and third, need be rioticed. Second Exception. The defendants,- who were the grantees in the deed of the 24th of May 1816, and their husbands, asked the court to instruct the jury that if they find from the evidence that the defendants and those under whom' they claim »r« m-v.-.ha'sers for a bona jide and valuable consideration uí the land in dispute from Isaac Warren, and have been in possession thereof from the time of the said purchase to the present, and that the deed from him to his infant children, dated the 29th of August 1812. was passed without any other consideration than natural love and aifection, and the nominal sum of five shillings, as therein expressed, “ thou the same deed is voluntary, and by operation of law fraudulent and void against the defendants and those under whom they claim as subsequent purchasers for a bona fide and valuable consideration, and that the jury ought to find for the defendants:” which direction the court gave, and the plaintifls excepted.

It is hardly necessary to say, this latter portion of the prayer is not vicious for want of evidence to sustain it.

In reference to the two prayers of the defendants, we think it sufficient to say we concur with the court below in the propriety of their rejection. They are inconsistent with the principles which we have already expressed as being applicable to this case.

Judgment affirmed.

Third Exception The plaintiffs then asked the court to instruct the jury, that by' the deed of August 1812, there was an interest, estate and right in the land mentioned in said deed, existing in said Isaac ‘Warren after the execution thereof, as against the grantees therein. This direction the court gave. They then further prayed the court to instruct the jury, that by the deed of May 1816, ho interest in the said land passed to the grantees therein, except the legal title and interest which said Warren had left in him in said land at the time of the execution thereof, and therefore the said last men-, tioned dead is not a deed or conveyance within the meaning and intention of the statute of 2,'tth Elizabeth, ch. 4, and therefore tile jury ought to find a verdict for the plaintiffs. This direction the court refused to give, but were of opinion and instructed the jury as in the plaintiffs’ second exception ; and to this ruling the plaintiffs excepted, and the verdict being in favor of the defendants, appealed. The cause was argued before the Court of Appeals for the Eastern Shore, at its June term 1835, before Buchanan, C J., Stephen, JJrcher and Chambers, J. D. Williams, for the appellants, argued that the instruction granted by thq court below goes to the full extent of the decision in Doe vs. Manning, 9 East, 59, and that that case having been decided since our Revolution, was not a binding authority in this State. That in order to make a voluntary conveyance void against a subsequent purchaser within the statute of'27th Elizabeth, ch. 4, it must be covinous and fraudulent, and not. voluntary merely, lie relied upon the ease of Catkeart vs. Robinson, 5 Pet., 280, to show that, up to the period of the American Revolution, the authorities in England, upon the construction of this statute, went only to the extent that a subsequent sale to a bona fide purchaser without notice, by a person who had made a voluntary settlement, was presumptive evidence of fraud, which threw on those claiming under such settlement the burthen of proving that it was made bosta fule, and that, the decisions subsequent to the Revolution go to establish the absolute conclusivencss of a subsequent sale, to fix fraud on a voluntary conveyance made without a valuable consideration, and tnat the former and not the latter doctrine was that, by which the courts of this Elate should be governed. Irelfig Spence, tor the appellees, argued that the deed from Warren to his children was voluntary and void by the statute of ‘Xlth Elizabeth, eh. 4, which made effectual the last deed to the [franklins. He cited the various English, authorities upon the subject, and relied especially upon the case of Doe vs. Manning, 9 East, 59, as to the construction of the statute, and fully sustaining the principles advanced by Roberts, in his work on Fraudulent ("oucei/nnces. In reference to the case of Cathcart vs. Robinson, he said he was willing the whole doctrine advanced there should be applied to this case; that the party there who avoided a voluntary conveyance to give effect to one for valuable consideration, was “without notice," and so were the appellees here; that if it was said the deed from Warren to his children was recorded, so was the deed-, from Cathcart to Woodside in trust for Mrs. Cathcart in that case. The court (Chambers, J., dissenting,) reversed, the judgment of the county court and awarded a procedendo, and in their directions to the clerk to enter the judgment, which were sent from Annapolis on llic 14th of February 1837, they say : “ We dissent from the county court in their opinion and directions in the plaintiffs’ second and third bills of exception, and therefore reverse their judgment.” There was no evidence in the record that the subsequent purchasers (the Franklins,) had any actual notice of the prior voluntary deed to the children of Warren. I therefore understand this case to decide two propositions, viz : 1st. That under the statute of 27t/i. Elizabeth, ch. 4, a voluntary deed is not void as against a subsequent purchaser for value, with notice. 2nd. That the notice which will bind the subsequent purchaser need not be actual, but that constructive notice furnished by the recording of the voluntary deed under our registry laws is sufficient. It will also be observed that Justice Jtrcher, who in 1826, delivered the opinion of Baltimore county court, in the case of Bohn vs Headley, reported in 7 Har. Johms., 261, concurred with the majority of the court in this case in giving a different construction to the statute of 27th Elizabeth.