Duke v. Clark , 58 Miss. 465 ( 1880 )

Campbell, J.,

delivered the opinion of the court.

The action of the court below in reference to the evidence of the judgment and execution, in favor oi Martin & Duke v. Anderson, and Miller v. Anderson, was erroneous. It was admissible for the plaintiffs to show ,that the three executions in the hands of the sheriff were levied on the land, and that it was sold under the three, although there was no indorsement of a levy on any of them except one. The failure of the sheriff to make the proper return on the executions did not affect the right of the purchaser, and the fact that the purchaser owned the judgments executed made no difference in this respect. His right depends on what was done, and not on an -omission of the officer to return a correct statement of it. The evidence proposed consists with the return of the officer on the executions, and should have been admitted.

The deed of the sheriff was prima facie evidence that he had done those things required by law to be done by him in the proper execution of the power of sale conferred on him by the judgments and executions, and the instruction on that subject asked by the appellants should have been given.

The instruction for appellees should not have been given. If it is true (about which we express no opinion) that a sale made under execution by a sheriff before eleven o’clock a. m. is void, the presence at the sale of the defendant in the executions and his grantee of the land sold, and the forbidding the sale on other grounds and making no objection as to the hour of the sale, preclude this objection now.

It is contended by counsel for the appellants that the assignee of the judgments, who acquired them for value, without notice of the fact that the judgment creditors had notice, before their judgments, of the conveyance to Clark, was not affected by such notice, but took the judgments assigned to him as if no notice had been given to his assignors' before they obtained the judgments ; and we think this is a correct yiew of the law. Although it may be true that the judgment creditors had notice of the unrecorded conveyance by Anderson to Clark when their judgments were rendered, this was personal1 to them, and did not affect the assignee of the judgments, who did not have notice of the fact that they had notice of the deed. It is true that the assignee of a chose in action takes it subject to all the equities to which it was sub-, ject in.the hands of the assignor, but the equities meant are such as obtain in favor of the debtor, and not those claimed by a third person against the assignor. Mott v. Clark, 9 Pa. St. 399 ; Wright v. Levy, 12 Cal. 257 ; Murray v. Lylburn, 2 Johns. Ch. 441; Hendrickson’s Appeal, 24 Pa. St. 362 ; Wether ill’s Appeal, 3 Grant Cas. 281; 2 White & Tudor Ld. Cas: 225 ; Freem. on Judg., sect. 428.

A judgment lien takes precedence of an unregistered conveyance, but as the object of registration is to give notice to creditors of and purchasers from the grantor, notice to them is as effectual as registration to prevent the lien of a judgment or a second conveyance from taking precedence of an unrecorded one which is prior in date ; but this is entirely a matter between the creditor or purchaser and the claimant under the unrecorded conveyance. Because the creditor or purchaser has notice of the unregistered conveyance, he stands affected as if it was recorded ; but a purchaser from him, who has no notice of what he has notice of, and buys on the apparent lien of the judgment as paramount to any unrecorded conveyance by the defendant, has the right to rely on the precedence which the record shows the judgment has, and is not affected by the notice which his assignor had. If the assignee of a judgment which, according to the records, is a lien on land precedent to an unregistered conveyance, or the grantee in such conveyance, must suffer loss, it falls more properly on him who neglected to file his conveyance for record, so as to give notice of it, than on him who was misled by the appearances presented by the records, arising from the failure of such grantee to comply with the easy requirement of the registry law. It is certainly true that an assignee cannot acquire any greater right as against the judgment debtor than his assignor had, but a different question is presented as to whether notice, consisting of matters in pais, which may' affect the knowledge and bind the conscience of the assignor, as against some third person other than the debtor, shall be held to extend in its consequences to his innocent assignee, ‘ who acts upon the faith of the records. The records should be a safe guide to one who trusts to them, having no notice that they do not present the real state of the title; and he should not be affected by the mere knowledge had by the assignor of some secret inaccessible to the observation of those not possessed of it.

In this case, Duke, the assignee of the judgments, was bound to take notice of what the records showed when the judgments were rendered. He was not bound to know of any notice to the judgment creditors not furnished by the records ; nor, because of the known possibility that the judgment creditors had notice of an unregistered conveyance, was he required to go in quest of its having been furnished to them. He had the right to go by the records, and trust to what they showed, and was not required to look beyond them. Looking to them, he saw that the two judgments were rendered and the conveyance to Clark was filed for record on the same day. He took, the risk of which was entitled to precedence by reason of priority on that day, but that was the extent of his risk. He was not called on to speculate on possibilities, and seek a reason for subordinating the judgments to the conveyance. There was nothing to suggest an iuquiry of this sort.

It is well settled that the bona fides of a purchaser without notice will protect him in his purchase from .one who had notice. Good faith is so highly esteemed that its existence with the vendor or the vendee will protect the title. Notice to one is not notice to another who deals with him. Notice affects only the recipient of it. And it is with the consequence of notice to a creditor, as a substitute and equivalent for registration, that we are dealing.

We regard it as the settled doctrine in this State that purchasers at execution sales are, to the same extent as other purchasers,'entitled'"to the benefit of the statutes requiring instruments affecting the title to land to be registered. Henderson v. Downing, 24 Miss. 106 ; Harper v. Tapley, 35 Miss. 506; Taylor v. Lowenstein, 50 Miss. 278; Humphreys v. Merrill, 52 Miss. 92 ; Loughridge v. Bowland, 52 Miss. 546.

It is also settled that notice to the creditor before he acquires a lien, of a conveyance, is equivalent to registration of the conveyance; but it has never been held, and we think it improper to hold, that notice to the plaintiff is notice to his assignee of such conveyance. It is true that the conveyance by Anderson to Clark was filed for record on the day of the rendition of the judgments assigned, and that the assignee was charged with notice of the conveyance as of that date, and, as before stated, he took the risk of a contest for priority between the judgments and the conveyance with reference to the fractions of that day ; but the record of the conveyance did not notify him that the judgment creditors had learned of the secret instrument before it was filed for record. There was no change of the possession of the land. The judgment debtor held possession as before. Although the conveyance was dated several months before it was filed for record, it is a just inference from the circumstances that the conveyance, which had been withheld from the records, had been kept secret from all but the parties to it.

It is contended by counsel for the appellees that, notwithstanding any error of the Circuit Court, the judgment for the appellees is right, because the holder of three judgments, one of which did not bind the land, purchased land sold by successive parcels under executions issued upon the three judgments, and failed to show what was sold under the executions upon the judgments which were a charge upon the land, as distinguished from what was sold under such as did not charge it. The proposition is, that if one has several judgments, and executions levied on property, some of which ai'e a lien on it aixd some not, and a sale takes place under all, and the holder of the judgments buys, he gets xxo title by virtue of such of his judg’meixts as bind the property, because of the bleixdiixg of them with those not a lien on it. It is true that when enough had been sold to satisfy the executions satisfiable out of the property, the further sale under executions subordinate to the claim of the grantee of the judgment debtor did not operate to vest title in the holder of the judgments, because of the satisfactioxx of those which were a lien aixd the absence of a x’ight to sxxbject the property to any other; but it does xxot follow that the judgmexxt should be affirmed. We cannot say on what view of the facts the verdict was rendered. It may have resulted from the action of the court which we have pronounced erroneous. The conveyance to Clark was assailed as fraudulent, and it cannot be assumed that the verdict was a repudiation of this imputation. It cannot be affirmed with confidence what produced the verdict. The appellants are entitled to a reversal of the judgment, and on another trial the proposition of the counsel for appellees as to the invalidity of the sale to the owner of the three judgments, if it shall appear that the land was not subject to some of them, may be more favorably presented, unembarrassed by errors necessitating a reversal of the judgment which may be rendered.

Judgment reversed, and cause remanded for a new trial in accordance with the views announced in this opinion.