Chaffe v. Halpin & Bonham , 62 Miss. 1 ( 1884 )

Campbell C. J.,

deliveréd the opinion of the court.

The creditors and purchasers, to whom an unrecorded instrument of which they have no notice, is void, are creditors of and purchasers from the grantor in the instrument. As to all others, recording is unnecessary, and the instrument is valid without it. The appellants were not creditors of or purchasers from Mrs. Harrison, who owned the land, apparently, and mortgaged it to the appellees. They were creditors of Mr. Harrison,, and by exhibiting their bill on the 9th March, and procuring service of process under it on the 11th March, they acquired a lien on the land as. against all but bona fid,e purchasers before that date. The appellees claim under a deed of trust, bearing date- the 2d March, and purporting to be for a present consideration of two thousand five hundred dollars. The deed was not acknowledged until the 22d of March, and was recorded. 26th July afterward, but it was good between the parties and all except creditors of and purchasers from its grantor, •Mrs. Harrison, from its date, in the absence of evidence that its delivery occurred afterward. Delivery is presumed to be contemporaneous with the date of a deed in the absence of any evidence when delivery was actually made.

The appellees holding a deed importing a valuable consideration, and bearing date anterior to the acquisition of a lien by the appellants on the land, in the absence of any evidence affecting the presumptions arising from the face of the papers, had precedence as to the land.

The strongest view in favor of the appellants is, that Chaffe, by his purchase of the land at the sale under the decree, became a purchaser from Mrs. Harrison, defendant in the suit; but this view is not maintainable, it being settled that such purchasers are not entitled to protection as bona fide purchasers, but are mere volunteers.

Judgment affirmed.