Astor v. Wells , 17 U.S. 466 ( 1819 )

Mr. Justice Johnson

delivered the opinion of the

Court. The questions in this case are partlyof law, partlyof fact. The bill charges the. defendant with express notice of the complainant’s previous mortgage, and with holding the land purchased under a secret trust,for the legahrepresentatives of Dorhman, the mortgagor. Both these facts the answer denies ; and as there is no evidence to - sustain them,.they must.be put out of the. case.

The bill then proppses to affect the defendant, Wells, with constructive notice ; and if it fails there, then to set aside the deed to Wells as absolutely void under the express provision of a law of the State of. Ohio.

Obadiáh Jennings, who drew the mortgage from Dorhman to Wells, was fully apprised ©f the exis-. tence of Astor’s mortgage, and acted in concert with Dorhman expressly to defeat Astor’s prior lien, and give precedence to Wells. The advantage of which they proposed to avail themselves for this purpose, was a supposed- mistake committed by Astor as to the legal office for recording his deed. The land was originally comprised within the limits of Jefferson county. But before the recording of the deed, the county of Tuscarawas was taken off from Jefferson, 'and the land lay in that part of Jefferson which thus became Tuscarawas county. The law of Ohio' requires that the recording shall take place in the County in which the land lies.

The first question is, was this a legal recording under the laws of Ohio, so as to preserve the priority which dates gave to Astor ? The office of Jefferson county was the legal office at the time of executing the deed: did it continue to be so at the time of recording it ? This can only be decided by considering the object of the law.' It was to give notice to subsequent, purchasers — to place at. their command the means of investigation, to which, if they did not resort, they had only to blame their own indolence or folly. But no one in search of such information respecting lands situate in Tuscarawas county, would be expected to search the records of Jefferson subsequent to the. date of the separation. He would naturally refer to the records of the new county to its origin, and from that time pursue his inquiries among the records of the county in which it was originally comprised. And, therefore, we are of opinion, that the recording of Astor’s deed was not sufficient, either to preserve its legal priority, or give it the equity resulting from constructive notice.

But it is contended, that Jennings was the mutual agent of both mortgagor and mortgagee in the creation of Wells’ mortgage, and, therefore, the notice to ■xx'r 11 tt • i Jennings was notice to Wells. Here, again, the com- ° ® . * plainant’s case is unsupported by the evidence. On the law there could be no doubt, if the facts wére such as the complainant contends. But it is positively denied both by Wells and Jennings; and if Jennings was the agent of Dorhman only, his knowledge could produce no other effect on the rights, of , . Wells than if. it had been concealed in the breast of Dorhman. And this leads to the final question in the case. „ As the deed really was “ made” to defraud Astor, does that circumstance alone, under the laws of Ohio, destroy its validity, without reference to the knowledge or connivance of the mortgagee. And this again must be decided by referring to the object (,jie |aWo The words of the statute would literally embrace the'case. But who are the objects of the law ? Not creditors only, but subsequent purchasers. And to give it such a construction as would expose a bona fina purchaser without notice to imposition, in order to protect creditors, could never eomport with the intent of the law.

Upon the whole, we are of opinion, that there is no error in the decree below, and that the same be affirmed, with costs.

Decree affirmed, with costs.