Eubank v. Kirk , 1 Va. Dec. 254 ( 1877 )

McLaughlin, J.

The only question to be decided in this case is, whether the deed of trust from Dunaway to Kirk is entitled to preference over the two deeds of trust from Dunaway to Eubank. The deed from Dunaway tó Kirk bears date on the 1st day of January, 1866, but was in fact not executed untill Saturday before the 4th Sunday in March, 1866, at “Lebanon” church, where it was acknowledged before Warner Eubank and E. E. Dunaway as subscribing witnesses. The deed was then delivered to Eubank, who-was clerk of the county court of Lancaster. Eubank held the deed until E. E. Dunaway should appear before him, in his (clerk’s) office, and prove it, and he himself could prove it in court. The deed, however, was not admitted to record until the 16th day of April, 1866, when Dunaway, the grantor, appeared in the clerk’s office and acknowledged it.

In the meantime, Dunaway, supposing that in acknowledging it before Eubank and delivering it to him in March, he had done everything necessary for its proper registry, acknowledged before Eubank in his office two other deeds of trust to the said Eubank as trustee, one dated on the 19th of March, 1866, and the other on the 14th day of April, 1866, and delivered them on the latter day for registry. The latter deed was executed without the knowledge of the creditors intended to be secured, and without the knowledge of the trustees until it was acknowleged before him and delivered for recordation.

It is unnecessary to consider the questions raised in the argument whether the deed to Kirk was in effect recorded, as in our opinion the whole case turns upon the question of notice. Did the knowledge of Eubank of the deed to Kirk before the delivery of the two deeds of trust to him as trustee, affect the cestuis que trustent ?

In the case of Beverly v. Brook, 2 Leigh, Scott, the trustee, had notice of the unrecorded deed of Beverly to Mason before the delivery of the deed to himself. Judge Green, speaking for the whole court, says (p. 446), “Such a notice, I think he had; he was explicitly informed that a deed for a part of the land was given to secure a debt to Peter Beverly, and at the same time that the debt was usurious. This notice made the deed as valid against him and all claiming under the deed to him, as if it had been duly recorded, liable to be impeached for usury, as it would have been, if recorded, and not otherwise.” Nor are the cases of Wickham v. Martin, 13 Gratt. 437, and Evans v. Greenhow, 15 Gratt. 157, cited by appellant’s counsel, in conflict with this doctrine. In these cases it was held that creditors were purchasers for valuable consideration, and in the latter case the deed was given preference on the distinct ground that neither the beneficiaries, nor their trustee had notice.

The circuit court held that Eubank was a purchaser for valuable consideration, with full notice of the prior deed to Kirk, and that the beneficiaries in both said deeds to Eubank as trustee, are affected with such notice to their said trustee. In so holding, I do not think the circuit court erred, and I am, therefore, of opinion, that the said decree ought to be affirmed.

Decree affirmed.