TOULMIN vs AUSTIN, 5 Stew. & P. 410

THQÍNÍNQN, J', This cause, which was trespass t:) up ukuí, cc.ijü«-‘>j up, on a bill of exceptions, taken during the trial, by the plaintiff in error, who was also the plaintiff below : and the error assigned is, in the admission of certain testimony, set forth in the bill of exceptions — and in the instructions given to the jury, thereon.

By the bill of exceptions, it appears that the plaintiff claimed title as a purchaser at the sale of the marshal of the Bouiiicm District of Alabama, by virtue of an execution to him directed, in favor of one Philip Allen, as the estate of one Thomas C: Butler, jr., who was in pos*esjfc,ioa of the lot in question, (having previously obtained a deed from John Forbes <& Co.,) at the date of the said judgment. It also appears, from the bill of exceptions, that the defendant, Austin, was hi possession of the premises, at the time of the commencement of this action, by the plaintiff.

It does not appear, however j that Butler, the defendant in the execution, was in possession, at the time of the marshal’s sale; or that the defendant F 'bp, action, v/uspoi into the possession, by the said Boiler. For aught that appears^ the defendant may bo a tenant, under Thomas C: Butler, sr., whose title to the property he sets up, against the present, plaintiff.

If the fact had been apparent, that the defendant in this action came into the possession of the premises, after the sale and purchase by the plaintiff, in virtue of any contract with the debtor, Butler — as he, Bnfiw, 'Wd hk relf, if the action had leen brought against him, ivsxff, m any maimer, the reco’ very of the plaintiff, so could not the present defendant, claiming under him. For which principles, see 3d Caine’s Reports, 188, and Jackson vs Harder.

But, as this relation of parties does net appear, from the record, to exist, the principles alluded to, do not apply, and the defendant may take shelter under any out-standing title, which he can shew to subsist, better than that of the plaintiff.

Having determined, then, that it was competent to the defendant, to set up an out-standing title, in opposition to the plaintiff’s recovery, let us proceed, according to the order suggested by the bill of exceptions, to consider — First, the sufficiency of the evidence introduced, to maintain this alleged paramount title ; and, secondly, the legality of the instructions, given upon that evidence.

The paramount title, interposed by the defendant, was a deed of conveyance, bearing date the sixth of November, one thousand eight hundred and eighteen, purporting to have been executed by the debtor in the original judgment, Thomas C. Butler, jr., long anterior to the judgment, to satisfy which the premises were sold. This deed was executed in the city of New York, where the bargainor lived. It was attested by two witnesses, and purports to be certified under the hand and notarial seal of Dan’l Keese, notary public of the city of New York.

There is endorsed on the said deed, in addition to the said notarial authentication, the following words and figures : “ Rec’d in office, the 2d April, 1819 — recorded in book B, page 261. D. Duval, Dep. Reg.” The propriety of admitting this deed, thus certified by the notary public of New York, to be read as evidence, on the trial, depends upon the construction of two acts in pari materia — one of one thousand eight hundred and three, entitled “

an act respecting conveyances,” and the other of one thousand eight hundred and twelve, entitled “

an act to amend

an act, respecting conveyances Notwithstanding the ingenious argument of the plaintiff’s counsel, to distinguish between a certificate of acknowledgment, made by an officer of the State, as authorised by the first

section of the first act, and that made by a foreign notary, in the case provided for by the second

section of the last mentioned act — I feel constrained, so to construe those acts, as to give equal -force and validity to either mode of proof. The first act declares, in its first section, after specifying before whom the proof or acknowledgment shall be made : that if a certificate of such acknow-ledgement or proof, shall be written upon or under the said deed, and be signed, &c., then every such deed or conveyance, so acknowledged or proved and certified, shall be received in evidence, in any Court of this territory, as if the same were then and there produced and proved. This

section relates to conveyances, to and from citizens of the then territory. In

section four, of the same act, reference is had to the convenience of the citizen, by providing a different mode of proof, in case of absent conveyors; and after designating several functionaries, residing in other States, before whom proof may be made, declares that such proof or acknowledgment, so certi ■ fied, shall be as good and effectual as if made before, and certified by one of the judges of the Supreme Court of the territory. That is, such deed may he admitted to record in the proper office, and, whenever needed, may be read as evidence, in any Court in the territory. The second

section of the arueuJhffiiW «.ct, i consider as only consulting the convenience of the citizen stiil farther, ny adding the notary public to the list of those functionaries, who were, by provisions of law, authorised to t?><« and certify the proof of conveyances, leaving the effect the same as before. That the- deed .might have been properly admitted to record, upen ■‘his notarial certificate, is not denied, and it would seem strange indeed, that, through the mere medium of registration, a party could make that testimony, which, otherwise, could not be heard.

The next and only remaining portion of the testimony, admitted and objected to, which, according to my view of the case, it is necessary to advert to, is that part which regards the consideration of the deed, the admission of which has just been considered. The deed purports, upon its face, to be in consideration of the sum of twelve hundred dollars, paid by thé grantee, as trustee of Jane Ann Butler, to the grantor.

It was urged in argument, by the counsel of the plaintiff, that the evidence adduced and admitted, touching the consideration of the deed, way illegal; because it varied from the consideration on which the deed purports, on its face, to have been executed. Now, from my view of the testimoy, the parol proof, concerning the consideration, was not contradictory of the consideration, expressed in the deed: and it is laid down, ass a ooíüod i’t'.lc, that parol or extrinsic -_ t- ^ompeicM to prove a consideration, provided it be not incompatible with the consideration expressed in the instrument.

It is also urged, that it is apparent, from the bill of exceptions, that incompetent testimony was ad-whted by the Court. The portion of the bill of exceptions relied upon, to maintain this allegation, is in the following words: “ The defendant also proved, that Thomas C. Butler, jr. once came through the State oí’ Georgia, IL, idi.au> where the marriage settlement was made, on his way from New York, to the city of Mobile, pud brought with him from that State, to Mobile,'a large sum of money, which the witness understood and believed, was a part of Mrs.

Butler's separate estate.” Now, it is readily admitted, that a witness, when .testifying in chief, should always furnish the facts, on which his opinion or belief is founded; and that, if objected to, his opinions, abstracted from the facts on which they arc founded, will not be admitted in evidence — for his deductions may not be warranted; and the jury might deduce very different conclusions, upon the- same principles.

The bill of exceptions, however, does not, to my mind, warrant the inference, that, either ihioegh inadvertence or otherwise, in this case, the naked understanding and belief of the witness, was obtruded upon the jury. If the witness had understood the fact, from a source which made it testimony, and had disclosed that source at the time, the draftsman of the bill of exceptions, in summing up the facts, might have stated them there, and yet not have negatived that state of the case.

It would he a departure from the uniform tenure of decisions in this Court, to indulge in inferences, favorable to the reversal of judgments, much more, in a case like this, where the inference we are called upon to draw, stands opposed by a host of contrary probabilities. Then, with regard to the instructions or charge of the Court, to the jury, in this case, it seems to me, that the only error, if, indeed, there be any, is one of which the plaintiff can not be heard to complain— because it was in his favor rather than against him.

I allude to the charge, which was, in substance, that' if the plaintiff purchased at the marshal’s sale, without notice of the prior conveyance from Thomas C. Butler, jr., to Thomas C. Butler, sr., then his title was paramount, &c. I feel strongly inclined to the opinion, that no notice, either actual or constructive, was necessary to be brought home to the plaintiff, in this case, in order to the protection of the defendant, under the title of Thomas C.

Butler, sr., provided the said title or conveyance were not infected with fraud, the existence of which, or not, I think, was properly submitted to the determination of the jury, under all the circumstances of the case. The deed of conveyance, from the younger Butler to the elder, on which the defendant relics, was executed in November, one thousand eight hundred and eighteen. By our laws, regulating the transfer of real property, all the right of the bargainor in the premises, was communicated to the bargainee. The transference was complete.

Without any statute like that of registration, I would humbly inquire, whether a subsequent conveyance, by the said Sutler, to any other person, could, by any possibility, affect the vested right of the elder Butler, to the premises 1 I apprehend not. Would not the case be the same, if any creditor of the said Butler, jr., after his divestiture of all his interest, by a bona fide conveyance, were to levy, and sell the land, as the property of his debtor 1 In either case, nothing would be sold, and nothing bought.

The common law rule is, “Ne?)io plus juris in ali-um tra?isfcrre potest, quam ipse habet.” This doctrine has, however, been invaded, to a certain extent, by the statutory enactments, which sound policy seemed to require, for the protection of innocent purchasers, from fraudulent vendors. To effect this purpose, alone, the act of one thousand eight hundred and eleven, was enacted.

It provides that deeds, which shall be made after its passage, no matter on how good or valuable consideration they may be founded, shall be void and of no effect, against a subsequent bona fide purchaser, or mortgagee, for a valuable consideration, not having notice thereof, unless recorded, &c.

It has been decided by this Court, in the case cited at bar, Read and Avant, that, without registration, all deeds, subject to the operation of this act, were valid, (nothing else preventing,) against the creditors of the grantor; and I entertain the opinion, that they are valid, in the same way against a purchaser, at a marshal’s or sheriff’s sale — such a purchaser not being within the mischief intended to be remedied by the act.

In corroboration of this conclusion, limiting tin meaning of tlic word purchaser, as used in ibis act to such as purchase of the fraudulent vendor, I refer to the case of Helm vs Lyon’s heirs, where, under a statute, having the same object with ours, 'but more extensive in its operation, making the deed void, for want of registration, against creditors, as well as subsequent purchasers, without notice, it was held, that a purchaser, tinder execution is not affected, by notice of a mortgage, ■which was not recorded, and was, therefore, void, as to creditors.

It is not necessary, however, to decide this point, for, in the case in hand, we consider, that actual notice was given to the plaintiff. Nor clo we think it the less sufficient, because of its being given upon the eve oí the sale. It was yet in time to affect its only legitimate object. The warning was in time to have escaped the blow.

It has long been a settled rule in Chancery, touching notice of prior equitable rights, that notice, either before the obtaining the title, or before payment of the consideration, is sufficient for the purpose of overreaching the legal title in the hands of a purchaser, in favor of the prior equity. By analogy, this notice may surely be considered as timely. Nor do we consider the manner adopted in this instance, to give notice, as subject to objection. It was given, according to the hill of exceptions, to all persons present, by an exhibition of the deed, with the certificate of acknowledgment upon it.

By virtue of that certificate, the grantee could claim its admission into the records of the country; andii it had been put there, though entombed in the musty folio of the clerk, and never seen or heard of, it would have been, by construction of law, an effectual notice to all the world. Its actual presentation is, at least, á better notice than that which would} confessedly, have squared with the requisitions of the law. It was both notice and knowledge, of the prior sale.

From this Consideration of the cause, as presented by the bill of exceptions} we are of opinion that the judgment be affirmed; 4 Johns.R. 211. 2 Mars.3O0 lib. 582. Ala. Dig. p.245. 4 Bibb. 79. 4Bibb.199