Jackson, ex dem. Merrick, vs. Post, 15 Wend. 588

Per. Curiam. The case is substantially the same as when heretofore before us, as reported in 9 Cowen, 120. It differs in some particulars: 1. The defendant offered to prove an agreement by parol of the plaintiff, that he would give up all claim to the 20 acres if Ten Eyck would become the purchaser at the sheriff’s sale, and give Charles Merrick time for redemption.

This evidence was excluded, and in excluding it the judge was correct, and assigned a good reason for the decision; Thomas Merrick was not a party to the written agreement, and it cannot be contended that a parol agreement to release a title to land is valid. The alleged agreement by T. Merrick was an agreement by parol to give up his claim to land which had been conveyed to him by deed ; it was void by the statute of frauds. The judge was right also in deciding that the deed from C. Merrick to T.

Merrick was not void in law as made in fraud of creditors, because, although the grantor was indebted, there was property enough left to pay his debts. It was not necessary, in 1829, when this cause was tried, to submit such a question to the jury, nor does it appear that the defendant’s counsel requested the judge so to submit it. Although the judge may have erred in over-ruling the position that C.

Merrick, being in possession at the time of the levy and sale, had an interest which was the subject of sale on execution ; such error did not prejudice the defendant :• it was an abstract proposition which could have no bearing on the case. Had Charles Merrick been the defendant in an action of ejectment brought by Ten Eyck, such a proposition would have been appropriate. Actual possession is evidence of title : Ten Eyck having purchased C. Merrick’s right, was entitled to the possession as against him : Ten Eyck came into his place, and took all his interest.

But Charles Merrick had no right to the possession as against the present plaintiff; of course his grantee could have none derived through him. Had the judge therefore informed the jury that C. Merrick being in possession had an interest which was the subject of a sheriff’s sale, he must also have told them that C. Merrick had no right to the possession against the legal owner, T. Merrick. There is another particular in which this case differs from former- it there appeared that all those through whom the title passed from Ten Eyck to the defendant, and the defendant himself, had notice of T. Merrick’s deed.

That evidence is not in this case ; but enough appears to put the subsequent purchasers upon inquiry, and to show that Ten Eyck, under whom the defendant claims, had no title to the twenty acres in dispute. ' The object of the recording acts is to prevent frauds—to prevent the person having title to land from selling it more than once, and thereby defrauding one or more of the purchasers. The object of recording is to give notice to all the world that the title has passed from the vendor’ to the vendee.

If the vendee neglects to record his deed, in consequence of which another person purchases bona fide, such vendee, so neglecting to record his deed, loses his title; but if the second purchaser has actual notice of the first conveyance, he is not a bona fide purchaser. The record of the first deed is constructive notice of the fact of the existence of the deed; if, ..however, actual notice has been given to the second purchaser, he cannot complain of want of constructive notice.

Notice to the second purchaser, whether actual or constructive, that the land has been previously sold and conveyed, deprives him of the character of a bona fide purchaser. It is a conceded fact in the present case, that Ten Eyck had notice of the present plaintiff’s title at the time of the sheriff’s sale. He was not, therefore, in law, a bona fide purchaser; on the contrary, he acquired no title to the twenty acres. As to those twenty acres, Ten Eyck’s deed was void—as much so as if T. Merrick’s deed had been recorded.

Had Ten Eyck, therefore, remained in possession, and been the defendant instead of the present defendant, he could not make any plausible defence. It may be said, however, that the defendant had no notice of T. Merrick’s deed, except the record, and that the same record informed' him that Ten Eyck’s deed was first recorded, and therefore took precedence. It is true that Ten Eyck’s deed was first recorded, but it is also true that T. Merrick’s was recorded before Ten Eyck conveyed the premises.

The act requiring deeds to be recorded does not say (as the act requiring mortgages to be registered does) that the deed first recorded shall have preference, but that the unrecorded deed shall be considered void as against a subsequent bona fide purchaser. When, therefore, the present defendant saw by the record that T. Merrick’s deed was anterior in date to Ten Eyck’s, he was bound to inquire whether Ten Eyck was a bona fide purchaser. He did not become such by the mere fact of putting his deed first on record.

If the defendant had made such inquiry, he could not have failed to have ascertained the true state of the case, and to have learnt that Ten Eyck had in fact no title as against T. Merrick, the present plaintiff. In Tuttle v. Jackson, 6 Wendell, 226, it was said, by Chancellor Walworth, “ If the subsequent purchaser knows of the unregistered conveyance at the time of his purchase, he cannot protect himself against that conveyance ; and whatever is sufficient to make it his duty to inquire as to the rights of others, is considered legal notice to him of those rights.” And surely the record of T.

Merrick’s deed was sufficient to make it the duty of all subsequent purchasers to inquire as to the rights of T. Merrick. The fact that his deed was recorded subsequent to Ten Eyck’s, conveyed an intimation that he intended to assert his title. It is therefore perfectly clear to our minds that the decision of the judge at the circuit was right, without considering the authority of the former decision. We have heretofore had occasion, in Jackson v. Chamberlain, 8 Wendell, 626, 7, to speak of this case as reported in 9 Cowen, 120, and of Jackson v. Town, 4 Cowen, 599.

In the latter case the plaintiff claimed to recover under a sheriff’s deed, and his right of recovery depended upon the fact that Eleanor Town had title to the premises when the judgment was docketed under which the sale was made. The only evidence of title consisted of the fact that Eleanor Town had been some four or five years in possession; but she had abandoned the possession two years before the cause of action accrued upon which the judgment was recovered. No paper title was shown in E. Town.

Several months after she abandoned the possession, she conveyed to her daughter, the defendant, who took possession some three years afterwards. The learned judge, who delivered the opinion of the court in the first place, placed the decision upon true ground—-the want of title in E. Town. Had he left it there, the correctnesg 0f that decision, we apprehend, could never have been f doubted. In order to fortify the case, he undertook to show, that if E. Town had had title when she occupied the premises, .she had parted with it before the judgment against her under which the plaintiff claimed.

The reasoning of the learned judge on that point is not satisfactory, and in our opinion it fails to prove the proposition that E. Town had legally conveyed her title. The deed to Lydia Town conveyed all the interest of the grantor to the grantee without being recorded ; as be.tween the parties and others having notice, it was valid, but as against subsequent bona fide purchasers, it was void.

On the supposition that Eleanor Town had title when she conveyed to Lydia Town, there can be no doubt that, had she conveyed to the lessor, Stewart, at the time when he took the sheriff’s deed, if his purchase was bona fide without notice of the deed to L. Town, it would have been the better title ; for the unrecorded deed was by the statute fraudulent and void against subsequent bona fide purchasers for valuable consideration. A judgment and sale under it are a species of conveyance, and equally effectual to transmit the title of the defendant in the judgment, as a deed from' such defendant.

As, therefore, the lessor -had no notice of the defendant’s deed when he took the sheriff’s deed, he took all the title which the judgment debtor was capable of conveying to a bona fide purchaser. It is therefore clear to us, that if E. Town had title, her deed to her daughter, although good as between the parties, was void as to a subsequent bona fide purchaser, which the lessor of the plaintiff was. The case was, however, in our opinion, rightly decided, upon the first ground, to wit, absence of any proof of title in E. Town.

When this cause was before this court formerly, as reported in 9 Cowen, 120, the preceding point in the decision of Jackson v. Town was cited, and apparently relied on. It was unnecessary to resort to tha.t ground, as it appeared then as it does now—that Ten Eyck, when he purchased, had full notice of the previous deed to the plaintiff. His sheriff’s deed had the same force and efficacy as a quitclaim deed from C. Merrick of the same date would have had ; and having notice, he purchased with as full knowledge of the plaintiff’s deed as if it had been recorded.

In such cases we consider the lien of the judgment as of no force, by way of giving priority; it is the sale under the judgment which is effectual, and the lien is not regarded as an incumbrance, but only as an ingredient in the conveyance. The facts of this case therefore justified the former decision, and so we apprehend they do the present. New trial denied.