MEMPHIS LAND & TIMBER CO. v. FORD, 58 F. 452

SANBORN, Circuit Judge, after stating the facts as above, delivered the opinion of the court.

It is necessary to consider hut a single question in the determination of this case, and that is, can one who, ever since the year 18(50, has held original swamp-land certificates issued by the state of Arkansas, and assignments thereof from the original grantee, and who, ever since the year 3872, has held title by deed to all his interest in the land described in the certificates, but who never recorded any of these title papers until 1887, maintain any claim to an equitable interest in such lands, under the registry Jaws of the state of Arkansas, as against one who in 1883 purchased, in good faith, for value, and without notice of this claim, from a receiver of the éstate of tbe original grantee named in tbe certificates, tbe apparent title,of tbe estate to tbe same lands?

Tbe original swamp-land certificates Tested in Atkinson, to wbom tbey were issued, tbe entire equitable estate in tbe land tbey de-'seribed, but left tbe naked legal title in tbe state. Coleman v. Hill, 44 Ark. 452. Tbe case just citéd is relied on by counsel for ap-pellee in support- of tbeir contention, but it bas no bearing upon tbe question bere at issue, under tbe registry laws, because tbe bolder •bf the original certificate in that casé immediately took and continuously held possession of tbe land described in the certificate, .and thus. gave notice of bis claim to all subsequent purchasers.

Atkinson and his wife, by tbeir deed to W. Gh Ford on September '29, 1856, in terms, conveyed, with a full covenant of warranty, tbe land, "the title of which was derived by certificates Nos. 1510 to T5.17,” (tbe. numbers of tbeir original certificates,) and relinquished to tbeir grantee ‘fall claim” to these lands, which tbey derived from the state of Arkansas., On November 12, I860, a written assignment, in tbe following words, was indorsed on tbe back of each of the certificates, and signed by Atkinson: “For value received, I hereby assign and transfer to Mary S.

Ford, and to her heirs and assigns, all my right, title, interest, and claim to the within-described lands. Given under my band and seal this 12th day of November, A. D. 1860.” Tbe certificates, with these indorsements, were then delivered to tbe appellee. On April 17, 1872, W. G. Ford conveyed bis interest in tbe lands to the appellee by deed. Tbe statutes of Arkansas provided “that all deeds and instruments of writing for tbe conveyance of real estate, or whereby such real estate is to be affected at law or in equity,” should be acknowledged or proved before a proper court or officer (Mansf.

Dig. §§ 656, 657;) that tbe assignments of swamp-land certificates should be in the form indorsed on these in question, and that every such assignment .“shall be witnessed by two respectable subscribing witnesses, and proven or acknowledged in tbe manner authorized by law for deeds of conveyance,” (Id. § 4206;) and .that “no deed, bond, or instrument of writing for the conveyance of any real estate, or by which tbe title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate, for a valuable consideration, without actual notice thereof, * * * unless such deed, bond or instrument duly executed, acknowledged, or proved as is or may be required by law, shall be filed for record in tbe office of tbe clerk and ex officio recorder of tbe county where such real estate may be situated.” Id. § 671.

It' is plain that, as between Atkinson and tbe appellee, tbe deeds and assignments she bolds bad tbe effect to convey to her tbe entire beneficial interest — all tbe equitable estate — in these lands, leaving nothing but tbe naked legal title in tbe state for her benefit: Indeed, that tbey bad this effect is tbe only ground of her claim in tfiis court; but her counsel insist that tbe registry statutes are inapplicable to these instruments, and that they were not required to be recorded, because tbey did not convey or affect tbe legal title to the-land.

Tbe statutes themselves are a conclusive answer to this contention. Tbe assignments were expressly required to be acknowledged or proved by tbe act o£ the legislature which authorized the transfer of the certificates by assignment. The deeds were required to be acknowledged or proved, because by them real estate was “to be affected * * * in equity,” (sections 65(5, 657, supra,) and both the deeds and the assignments were expressly declared to be void against any subsequent bona fide purchaser for value and without notice, by

section 671, supra, because by them the title to the real estate in question might be “affected- * * * in equity.” Digman v. McCollum, 47 Mo. 372; Insurance Co. v. Shriver, 3 Md. Ch. 381; Bellas v. M’Carty, 10 Watts, 13; Doyle v. Teas, 4 Scam. 202, 252; Powell v. Jeffries, Id. 387, 390; Bishop v. Newton, 20 Ill. 175, 181.

The evidence is conclusive that, before any of the instruments under which the appellee claims were recorded, the appellant purchased, for value, the equitable interest of the estate of Atkinson (who died in 1864) in these lands; that this interest was properly conveyed to it by the receiver; that it presented the duplicate certificates to the land commissioner; and that the company obtained deeds of the lands from the state, and duly recorded them, in good faith, without notice that Atkinson had ever conveyed his equitable estate.

It is, however, objected to the title thus obtained by the appellant, that it is only a subsequent purchaser from the same grantor that is protected by the registry statutes, and that a purchaser from the heirs or legal representatives of such a grantor can take no benefit from their provisions. - It is not contended that the receiver was not fully empowered to convey all the title and interest in these lands that could have been conveyed by all the devisees under the will of Atkinson and all his creditors, but the argument is that the purchaser from the heir or from the receiver of the estate of a deceased grantor takes only the title or interest of which the deceased died seised; that he buys at his peril; and that as the deceased, in this case, died seised of no interest in these lands, the appellant took nothing by the conveyances of the receiver.

This argument is more specious than sound. Many years ago it met the approval of the supreme court of Kentucky in Ralls v. Graham, 4 T. B. Mon. 120, and Hancock v. Beverly, 6 B. Mon. 531, and was adopted by a divided court in Hill v. Meeker, 24 Conn. 211; but the opinion of the dissenting judge in the case last mentioned has since met with general approval.

The argument may be used with equal force to entirely annul the statute, and to show that the purchaser from the same grantor tabes nothing by a subsequent deed, for it may be said that such a grantor can convey oidy the title or interest he has, and, as he has none after making his first deed, he can convey nothing, and the subsequent purchaser can take nothing. This argument loses sight of the policy and purpose of the registry statutes.

It is the purpose of those statutes to-make the title that appears of record — the apparent title — superior, in the hands of an innocent purchaser for value, to the real title that is not of record. The grantor who has conveyed away his land by an unrecorded deed, it is true, has no title or interest remaining in himself; and yet, his deed to an innocent purchaser for value avoids, by virtue of the registry statute, the prior- conveyance, and vests the title in the subsequent purchaser.

If Atkinson, before his death, had conveyed his apparent equitable estate in these lands to such a purchaser, the unrecorded deeds and assignments held by the appellee would have been void as against the subsequent conveyance, because that would have carried the apparent title. After he died, and the receiver of his estate was empowered 'to convey the equitable estate in these lands, which Atkinson appeared to have had at his death, the receiver’s deeds or assignments appear, from an examination of the records, to convey as perfect a title as the deed of Atkinson would have conveyed before he died.

A purchaser from such a vendor seems to be clearly within the reason and policy of the statute. To deprive him of its benefits, and to compel every purchaser from an estate to take notice of unrecorded deeds and instruments, and the private and seci*et transactions of the deceased in the lands which he appears by the records to own when he dies, would greatly depreciate the value of every estate in the land, and benefit none but the negligent and careless.

The benefits of the statute are not, by its terms, limited to a subsequent purchaser from the same grantor; and such a limitation would, in our opinion, deprive it of much of the efficacy intended to be given to it by the legislature.

Undoubtedly, the term “subsequent purchaser,” in this statute, does not include a purchaser from an apparent stranger to the title of the grantor in the unrecorded deed; but it does include, not only the purchaser from the grantor himself, but every subsequent purchaser from one who appears from the records to be the owner of, or to be authorized to convey, the title and interest that the grantor had when he made the unrecorded deed. This vieAv is sustained in well-reasoned opinions, and by the weight of authority. Kennedy v. Northup, 15 Ill. 148, 157; Bowen v. Prout, 52 Ill. 354, 357; Youngblood v.

Vastine, 46 Mo. 239, 242; Powers v. M’Ferran, 2 Serg. & R. 43, 47; Earle v. Fiske, 103 Mass. 491, 494. The conclusion we have reached renders it unnecessary to consider whether the duplicate certificates were properly issued by the state land commissioner. Whether they were so or not, the conveyances of the receiver vested in the appellant the apparent equitable interest of the estate of Atkinson in these lands, and the state subsequently conveyed to it the legal title.

If no duplicates had ever- been issued, the conveyances of the receiver would have entitled the appellant to the deeds from the state, as against the ap-pellee, whose assignments and deeds are made void by the registry statutes; and as she has no equitable estate in the lands, and no legal title, she cannot be heard to assail the title of the appellant. The decree below is reversed, with costs, and the cause remanded, with directions to enter a decree in favor of the appellant, in accordance with the views expressed in this opinion.