Clark v. Troy

Norton, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring. Section twenty-nine of the Act concerning Conveyances, which authorizes an instrument which has been proved in the manner prescribed in that act to be read in evidence with the certificate without farther proof, is not limited to instruments to be thereafter executed ; nor do we think such an intent can be gathered from any other portions of the act. Although section forty-one accords to conveyances theretofore made and acknowledged or proved, the same force as evidence as conveyances executed and acknowledged in pursuance of that act, it does not directly or by implication jirohibit such conveyances to be acknowledged or proved under that act. In fact, by a strict reading of section forty-one, a conveyance that may have been made before the passage of that act, but which had not been acknowledged, or proved, or recorded, could not be put on record after the passage of that act by virtue of that section alone. But, in the case of Call v. Hastings, (3 Cal. 179) it was decided that all conveyances, whether executed before or after the passage of that act, must be recorded, in order to protect the holder against subsequent bona fide purchasers. Under these circumstances, it would require direct and peremptory language in the act to authorize an inference that it was the intent that conveyances previously executed could not be proved under it so as to authorize them to be recorded. And if they may be proved and recorded under the act, they may, on the same proof, be read in evidence, as the language of the act upon the two subjects is the same, so far as affecting previously executed conveyances. There was, therefore, no error in permitting the deed from Pena to Robles to be read in evidence on the Notary’s certificate of proof by the subscribing witness. After charging the jury that if Farrar was not a purchaser in good faith and for a valuable consideration they should find for the plaintiff, the Court gave the following instruction: “By a purchaser for a valuable consideration is meant one who has paid a fair value, or something approaching to a fair value, for the premises; and in order to determine if Farrar was a purchaser for a valuable consid [224] eration, you should consider the actual value of the land purchased in comparison to the purchase price paid.” This was erroneous. There is a settled legal definition of the different kinds of consideration. A good consideration is such as that of blood, or of natural affection. A valuable consideration is such as money or the like. Deeds made upon a good consideration only are considered as merely voluntary, and are frequently set aside in favor of creditors and Iona fide purchasers. When the statute speaks of a purchaser “ in good faith and for a valuable consideration,” there is no reason to suppose it was intended to employ these terms in this connection as a tautologous expression. The intent is, that the purchase must not only be in good faith, but it must be founded on a valuable consideration, as distinguished from a merely good consideration. In other words, that a voluntary deed, although taken in good faith and first recorded, will not have preference over a prior deed. The mode in which the terms are connected indicates the intent with which the latter was used. In good faith and for a valuable consideration. The inadequacy of price is a circumstance proper to be considered in determining the question of good faith, but it will not the less fall within the legal definition of a valuable consideration, however disproportioned it may be to the value of the land. We are urged to uphold the verdict in this case by overruling the case of Call v. Hastings, (3 Cal. 197) and the case of Stafford v. Lick, (7 Cal. 474) and deciding that a deed executed before the passage of the Act concerning Conveyances, (April 16th, 1859) need not be recorded, in order to prevail against a subsequent deed taken in good faith and for a valuable consideration, and first recorded. Without intending to intimate an opinion whether those decisions were correct or not, we think they have stood too long as a rule of property to be now set aside by the decision of this Court. Although some instances of fraud may arise under their operation, this danger is greatly diminished by the lapse of time, and a safeguard is also found in the provision that the purchase, to prevail against a prior deed, must be in good faith. At any rate, if policy would require a change in the law, it should be made by the Legislature. Judgment reversed and a new trial ordered.