Jackson ex dem. Merrit v. Terry

Thompson, Ch. J., delivered the opinion of the court. From the evidence in this case, it is manifest that, as between Archibald and J ames Turner, a gross fraud was intended. The sale was made for the express purpose of avoiding the judgment of Hubbard against Archibald Turner. But there is no evidence that the lessor of the plaintiff was, in any manner, privy to such fraud. He appears to have been a bona fide purchaser from James Turner, without any knowledge of the fraud between him and Archibald, and, of course, he is not to be prejudiced by it. The right between these parties will, therefore, depend upon the question, whether, under the act for registering deeds and conveyances, relating to the military bounty lands, (1 N. R. L. 209.,) a deed from the sheriff, upon a sale under an execution, is necessary to be recorded. The judgment, under which the defendant derives his title, was docketed, the sale made, and execution returned, and filed, and a deed given, before the deed, from James Turner to the lessor of the plaintiff, but the latter deed was first recorded; so, that if the act applies to such sales, the deed to the lessor of the plaintiff has priority. The act declares, that all deeds or conveyances, of, or concerning, or whereby any of the said lands may be any way affected, in law or equity, shall be recorded; and that every deed, or conveyance, of such land, shall be adjudged fraudulent and void against any subsequent purchaser, for valuable consideration, unless the same be recorded before the recording of the deed or conveyance under which such subsequent purchaser shall claim. Jn the case of Simonds v. Catlin, (2 Caines Rep. 61.,) it was [474] by this court, that the estate .of a defendant did not. pass at a sheriff’s sale without a deed or nóte in writing, to be signed* .by the sheriff; and reference is there made to this very statute, and the precise .case now before . the, court stated, to show the evil that would result from considering the title as passing by the sale without a deed ; and it séemed there to bfe assumed, as the clear; construction of the statute, that a sheriff’s, deed, as well as any other, must be recorded. There is no good reason why it should not be so. The object of the statute was, to enable purchasers tb ascertain the validity of the title,, and to determine whether they could.purchase with safety; and the law refers them to the record, for this..purpose. . , r ,. • If the sheriff’s sale is to defeat the., purchaser, he. would, in vain, seek for the evidence of the title. • And if it should be •admitted, as was, urged upon the argument, that the return on the. execution might be so special as. to supercede the necessity óf a deed, it wotffd not dispensé with the necessity.of having it, recorded. This .return-would then be the evidence of title; ánd ought to be considered as falling within the reason of the Act; it would be an instrument by which the lands'would be .affected; and all such* ar.e to be recorded, or deemed void agains t subsequent bona fide deeds duly recorded. But although in fhe'easeot Simonds v. Gatlin, it is said*, that on a sheriff’s salé óf land, a deed, or note in writing, signed by. the sheriff, is ne-' eessary to pass the title, a return endorsed on the execution never has,: as yet, been considered, by this court, as suffieientfor that purpose. Upon the whole, therefore; we think it will best comport with the reason and policy of the statute, as it certainJy does with the letter, 'to extend it to sheriff’s deeds as Well .as to othersi. The,, deed To. the lessor pf, the plaintiff, -having' .been. first recorded, is. entitled to priority. Judgment must, Accordingly,. be .entered for the plain tiff, fodgméjií'for'flieplhiáfí&