Roe v. Doe ex dem. Cato's Orphans

By the Court. Lumpkin J. delivering the opinion. The only question we deem it our duty to consider and decide in this case is this: Concede that George W. Slappey bought of Daniel Cato, the orphan of John Cato, deceased, ■with notice of the prior unrecorded deed, made by Daniel Cato to Elijah Johnson, and sold to Samuel Rutherford, who bad no notice of the conveyance to Johnson — is Rutherford protected in his purchase ? As between Johnson and Slappey, the two immediate grantees of Cato, the Act of 1837 declares, that Johnson’s title shall prevail. That Act settles nothing beyond this; and such was the general decisions of our State Courts before that Act was passed. A departure from this doctrine led to the passage of this Act, as X am induced to believe from information derived from one of the old Circuit Judges. And so far as we are advised, the adjudications were equally well settled and uniform upon the other point, namely: That if A. buys land of B., and takes a deed which he fails to record In time, and B. subsequently sells the same land to 0., who records his deed in time, with notice, and C. conveys to D. without notice of A’s deed, and both C. and D’s deeds are registered within the twelve months, that D. has priority over A. Without citing any other authority, which is scattered broadcast over the books of reports, we rest our judgment upon the case of Trueluck and others against Peoples and oth [641] ers, 3 Ga. Rep. 446. That case, it is true, was not decided under the Act of 1837. But, as wc have already said, the point we are discussing is not provided for by that Act. But Trueluck against Peoples was referred to and affirmed in Herndon and others vs. Kimball and others, 7 Ga. Rep. 432. And this latter decision was upon a deed made in 1839. The facts of the case in 3d Georgia, were identical with the facts in this case. The learned Judge, (Warner,) in delivering the opinion of the Court, says: “It is a settled rule, that if one affected with notice, conveys to one without notice, the latter shall be protected equally as if no notice ever existed. So, where one without notice, conveys to one with notice, the purchaser with notice will be protected; for otherwise, a bona fide purchaser might be deprived of the benefit of selling his property for its full value.” And this rule is sustained by innumerable precedents. And it occurs to me, that it is founded in reason. If the second grantee, from the same vendor who buys, acquires the priority over the old unrecorded deed, why should not the vendee of the second grantee, who purchases without notice, be equally protected ? If the laches of the first grantee, in not having his deed recorded in time, is made the reason for giving precedence to the second purchaser, without notice, does it not operate with equal force in favor of the innocent purchaser without notice, from the second grantee with notice ? It is by the same laches that this second purchaser is enabled to perpetrate a fraud upon his innocent vendee. It is said that he may resort to his warranty, and thus cause the loss to fall upon the right person. The same argument would apply as between the two original grantees from the same vendor. And yet the Legislature has not deemed that a satisfactory reason; and hence passed the Act of 1S37. A warranty is not always given; and the warrantor may be irresponsible. Moreover, it is not disputed but that there are a class of cases, where this principle does ob [642] tain. Why should it prevail in any case, if the foregoing reply is satisfactory ? Neither law nor equity ever looks beyond an innocent purchaser, but spreads its broad ccgis over him. Again, it is contended that this doctrine is illogical. For, say counsel, if the first purchaser with notice takes nothing, how can he convey a title to a bona fide vendee ? When A. sells in fee to B., has he any thing left ? And yet it is yielded, for the statute so declares, that if B. fails to record in time, A. may subsequently sell the same land to C. The right, in both cases, depends upon the law which may regulate the rights of the parties, as to justice shall seem proper. But I forbear to elaborate any further. Such being the settled rule in this State, and out of it, prior to the passage 01 the Act of 1837, (which, so far from discountenancing, rather favors the doctrine, by inference at least, for which we are contending;) and of this Court since the unanimous decision of this Court in Trueluck’s case, in 1847; and the General Assembly, with full knowledge of the old law, not having seen fit to disturb it, we think it best to adhere to the practice, however ingenious and plausible the argument submitted to the contrary, until changed by statute to operate prospectively. To overrule all past adjudications, whether ill or well founded, whether with or without sufficient authority, and establish a contrary rule, would be to overthrow a vast number of land titles in this State. No Court ought to do this. Judgment reversed. McDonald J. concurred.