Barlow v. Beall

The opinion of the Court, was delivered by Lowrie, J. The simple question is, are the memoranda on the margin of the docket and execution, naming the attorney in the cause, so far a part of the record as to charge a purchaser of land from or under a sheriff’s vendee with notice that such vendee was the attorney of the plaintiff, and therefore a purchaser in trust for Mm ? In other words, when a person is buying land which has a sheriff’s deed in its chain of title, must he examine the records of the Court, to see whether the sheriff’s vendee was the plaintiff’s attorney in the judgment on which the sale was made, and then, if he was, inquire whether he purchased the land with his own money or with the plaintiff’s ? •In the Court below, this question was improperly answered in the affirmative. Such a decision extends too far the doctrine of constructive notice, adds greatly to the uncertainty of titles under sheriffs’ sales, and to the difficulty of deciding upon them, and requires purchasers to be suspicious, even where all seems to be honest. Every presumption is made in favor off'the subsequent purchaser; and hence, even a recorded deed is no notice to him, if it be improperly acknowledged; and recitals, even in the. very deed under which he claims, are not, without caution and many exceptions, to be held equivalent to notice: 6 W. & Ser. 469. [180] And here there is no evidence on the• record that the attorney receipted for the proceeds of the sale, and, without it, it may he doubted whether the fact that he issued the execution is even evidence, by itself, that he controlled the sale. The plaintiff may have done it himself, and then the attorney could not be held as trustee by implication. If he is held as trustee' because he used his client’s money in buying the land, then it is.entirely a secret trust, of which the subsequent purchaser must appear to have had actual notice. The memoranda on the dockets and writs, marking the attorney’s name, are put there for a mere temporary purpose, to show who, during the progress of the cause, acts for the parties. They do not import verity, as a record does, and they are often untrue. They are not properly part of the record, and if the proceedings were formally enrolled, or a copy of them formally prepared and certified, these entries would not appear. That only which is necessary to a complete record is properly a part of it, for the purpose of notice to third persons. Judgment reversed, and judgment in favor of the defendants below, on the point reserved.