Shaw v. Read

The opinion of the court was delivered, by Thompson, J. We are of opinion, that the fifth point of the defendants should have been answered by the learned judge below, in the affirmative. Had Read’s claim, to the land in controversy been evidenced by deed, which it was not, as the defendants’ title was derived through and under the first deed on record, without notice that any other existed, when it was executed and recorded, his would have been postponed by theirs, unless they had been affected by actual notice before the deed to .Shaw, which was not pretended. Time, this first deed was from Stewartson’s executors to Josiah W. Smith, who had, as their agent, contracted to sell the land in dispute, as the plaintiff alleges, to Read. Assuming it to be true as alleged, that in the contract between Smith and the elder Read, the line was to be from the whitethorn corner, and thence south, including a portion of tract 1904; the point was nevertheless correct, as the following facts will show. Stewartson’s executors conveyed the whole of tract No. 1904, by its official boundaries and call, to.Smith, on the 30th of June 1846, and the deed was duly recorded on the 6th of January 1847. On the 24th of July 1846, Smith conveyed the same by deed to Hurxthal and Clyde, whose deed was recorded on the 26th of May 1851, without notice of any equity in any one against Smith. In 1851 Clyde and wife conveyed an undivided moiety of the tract to one Wright, who, in 1854, conveyed to Smith, who had in 1851 repurchased the other half from Hurxthal, and received a conveyance for it. These conveyances were all recorded. On the 25th of August 1856, Smith, being the full and entire owner of the tract, conveyed it as bounded and described in the patent, together with one hundred acres out of an adjoining tract, to Shaw for the consideration of $5000, all paid down excepting $800 secured by judgment-bond, on which judgment was soon after entered, and he recorded his deed October 25th 1856. The deed of Stewartson’s executors to the' plaintiff below, including a prior purchase of one hundred acres, part of tract No. 1909, making one hundred and sixty acres, of which the land in dispute, about eighteen acres, is on tract No. 1904, is dated November 9th 1846, and recorded June 17th 1847, five months and near a half after Smith’s deed, under which Hurxthall and Clyde were purchasers. Shaw derived title through conveyances under the first deed on record, without notice of any intervening title or conveyance, and if the deed to Read had contained an [102] accurate description, lie having derived title through purchasers without notice, would have been protected. But it is not necessary to insist much on this, for the title on which the plaintiff claimed the land was neither on record, nor was there actual occupancy by anybody when Shaw took his deed and recorded it. The. record and ground were both silent as to adverse ownership. The way was clear, therefore, to him or any other, without notice, to purchase. The recording acts cut off every unrecorded title, and by express provision render such void, as against a subsequent purchaser for a valuable consideration, without actual notice. That no such title as claimed by the plaintiff was on record, is evident from the fact that he felt and submitted to the necessity of making parol proof of it. That it is to be found in the plaintiff’s deed is not true, else why the parol proof? Indeed it is effectually excluded by the boundaries, calls, and adjoiners given in it. No stranger could have read it, and believed, that a single foot of tract No. 1904 was contained in it, nor was there anything whatever, that would put him on inquiry dehors the deed. The official surveys and patents of tracts Nos. 1904 and 1909, each call for a whitethorn, as a common corner. And the plaintiff’s deed calls for the same, and thence south by tract No. 1904 one hundred and sixty-nine perches to a post, &c., concluding the description with the words, “ being part of tract No. 1909.” There was nothing in this to give notice that any portion of 1904 was embraced by that deed. Suppose that as against Smith, the title to the land might have passed by way of estoppel, if the testimony given by Read was accurate: it was, in the absence of actual notice or occupancy, but an equity, and a secret equity as to a subsequent purchaser; and would be extinguished by a deed from him without notice. The recording acts are worth nothing, as also is every other species of notice, if' this be not so. The doctrine may be found upon this point in 3 S. & R. 423; 5 W. & S. 49; 10 Watts 13, 407; 4 W. & S. 307 ; Story’s Equity, § 410. After conveyance for a valuable consideration, accepted and recorded, without notice of title or claim in another, derived through recorded conveyances, that cut off any previous equity or title derived from the original owners, the vendee is not to be subjected to have a piece of his tract taken from him, to be measured by the extent of unpaid purchase-money. The recording acts relieve against such a result, even when the claimant has the prior deed, by rendering it void as against the subsequent deed for a valuable consideration, first recorded, without actual notice. There was therefore'no necessity for balancing the equities between the plaintiff’s alleged original equity, and the residue of the purchase-money. It was not a case for- the application of that rule. On [103] these principles, we hold that the plaintiff was not and will not be entitled to recover, unless upon some different and better grounds than presented. James A. Read was not an incompetent witness. The circumstance that he bought the land, paid for it, and directed the deed to be made to his son, raised no resulting trust in his favour. The law regards such a transaction as an executed gift; Knouff v. Thompson, 4 Haines 357; but under the view we have taken, his testimony was not of any great consequence, excepting as it raised the question here discussed. Judgment reversed, and a venire de novo awarded. Woodward, C. J., was absent at Nisi Prius when this case was argued.