Anderson v. Nagle

Johnson, Judge, delivered the opinion of the Court: The first question presented is: was the lot of ground sold and conveyed by A. L. Peadro to Julia H. Nagle, subject — 103 — to the liens of the judgments recovered by plaintiff and by the First National Bank. The judgment of plaintiff, was' recovered at the October term 1868 of the circuit court of Wood county, and docketed June 16, 1871, and the judgment oí the bank was recovered at the fall term 1869 of said court, and docketed January 20,1870. The contract in writing for the sale of said land was made by Peadro to said Julia H. Nagle on the 16th day of Ján-uary 1865, hut was not recorded; the deed was executed pursuant to said contract on the 20th day of October 1870, and acknowledged the same day before the recorder of Wood county by A. L. Peadro; and was acknowledged before a notary public by the wife of said Peadro on the 26th day of June 1871, and was admitted to record on the 21st day of July 1871. Sections 4 and 5 of chapter 74, of the Code of West Virginia are as follows: “Sec. 4. Any contract in writing made, in respect to real estate or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein for more than five years, shall, from the time it is duly admitted to record, be as against creditors and purchasers as valid, as if the contract was a deed conveying the estate or interest, embraced in the contract.” “Sec. 5. Every such contract, every deed conveying any such estate or term, and every deed of gift, or deed of trust or mortgage, conveying real estate, or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county, wherein the property embraced in such contract or deed may be.” Section 7 of chapter 139 of the Code, provides that: “No judgment shall be a lien on real estate as against a purchaser thereof for valuable consideration without notice, unless it be docketed according to the third and fourth sections of this chapter in the county wherein such real estate is, either within ninety days next after — 104 — the date of the judgment, or before a deed therefor to such purchaser is delivered for record to the recorder.” In the case of McLure v. Thistle’s exo’rs, 2 Gratt. 182, it is stated, that David Agnew being the owner .of a lot of ground in the city of Wheeling, he and his wife, by deed bearing date the 23d of December 1835, conveyed the same to John MeLure, and put him in posession thereof; the privy examination of Mrs. Agnew was regularly taken on the day the deed was executed, but it was not admitted to record until the 21st of May 1842. After the execution of the deed, and when MeLure was in possession of the lot, but before the deed was recorded, judgments were recovered against Agnew by several of his creditors, among others by Benjamin T. Thistle * * *. In 1843 Thistle instituted his suit in the circuit superior court of law and chancery for the county of Ohio against MeLure, Agnew, and the judgment creditors of Agnew, and in his bill claimed that as the deed to MeLure had not been admitted to record, until after his judgment as well as those of the other creditors, whom he named, had been obtained, and Agnew had been discharged as an insolvent debtor on his execution, they were entitled to have the lot then held by MeLure applied to the satisfaction of their judgments; he therefore prayed, that the court would fix the priorities among the creditors, and that the lot might be sold, and the proceeds thereof applied to the satisfaction of their claims. MeLure answered, stating Ms purchase and payment of the whole pur chase money and the execution of the deed and his possession under it. The cause coming on to be heard, the court expressed the opinion, that the lot was subject to the liens of the judgments and directed a commissioner to ascertain the judgments which were liens upon it, their amount and priorities; and upon the coming in of the report, made a decree for the sale of the lot and the distribution of the proceeds among the creditors. Thistle having died during the pendency of the suit, it was revived in the name — 105 — of his executors; and then the commissioner having reported a sale of the lot, that report was confirmed and a final decree was made in the cause, upon the principles before declared.” From this decree McLure appealed and the court without delivering any opinion in the cause affirmed the decree. In the argument of the cause for the appellee, according to the report, William Smith, ap-pellee’s counsel, in his second point said : “It is said however, that although the deed is void, McLure’s equitable title to the lot is good against creditors. I submit that his equitable title was merged in his legal title on the execution of the deed to him, and that in no case, decided under this statute, is any countenance given to the idea that the legal and equitable title may be separated, and whilst the first is void, the latter may be valid against creditors. ” This precise question arose in the next case involving the construction of the statute, Withers v. Carter et al. 4 Gratt. 407, relied upon by appellant’s counsel in this case. The facts of the case were, that in 1834 William H. Triplett, by a contract under seal, sold to Jonathan Carter a tract of land in the county of Loudon containing about one hundred and sixty six acres at $18.00 per acre and put him in possession thereof. The terms of the sale were: that Carter should pay $600.00 on the first of June following, when Triplett was to convey the land by deed with general warranty; $600.00 was to be paid on the 1st of January 1835, and the balance, on the 1st of January 1837 ; the deferred payments to be secured by deed of trust on the land. The first two payments were made by Carter and on the 15th day of January 1835, he executed his bond for the last. On the 25th of January, Triplett and wife executed a deed to Carter for the land, and acknowledged it before two justices. This deed was delivered to a son of Carter, to be delivered to the clerk of the county court of Loudon county for record, and was by him lost, and never found. — 106 — On the 27th January, Carter executed the deed of trust, as required by his contract, and that was duly recorded. On the 4th of March 1835, Triplett assigned Carter’s bond for >$1,791.26, to John and James Withers, to be applied in part satisfaction of an execution, which they had against him. The execution had been awarded on a forfeited forthcoming bond, which was defective tor want of security, but had not been quashed, and the bond had been taken on execution, issued upon a judgment recovered by them against Triplett in 1833. The award of execution was had in January 1835, at a special term of the circuit court of Frederick county. At the same special term, a decree was entered against William S. Triplett and Grubb’s administrator, as sureties of Lord, executor of Eanney, in favor of Isaac E. Ellzra and others, legatees of Eanney ; Grubb’s administrator afterwards paid off this decree. In 1836, Carter filed his bill in the circuit court of Frederick county, in which he stated the facts as before given, and also that another small judgment had been recovered against Trip-lett by D. S. Payne & Co. previous to the judgment of Withers, or decree of Ellzra. He further stated that Grubb’s administrator threatened to have an elegit levied upon the land purchased by him of Triplett, as Triplett’s land; and having made Triplett and wife and John and James Withers, and Grubb’s administrator and others parties defendants, he prayed, that the deed of Triplett and wife, which had been lost, might be set up; that; he might be permitted to pay the balance of the purchase money into court; that Grubb’s administrator might be enjoined from proceeding to subject his land to his writ of elegit; and that the respective rights of himself and the defendants might be settled in such way as to protect him in the possession of his land. The defendants answered the bill; John and James Withers relied upon their rights as assignees of Triplett to plaintiff’s bond; and they claimed that their judgment had priority over the the decree of Ellzra and others; Grubb’s administrator — 107 — claimed that the deed from Triplett and wife to Carter, not having been recorded, the land was subject to satis-' fy the decree in favor of Ellzra and others which had been wholly discharged by him; and for a moiety of which Triplett was liable to him. By the decree, Withers and Grubb’s administrator, were enjoined from proceeding to enforce their said claims against the land purchased by Carter of Triplett. .From this decree, John and James Withers appealed. Judge Baldwin, in delivering the opinion of the court said : “It cannot be doubted that a fair purchaser of the equitable estate, has a right to hold it against creditors of the vendee, who have not previously recovered judgments. He cannot do so, it is true, at law, which only notices the legal title, but he can in equity, which notices protects and enforces the equitable title. * * . .* No one supposes that our registry law requires, in relation to bargains, sales, and other conveyances of lands, tenements or hereditaments, the recordation of the exe-cutory contract. By an amendment introduced at the revisal of 1819, (1 Rev. Code p. 365, § 13), authority is given to have title bonds and other written contracts in relation to lands admitted to record in like manner as, deeds for the.conveyance of land, and when so admitted, they are notice to subsequent purchasers of the existence of such bond or contract, but that is the only effect of the provision, which does not avoid them, either as to purchasers or creditors, if not admitted to record. It is the deed of conveyance therefore, and that only, which the law avoids for want of recordation, and the executo-ry contract is left untouched by the statute in the slightest degree. No deed of conveyance is necessary to confirm its validity, and how an abortive attempt to obtain a valid conveyance, can destroy the pre-existing equitable title is beyond my comprehension; nor can I conceive what merger there can be in regard to creditors, of the equitable estate in the legal title, by force of a deed which as to creditors is a blank piece of paper.” — 108 — The argument of the learned judge is, that the law as it then stood, only avoided the unrecorded deed as to creditors, but did not avoid the unrecorded equitable title or contract. This opinion was pronounced in 1848; at the revisal of 1849 the law which is now section 5 of chapter 74, was enacted, and was made to apply expressly to contracts in writing, as well as to deeds, and was no doubt the result of the decree of the Court of Appeals in Carter v. Withers. The learned judge says, in the last mentioned case, in reference to the decree of the court in McLure v. Thistle’s ex’or s, on page 416, “I learn it is supposed by some that the decree of this Court in McLure v. Thistles ex’or s 2 Gratt. 182, gives countenance to the idea that though a purchaser has, by an exe-cutory contract, acquired a good equitable title to the land which, until he receives a conveyance of the legal title from the vendor, is exempt in equity from intervening judgments against the latter; yet that such equitable title will avail him nothing after he has obtained such conveyance against judgments subsequently recovered, unless the deed has been duly recorded. But it was not the intention of the Court to decide any such proposition, though the reported case without close examination, may be liable to misconstruction, from the reporter’s attention not having been drawn by the court to the reason for its general affirmance of the chancellor’s decree. The case was one in which there was no evidence of an executory contract or possession prior to the deed, nor was any asserted by the defendant’s answer ; he relied simply upon his deed, his possession under it and his payment of the purchase money. I recollect distinctly that two of the judges who sat in the case, (the President and myself) were decidedly of opinion, that if it had appeared from the record that the defendant prior to the execution of the deed had acquired by his purchase a good equitable title, he ought to be protected against the judgment and we concurred in the affirmance of the decree merely upon the ground that — 109 — there was no evidence of the defendant’s right, other than the deed of conveyance.” The decree as to the injunction was affirmed. The Court of Appeals of Virginia in a recent case, Floyd, trustee v. Harding et als., 28 Gratt., has gone farther, it seems to me, in the same direction than Withers v. Carter. The facts were, that in 1856, James W. Leftwich sold to Lewis H. Turnbull, a tract of land in Bedford county. The contract was not reduced to writing, but Turnball was placed in immediate possession, and the whole of the purchase money paid by him. In January 1867, Leftwich executed to Turnbull a deed of release for the land with warranty of title. Turnbull shortly after-wards sold to Howard, and Howard in 1868, conveyed to Floyd, the appellant. In 1866 a judgment was recovered against Leftwich, the original vendor, by Board, which was duly docketed in the county court of Bed-ford. The statute under which this case was decided, is the same as ours; and the Court of Appeals unanimously held that as there was no written contract, the contract being verbal and the vendee in possession and the purchase money paid, such a contract was not avoided by the registration statute. Judge Staples, who delivered the opinion of the court, said : “ the question presented is, whether a parol contract for the sale of land so far executed as to vest in the purchaser a valid equitable title, is good against creditors of the vendor under the statute of registration.” He further says: “ But we are told, that every consideration prompting the reasons to require the recordation of deeds and title bonds, applies more strongly to mere verbal agreements for the sale of lands. A little reflection will, I think, show that this is not true, certainly not to the extent asserted in the argument. 'When the vendee has a deed, or other written evidence of his purchase, there is no hardship in requiring him to place it upon the record. It is gross laches not to do so, which the Legislature might well declare good ground of for — 110 — feiture. But in many eases the vendee has neither deed " nor title bond. “ He is often deprived of one or both, by the fraud of the vendor, or by his death, or sickness, or by some controversy in regard to the precise terms of the contract, and at last, not unirequently, he is compelled to resort to a court of equity for redress. Such cases are constantly occurring in every community. The books abound with them. To require that such contract shall be recorded, is simply to require an impossibility. * * * “ It may be conceded, that when the parol agreement is connected with the deed, and is contemporaneous with it, it must be regarded as forming part of the same transaction. In such case possession would perhaps be considered as taken under the deed and reierable to it. But where there is a parol agreement under which the purchaser takes possession, and which, of course, is valid Avithout deed, no good reason is perceived, why the subsequent execution of a deed should either invalidate the title thus acquired, or preclude proof of it in a proper case.-” In reference to the case of Withers v. Carter, the judge says: “ Before closing this opinion it is proper to add a few words in reference to the case of Withers v. Carter. It is impossible to deny that much, of what is said in that case, is equally applicable to the case before us. The reasoning, which tends to show, that under the laws in force prior to 1849, the unrecorded deed being a nullity, a written executory agreement was nevertheless valid, because not affected by these laws, will equally show that a valid parol contract is now good against creditors, although never recorded, because it is not affected by the amendment now incorporated in the statute. See 2 Minor’s Inst. 1027.” .The court below held the land subject to the judgment; and the Court of Appeals reversed the decree. We have cited this case, not to approve it, nor to express any opinion in relation to it, but to show, that even under — 111 — the principles it lays down, as extreme as they are, there is nothing in it, under which the land, sought to be‘ charged in the cause before us, would be exempt from the judgment liens. To say the least of it, the case of McLure v. Thistle’s ex’ors declai'ed that the statute avoided an unrecorded deed, and the possession under it. The principles laid down in Withers v. Carter, and Floyd, trustee v. Harding, since the amendment of the statute of 1849, renders void an unrecorded written contract, and a possession under it. The first case was distinctly approved by this Court, in Murdoch v. Welles, 9 W. Va., 552. The case here comes within the circumstances of Withers v. Carter. There was an unrecorded deed at the time the judgments were docketed, and back of that, a written contract made in 1865, under which, by the claim of the answer, the defendant, Julia H. Nagle, took possession and improved the property, and had paid all the purchase money. Even if the amendment of 1849 had never been made, the principles of Withers v. Carter would hold the lot subject to the leins of the judgments, because there is a general replication to the answer, and not a particle of proof in the record to show defendant ever had possession at all. But it is claimed in argument here, that there is a claim for affirmative relief in the answer, and the plaintiff not controverting the relief prayed for by a reply in writing, denying such allegations of the answer as he does not admit to be true, that according to the 36th section of chapter'125 of the Code, every material allegation of such new matter constituting a claim to affirmative relief * * * * * shall for the purpose of the suit, be taken as true, and no proof thereof should be required. It cannot be said that there is any claim for affirmative relief. The matters relied on in the answer are of defense to the suit; there is no prayer for affirmative relief; the only prayer is that ihe bill be dismissed, and that she have her costs. But since the amendment of 1849, the principles of both Withers v. — 112 — Carter and Floyd, trustee v. Harding et al. would hold the 'lot subject to the liens of the judgment, if she had fully proved the allegations of her answer, because she relies upon the written contract of 1865, her possession under it, the improvement of the property and the payment oí the purchase money. She does not claim that bach of her written contract she had a parol agreement, under which she held the possession. The express words of the statute avoid both the unrecorded deed and written contract. The question does not arise here whether if she had such parol contract part performed, the statute would avoid that; and we do not decide that question. We think it is clear that the lot now claimed by Julia H Nagle, is subject to the liens of the judgment of the plaintiff and the First National Bank oí Parkersburg. It is assigned as error by the appellant that, “ there was' Syllabus 2. no legal evidence of any judgment, the only evidence being the abstract from the judgment docket, kept in the recorder’s office, and no certificate attested by the clerk of the circuit court of Wood county, that any such judgment was rendered by said court or is recorded therein.” An authenticated copy from the recorder’s docket of an official abstract of a judgment, docketed under the provisions of the 3d and 4th sections of chapter 139 of the Code of West Virginia, is evidence that such abstract was docketed and when, and of notice to purchasers of land, upon which the alleged judgment is claimed to be a lien, when the existence of such judgment is properly proved; but where the judgment is put in issue, an authenticated copy of such abstract, as docketed by the recorder, will not be received as proof of the judgment, and dispense with the necessity of producing an authenticated copy of the judgment. Dickinson v. Railroad Co., 7 W. Va. 390. Syllabus 3. But in this case the answer does not put in issue the existence of either of the judgments. The defendant in her answer says: “ She knows nothing of the matters and things complained of in said bill, as to the indebtedness — 113 — of A. L. Peadro to the complainant, or of the liens set np upon the lot purchased by her of said, Peadro.” This is not a denial that the judgments, as the' bill alleges, were recovered as therein set forth. These facts are not contradicted in the answer. Section 36 of chapter 125 of the Code, provides that, “ every material allegation of the bill, not controverted by an answer, * * * * shall for the purposes of the suit be taken as true, and no proof thereof shall be required,” and she substantially admits the plaintifPsjudgment. Therefore there was no necessity of exhibiting with the bill copies of the judgments, and there was no error in the decree without such proof. It is further objected for appellant, “ that the decree for sale should not have been made before referring the cause to a commissioner, to ascertain the amount and priorities of liens, and of what property the said Peadro was possessed, and upon which the said judgments were liens.” It certainly was not necessary to refer the cause to a commissioner to ascertain of what property the said Peadro was possessed, and upon which said judgments, were liens, in view of the fact that the bill alleges, that Syllabus 6. “ the aforesaid real estate,” (the lot in question) “is all the real estate that the said A. L. Peadro, was then,” (at the date of the judgments) “ or is now seized of.” This allegation is not denied or controverted by the answer. Neither was it necessary to refer the cause to a commissioner to ascertain the liens, and fix their priorities ; as the bill alleges that the two judgments set up therein are all the liens on the lot sought to be charged, and there would have been no difficulty from the bill and exhibits for the court to fix their priorities. But the Syllabus 5. court did err in its decree, in not fixing the priorities of said liens before ordering a sale of the property. Iaege v. Bossieux, 15 Gratt. 83; Moran v. Brent, 25 Gratt. 104; Wiley v. Mahood, 10 W. Va. 206; Rohrer v. Traver’s trustee, 11 W. Va. 146 The decree declares, that both judgments are liens on — 114 — the lot; but it no where says which is prior, although it decrees one to be paid, and says nothing about the payment of the other. Syllabus 4. It is insisted in argument here, by counsel for appellant, that the lien of the bank, because it was first docketed, was prior to the lien of plaintiff’s judgment, although the judgment of plaintiff was first recorded. This position is untenable. Section 5 of chapter 139 of the Code, declares, that “ every judgment for money rendered, in this State heretofore, or hereafter, against any person, shall be a lien on all the real estate, of or to which such person shall be possessed, or entitled, at or after the date of such judgment, or if it was rendered in court, at or after the commencement of the term, at which it was so rendered, &c.” And the 7th section provides, that it shall not be a lien on.real estate against a purchaser thereof for valuable consideration without notice, unless it be docketed, &c. The 5th section certainly gives the plaintiffs here the first lien; and there is nothing in the 7th or any other section to take it away from him, if his lien was docketed within the time required by the statute as against a purchaser, &c. Both liens were Syllabus 7-8. docketed within the time required by the statute; and they should stand in the order of the recovering of the judgments, as far as the judgment creditors are concerned. The decree should also have provided for the payment of the lien of the bankas well as that of plaintiff. The decree for the reasons aforesaid will have to be reversed. The decree of the circuit court of Wood county, renderedin this cause on the 23d day of June 1876, is reversed, with costs to the appellant against the appellee, G. W. Anderson ; and this Court proceeding to render such decree as the circuit court ought to have rendered, it is adjudged, ordered and decreed, that the judgments of the plaintiff and the First National Bank of Parkers-burg are subsisting liens upon the lot of ground in the bill and proceedings mentioned; and that the judgment — 115 — of tbe plaintiff constitutes the prior lien thereon; and that the contract dated the 16th day of January 1865, executed by A. L. Peadro to Julia H. Nagle, by which he sold the lot, in the bill mentioned, to said Julia H. Nagle, and the deed executed by said Peadro to said Julia H. Nagle in pursuance of said contract on the 20th day of October 1870, not being recorded until after the said judgments were duly docketed, are as to said judgments void; and that unless the defendant, A.L. Peadro or Julia H. Nagle, or some one for them, pay off and discharge the amount of both said judgments and the costs at law together with the costs of this suit, within sixty days from this time, then the commissioner, appointed by the court below, shall sell the said property to pay the same; and this cause is remanded to the circuit court for further proceedings to be had therein according to the rules and principles governing courts of equity. The other Judges concurred. Decree Reversed.