Cooke's Lessee v. Kell

Le Grand, G. J., delivered the opinion of litis court. This case has been discussed at rhe bar with great fullness of illustration, and the views of the respective counsel, presented with clearness and cogency of reasoning. To our minda — looking to past and distinctly recognized ad judications — the questions we are called upon to decide are confined within a narrow space. The action is one of ejectment, and the principal facts of the case ¡nay be thus stated: On the 14th day of May 1792, a certain Joseph Bankson, by deed, conveyed (reserving to himself and wife, and to the survivor of them, a life estate therein) a certain lot of ground and the improvements thereon, to his throe children, Harriet Giles Bankson, Joseph Bankson and Elizabeth Bankson, their heirs and assigns forever, as tenants in common. The consideration for this conveyance was natural love and affection, and the nominal sum of five shillings. On the í 7th day of February 1795, the aforesaid Joseph Bankson conveyed the same property to Daniel Diffenderffer, for a valuable consideration, the wife of Bankson releasing her dower. Diffenderffer immediately took possession, and remained in it until his death in 1809 or 1810, devising the property to his wife, who continued in it until heij death, which occurred in 1832 or 1833, after which, it was sold by a trustee appointed for the purpose, and the title of Diffenderffer and wife, by legally executed and acknowledged mesne conveyances, and lastly, by a deed from Henry Dorsey, became vested in Thomas Kell, who paid for it §7000, and who remained in possession of it until bis deatii in 1846. The lessor of the plaintiff claims title under the voluntary deed of 1792, and the defendants under the deed of 1795, for a valuable consideration to Diffenderffer, and through the intermediate conveyances down to Thomas Kell, and through and from him down to themselves. The deeds of 1792 and 1795, were both placed on record in the proper office on the days of their dates. The widow of Joseph Bankson survived her husband until 1843. Elizabeth Bankson, (who intermarried with a certain John S. Cooke, since dead,) is the only child of the grantor, being a grantee in the deed of 1.792, now living, the other two — 490 — children having died without leaving issue. There was testimony given on the part of the defendants, for the purpose of showing that the elder Bankson was apparently in-needy circumstances, and that, at the time of the execution of the deed in 1795 to Biffenderffer, it did not appear, from the public records, he had any other property than that mentioned-in that conveyance, and also, that until a very short time before the institution of this action, no claim on the part of the grantees in the deed of 1792, was heard of by the witnesses. This is substantially the evidence in the cause. The plaintiff offered one prayer to the court, which was rejected, and the defendants two, which were granted. The defendants contend, that under a proper construction of the statute of 27th Elizabeth, entitled, “An act against covinous and fraudulent conveyances,” and the circumstances-of this case, the deed of 1792, under which the lessor of the plaintiff claims title, is void and of no avail as against the defendants, who claim under the deed of 1795, which was for valuable consideration; that as to them, it is void and fraudulent., there being no evidence of notice of the deed of 1792, and that it was executed with a fraudulent intent in fact. On the other hand the plaintiff insists, that neither in law,, nor in fact, was there any fraud in the execution of the deed of 1792, and that it is all sufficient to entitle her to recover in this action. The first inquiry for our determination is: What is the re-received and binding interpretation of the statute of 27th Elizabeth, ch. 4, in this State? On this, principally depends,, the decision of this case. Until the year 1807, when was decided the case of Doe vs. Manning, 9 East., 59, there was much contrariety of opinion in England — and doubtless, also in this country — as to the true meaning of the statute; since then, however, the opinion of Lord Ellenborovgh, has, in England, put to rest all judicial doubts on the subject. Were that opinion law in this State, there would be an end to the plaintiff’s title under the voluntary deed of 1792. But it is not the law. In the case of Warren & others’ Lessee, vs. Richardson & Wife, et al., decided in the year 1837, the Court of Appeals relied upon and adopted the decision of the — 491 — Supreme Court of the United States, in the case of Cathcart vs. Robinson, 5 Peters, 280, and in the case of the Mayor & City Council of Balto. vs. Williams, 6 Md. Rep., 235, this court again construed the statute of 27th Elizabeth, and again adopted the construction placed upon it by the Supreme Court. Fully concurring in the correctness of those decisions, we are relieved from all inquiry as to what may be the law elsewhere. The principal difference between the doctrine of Doe vs. Manning, and that of Cathcart vs. Robinson, consists in this: By the former, the mere execution of a voluntary deed raises the presumption — which cannot be rebutted — of fraud as against subsequent purchasers for value, whilst by the other, the rule is, in the language of Chief Justice Marshall: “A subsequent sale without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement, the burthen of proving that it was made bona fide.” This quotation from the opinion of Chief Justice Marshall, contains, to the fullest extent contended for by the counsel of the defendants, their interpretation of the statute. It does not assert the doctrine, in any sense, that a voluntary deed is void simply because it is voluntary; it merely — as against subsequent purchasers for value— makes it presumptive evidence of fraud, where there has been no notice to subsequent purchasers, and casts, in such a case, upon those claiming under it, the burthen of disproving the presumption. When the subsequent purchaser has notice, no such presumption arises, and as was said in 6 Md. Rep., 265: “To hold that, with notice to the purchaser, the settlement is subject to the presumption of fraud, simply in consequence of the subsequent conveyance for value, we think is not required by the language of the statute, and is inconsistent with correct moral feeling.” This being so, the question then is : Had Diffenderffer notice of the voluntary deed of 1792? There is no evidence in the record showing that he had, in point of fact, notice of its existence; on that head there is perfect silence. Whether or not, then, he had such notice as will bind him, and those — 492 — claiming, under him, must depend upon the effect of our registration laws. The deed of 1792 was placed on record the day of its execution, and, of course, open to inspection in 1795, when the second deed was made. in the case of Warren vs. Richardson, already referred to, decided by the late Court of Appeals, and reported in 6 Md. Rep., 272, the Reporter, in a note, has drawn the inference from the decision of the court upon the prayers offered, and from the facts appearing in the record of that case, and from the fact, that the Court of Appeals, upon the reversal of the judgment awarded a procedendo, “that, the notice which will bind the subsequent purchaser, need not be actual, but that constructive notice furnished by the recording of the voluntary deed under our registry laws, is sufficient.” In this, we think, he was correct. There was no evidence, that the subsequent purchasers in that case had any actual notice of the prior voluntary deed. If, then, the fact of the registry of the deed did not affect them with notice, we are unable to perceive for what purpose a new trial was directed under a procedendo l We think the court could not otherwise than have decided, that the registry of the deed affected the subsequent purchasers with notice, and thereby shifted the onus upon them to show, if they could, that the deed was fraudulent in fact, and for the purpose of enabling them to do this, ordered a new trial. If the registry of the deed did not have, in the opinion of the court, this effect, then, the defendants stood in the attitude of subsequent purchasers for value, without notice, and the question of law raised by the prayers, became a mere abstract proposition, the decision of which, either way, would have been of no avail to the voluntary grantees under the deed. But, be this as it may, the interpretation we have sanctioned is fully sustained by express decisions. In the case of Beal vs. Warren & another, 2 Gray, 450, the Supreme Court of Massachusetts, when speaking of a voluntary deed, under the statute of 27th Elizabeth, say: “No question is-made whether the second grantee had actual notice of the first conveyance, though, from the relation of the parties, and from the fact, that — 493 — there was no attempt to show actual fraud, such notice may reasonably be inferred. Nor would this be, in the absence of fraud, materia!; for the registration of the conveyance would be constructive notice, and sufficient notice, to all subsequent purchase's.” In the case of O’Neill vs. Cole, 4 Md. Rep., 123, the court, referring to a deed, executed by a female, a short time before her marriage, and which was contested by her surviving husband after her death, remark that, “If the appellant, (the husband,) had reason to suppose that his late wife, before their marriage, had been imposed upon, or induced to execute a conveyance of which she did not know the contents and meaning, it was quite proper for him to resist the attempt of the appellee to possess himself of the property. In this we think he has failed; and if, failing in this, he seeks to make out a case of fraud in law upon his marital rights, there is no reason why he should not be bound by the notice, which our recording acts impute to others when seeking to vacate conveyances, or when claiming against them.” In the same case, the Chancellor had previously said, 3 Md. Ch. Dec., 174, that, “It is the settled American doctrine, that the registration of a conveyance, operates as constructive notice upon all subsequent purchasers of any estate legal or equitable in the same property.” And as was said by a majority of the court, in the case of Williams, et al., vs. Banks, et al., 11 Md. Rep., 250: “"It seems to ns a contradiction in terms, to say, that a person is defrauded by an instrument, when he deals with a perfect knowledge of its existence and of its effect. If our registration laws have any operation, they certainly do, as they were designed, give notice to all the world, so that there may be no deceit practiced upon any one. If registration laws do not give notice to the community which will bind it, then they are of no use whatever, for, without registration, deeds would be binding inter partes.” This language was applied as well to deeds under the 13th, as to those under the 21th of Elizabeth. These authorities are all sufficient, in this State at least, to show that registration is constructive notice, and all sufficient to bind subsequent purchasers in the absence of actual fraud. — 494 — (Decided May 31st, 1859.) The prayer of the plaintiff was defective, only in the omission, to require the jury to find the existence of the deed of 1792. The first prayer of the defendants was erroneous, in ignoring the effect of the registration, and requiring actual notice. We do not think the facts, if found, enumerated in their second prayer, sufficient to have authorised the jury to find the deed of 1792 was not bona fide, but fraudulent and void. Ail those facts might be found, and, nevertheless, the deed might be bona fide and valid. There must be some pointed evidence to establish fraud in fact. We affirm the court below in its rejection of the plaintiff’s prayer, and reverse its decision granting the prayers of the defendants. If left to conjecture, we may imagine, that the case was a hard one on Diffenderffer, as it was undoubtedly on Kell, who paid a full pricej but it may, also, on the other side, be supposed, that Diffenderffer had actual as well as constructive notice of the deed of 1792, when he accepted that of 1795, but, that relying upon what may be very reasonably supposed, at that time, to have been the opinion of the profession, as to the true construction of the statute of Elizabeth, he believed it competent to the elder Bankson to give him a good title. But with surmises we have nothing to do. Unless the defendants can establish fraud in fact, the registration of the deed of 1792, concludes them in this action. Judgment reversed and procedendo awarded.