Humphreys v. Merrill

■Simrall, C. J., delivered the opinion of the court. [93] On tbe 15th of February, 1860, J. W. S. Merrill made^ a contract of sale of the lands in controversy to Hyeronomous. This contract was recorded the 16th of September, 1867. The-instrument (a bond for title) was assigned by Hyeronomous on the 18th of October, 1865, to Exum, who, on the 15th of January, 1866, on the consideration of love and affection, assigned to Anna M. Merrill, to whom J. W. S. Merrill, on the-12th of May, 1867, made a conveyance, in fulfillment of his. contract. B. G. Humphreys, on the 12th of October, I860,, recovered a judgment against Merrill, which was duly enrolled.. The land in litigation, being parcel of those lands embraced in. the contract between Merrill and Hyeronomous, and the deed ■of the former to Anna M. Merrill, was sold by the sheriff under the judgment, and bought by the creditor, B. G. Hum-phreys. The complaint made in the bill by Anna M. Merrill is.that, the sale by the' sheriff and his conveyance to Humphreys is a, cloud, as to two-thirds of the land, upon her title. The relief prayed is that it may be removed by setting aside the deed-The question of law is, what was the right of Humphreys to sell the land as the property of Merrill, and how is the question affected, if at all, by the registry laws? The principle declared in Henderson v. Downing, 24 Miss., 106, and Harper v. Tapley, 35 Miss., 506, is that a prior-unrecorded deed of the judgment debtor is void as against his. creditor, of which he had no notice at the date of his recovery and the acquisition of his lien. A knowledge of the conveyance-acquired subsequent to the attachment of the lien will not affect or displace it. Articles 19, 20, 21, 23, pp. 309, 310, of the Code of 1857, were considered in the late case of Claiborne v. Holmes et al., 51 Miss., 146, decided at this term. The 21st section, denounces as void all the instruments therein named, as against subsequent purchasers for value and creditors without notice, unless acknowledged or proved and lodged for record, etc. All such instruments, except deeds of trust and mortgages, if [94] deposited with the clerk within three months, take effect from their execution. Art. 24, pp. 210, 211, authorizes the acknowl-edgement or proof of every title-bond or other written contract in relation to land, and the delivery thereof to the proper clerk for record, which shall be taken and held as notice to all subsequent purchasers, etc. The complainant does not allege notice of the sale and pun-chase to those who might be or become interested, otherwise than by registration, long after Humphreys recovered his judgment. Hyeronomous’ purchase from . Merrill was secret, and unknown to Humphreys at the time he recovered his judgment. If he had been a purchaser, with an absolute unregistered deed, instead of bond for title, the case would fall literally within arts. 21, 23, and the cases above cited. The transaction would have been as though it had never been made, and the title would have remained with Merrill for the purposes of satisfying the judgment. The registry laws were very thoroughly considered and expounded in the case of Dixon & Starkey v. Lancaster, 1 S. & M., 96 to 107 inclusive, and the opinion expressed that creditors are put, as to notice, upon the same .footing with purchasers. The language of the chief justice is, 4 4 that creditors with notice are as much within the spirit and meaning of the whole act as prarchasers with notice.” The piolicy of the statute is to make void secret sales and •conveyances by debtors, whereby prarchasers and creditors without notice wbuld be deceived and injured. As to them the •statute treats the title as still remaining in the grantor, and as piassing by the subsequent conveyance or liable to creditors. 'The prarchaser under the judgment refers his right, through the sheriff’s deed, back to the judgment audits lien, and obtains all the rights in that respaect of the creditor. Chief of these is the pirivilege to appropriate the property of his debtor to sale under his judgment, in praeference to any title transferred by á .secret sale to a third poerson. The law imposes the duty upon a prarchaser to spraead his muniments of title upran the prablic records, so that it may be [95] .known that he is owner. If he fails to do that he takes the risk of a subsequent sale, for value, of the property by his vendor, or of its subjection to his debts ; nor can he prevail against .such purchaser or creditor unless he can charge the purchaser •or creditor with notice, of his prior right. The complainant has entirely failed to show that she is the ‘ ‘ real owner ’ ’ of the land, and that the deed of Humphreys is a mere shadow upon her title. Wherefore the decree is reversed, and judgment rendered .in this court dismissing the bill.