Perry Nugent & Co. v. Priebatsch

Cooper, J., delivered the opinion of the court. In Simmons v. North, 3 S. & M. 67, it was held that where by ■ mistake the words “northeast quarter” were written in a deed of trust instead of “southeast quarter,” as was intended to be done, and the deed as written was recorded, the conveyance could be cor [406] rected in a court of equity as against one who having actual notice at the time of his purchase had bought' the land at an execution sale founded on a judgment rendered in favor of a party who had no notice of the mistake in the deed at the time he recovered his judgment. In this case no notice was taken of the effect of the registry act, and it is wholly irreconcilable with subsequent decisions in which the rights of judgment creditors under the statute in relation to the registration of deeds have been considered. It is well settled in this State that a purchaser under execution is not a bona fide purchaser for value, and because he is not, does not take as purchaser any other rights than are held by the judgment defendant, but that this is so does not deprive him of the right which the plaintiff in the judgment has as creditor to subject to the payment of the judgment lands of the debtor, of the conveyance of which he has had no notice, actual or constructive. If the plaintiff in judgment may sell lands under his judgment freed from the claim of the vendee of the debtor, it follows as a corollary that one who buys takes it freed of the claim. By our statute, Code of 1880, § 1212, it is declared that “all bargains and sales of lands, tenements, or hereditaments, whether made for passing an estate of freehold or inheritance, or for a term of years, and all instruments of settlements upon marriage, wherein lands, money, or other personality shall be settled, or covenanted to be left or paid at the death of the party or otherwise, and all deeds of trust and mortgages whatsoever, shall be void as to all creditors and. subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk of the chancery court of the proper county to be recorded.” Creditors without notice and subsequent purchasers for value without notice are put upon precisely the same footing and are protected to the same extent. All conveyances of land, and all express trusts therein declared by the parties, are by our statutes required to be by deed or writing acknowledged or proved and lodged for record in the office of the [407] clerk of the chancery court of the proper county, but a trust which arises or results, by implication of law, out of a conveyance of land is valid without writing and without registration. A purchaser under a judgment against the trustee of property in which there is a trust arising by implication of law does not acquire the right of a beneficiary because he is not a purchaser for value, nor, since such trusts are not required to be recorded, is the creditor in the judgment entitled to subject the property by virtue of the registry act, but where the debtor has a beneficial interest in the property, and conveys it by absolute deed or by mortgage, or makes a declaration of trust in the land, and the conveyance or mortgage or declaration of trust is not acknowledged or proved and recorded in the manner prescribed by law, it is void'as to creditors, who, not having notice, have reduced their demands to judgment, and a purchase under such judgment is protected, not because he is a bona fide purchaser, but because the conveyance or declaration of trust is void as against the creditor under whose judgment the land is sold. Loughridge v. Bowland, 52 Miss. 546; Duke v. Clark, 58 Miss. 465; Humphries v. Merrill, 52 Miss. 92; Miss. Val. Co. v. Railroad Co., 58 Miss. 847. In Mills v. Guttman, 53 Miss. 721, it was shown that the purchaser had taken actual possession of the land sold, and this was notice to the judgment creditor of his claim to the land. Decree affirmed.