Braxton v. Bell

• Decision Date: 21 November 1895
• Citation: 92 Va. 229,23 S.E. 289
• Parties: BRAXTON v. BELL et al.
• Court: Virginia Supreme Court

23 S.E. 289

92 Va. 229

BRAXTON

v.BELL et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1895.

Chattel Mortgages—Recording—Notice— Priorities.

1. Code 1887, § 2463, provides "that every contract not in writing, made in respect to real estate or goods and chattels, in consideration of marriage, or made for the conveyance of real estate, " shall be void as to bona fide purchasers. Section 2464 provides that "any such contract, " if in writing, shall be valid, as against such purchasers, from the time it is recorded. Held, that the recording of a contract in regard to personalty is not authorized, unless in consideration of marriage, and therefore a recorded contract for the conveyance of land for a moneyed consideration, which requires the grantee to secure the purchase price by mortgage on all personalty placed on the land, is not notice of such provision to subsequent purchasers of the personalty from the grantee. Dictum in Bank v. Turnbull, 32 Grat. 695, disapproved.

2. The title of a bona fide purchaser of personalty is superior to the claim of a person based on a prior agreement of the vendor giving him a lien thereon by deed of trust.

Appeal from circuit court, Augusta county; William McLaughlin, Judge.

Suit between Carter Braxton, trustee, and H. M. Bell and others. From a decree for the latter, the former appeals. Reversed.

A. C. Braxton, for appellant.

R. P. Bell, for appellee.

RIELY, J. On April 7, 1888, as is evidenced by the contract of that date, H. M. Bell sold to Frank Chichester and Robert L. Stewart the real estate in Augusta county known as "Stribling Springs" for the sum of $15,000, to be paid in installments extending over several years, for which the vendees were to execute their bonds, and secure them by a deed of trust on the real estate, and also by a deed of trust on any personal property they might thereafter put on the premises. The contract of sale was acknowledged and admitted to record in the clerk's office of the court of Augusta county on July 3, 1888. The vendor conveyed the land to the vendees by deed bearing the same date as the contract, but it was not acknowledged for record until October 3, 1888. A deed of trust to secure the bonds for the purchase money was given by the vendees onthe land only, which likewise bears the same date as the contract, but it was not acknowledged for record until October 5, 1888. The vendees took possession of the land, and afterwards put on it a large amount of personal property that was needed to equip the place as a summer resort; but the deed of trust on such personal property to secure further the purchase money for the land, as contemplated by the contract of sale, was never made. On November 13, 1893, Chichester & Stewart conveyed their personal property by deed to Carter Braxton, in trust to secure their creditors other than Bell, which deed was duly acknowledged and admitted to record on the day of its date. The controversy here is between the trustee, Braxton, and H. M. Bell, as to the right to the personal property. The former claims it as a bona fide purchaser for value without notice, by virtue of the deed of trust conveying it to him; and the latter claims it under the agreement in the contract of sale of April 7, 1888, to give him a deed of trust on the personal property which they might thereafter put on the land, as additional security for the purchase money.

It is settled by a number of decisions of this court, which are collated in the case of Chapman v. Chapman (Va.) 21 S. E. 813, that a trustee in a deed of trust is, under our statutes, a purchaser for value. It is not pretended that Braxton, the trustee, had actual notice of the agreement of Chichester & Stewart to give to Bell a deed of trust on the personal property as a further security for the purchase money for the Springs property; but it is claimed that, the contract of sale having been recorded, he was affected with constructive notice of such agreement. Many conveyances and other writings are required by the statute law of the state to be recorded. A list of many of them will be found in 2 Minor, Inst. 850. The statutes which it is claimed apply to this case are sections 2463-2465 of the Code. They are as follows:

"Sec. 2463. Every contract, not 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, for a term therein of more than five years, shall be void, both at law and in equity, as to purchasers for valuable consideration without notice and creditors.

"Sec. 2464. Any such contract, if in writing, 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. 2465. Every such contract in writing, 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 subsequent purchasers for valuable consideration without notice, and creditors, until and except from the time that it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be."

The writing of April 7, 1888, wherein is contained the agreement of Chichester & Stewart, and whose recordation is relied on to affect the trustee, Braxton, with constructive notice, is not a deed, but simply an agreement or contract to give a deed. Not being a deed, but only a contract, the inquiry is, is a contract in regard to personal property embraced within the statutes quoted above, and authorized to be recorded? There is but one species of contract in regard to goods and chattels embraced within the provisions of section 2463, and that is a contract in consideration of marriage. Section 2464 provides that "any such contract" (that is, such contract as is described in the preceding section, and, so far as goods and chattels are affected, a contract made in consideration of marriage), "if in writing, shall, from the time it is 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." And by section 2465 it is provided that "every such contract in writing" (that is, still, such contract as is described in section 2463, which, so far as it relates to goods and chattels, is, as we have seen, a contract made in consideration of marriage), and "every deed conveying any such estate or term, and every deed of gift, or deed of trust, * * *...