Hetherington et al. v. Clark

• Decision Date: 01 January 1858
• Citation: 30 Pa. 393
• Parties: Hetherington et al. versus Clark.
• Court: Pennsylvania Supreme Court

Page 393

30 Pa. 393

Hetherington et al. versusClark.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Schuylkill county.

Cumming and J. H. Campbell, for the plaintiffs in error.—The deed under which the plaintiff below claimed title, is a peculiar one. It is cautiously drawn, by a party whose object was to incur no risk, and the fact is patent on its face, that Bomeislers did not intend to convey any portion of the ground in dispute.

This is not the case of Poth v. Anstatt, 4 W. & S. 307, on which the court below ruled the case.There the lots were conveyed by a special description.We are within the principle of Ludwig v. Highley, 5 Barr 140.

The next question is, whether Clark proved himself to be a purchaser for a valuable consideration.It is submitted that the recital and receipt in the deed of the payment of $240 are insufficient for this purpose: Union Canal Co. v. Young, 1 Wh. 431;Rogers v. Hall, 4 Watts 359, 362.

Loeser and H. Fisher, for the defendant in error.—The recording of a derivative conveyance is no notice that title has passed out of the original grantor: Keller v. Nutz, 5 S. &R. 246;Lightner v. Mooney, 10 Watts 407;Felton v. Pitman, 14 Geo. 530.

Clark was a purchaser of whatever the record showed that Bomeisler was entitled to: Poth v. Anstatt, 4 W. & S. 307.

The question was not made in the court below as to the bonâ fides of Clark's purchase, and cannot be raised here: Baring v. Shippen, 2 Binn. 168;Wolverton v. Commonwealth, 7 S. &R. 273;Boggs v. Varner, 6 W. & S. 469; Wright v. Wood, 11 Harris 120.

The opinion of the court was delivered by WOODWARD, J.

I entirely agree with the counsel for the defendant in error, that no point was made in the court below as to a valuable consideration paid by Clark for his purchase, and therefore the case is not to be ruled here on that point.The deed acknowledges a consideration of $240, and is primâ facie evidence of it.Unquestioned below, it is not to be questioned here; but is, for all purposes for which the case is in this court, conclusive evidence that Clark paid that sum for his purchase.

And his deed, dated 27th August 1841, and recorded 13th June 1842, would, by virtue of our recording acts, have preference over Hirst's deed from the same grantor, dated 31st December 1830, but not recorded till 7th October 1847, if for the same land.An unrecorded deed is null and void as against a bonâ fide purchaser of the same land for a valuable consideration, and nothing can save it but placing it on record before the second purchaser gets his deed there.

Nor was Clark affected by the recitations in the recorded deeds from Hirst to Harvey and from Harvey to Thompson, because there was nothing on record to lead him to these deeds.So far as the record showed, Hirst was not in the channel of the title at all, and therefore his recitations, no more than those of any other man, could affect a subsequent purchaser from the same grantor.

But there was a question raised upon Clark's deed which ought to have been submitted to the jury.That was, whether it related to any portion of the land in question.

The deed grants "all lots, tracts, or pieces of land and reservations, situate in the borough of Pottsville, and county of Schuylkill, Norwegian township, state of Pennsylvania, which we now possess jointly, and separately, and are entitled to, and all and every part thereof," &c.

Now at the date of that deed, the grantors, Louis and Joseph Bomeisler, did not possess, nor were they entitled to the lot in question, because Joseph, in whom the title then was, had sold and conveyed it to William L. Hirst, by a deed of 31st December 1830.As between them and Hirst, he was the owner of the lot and their deed to him, though unrecorded, would...