Morton v. Robards
| Decision Date | 16 June 1836 |
| Citation | 34 Ky. 258 |
| Parties | Morton v. Robards and Others. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR OHIO COUNTY.
Messrs Morehead & Brown and Mr. McHenry for appellant.
Mr Pirtle and Mr. Chapeze for appellees.
Facts of the case.
On the 18th day of October, 1788, Joseph Lewis executed his bond, to Lewis Robards, in which he acknowledged, that said Robards was equally interested with him in upwards of thirty thousand acres of land warrants, that were in his name, and covenanted to convey to him the one-half of the land acquired, by virtue of said warrants, after deducting the one-half given to the locator.
In pursuance of this covenant Lewis, on the 2d day of March 1825, after the death of said Robards, conveyed to his heirs the defendants in error, four thousand acres--part of a tract of 9,728, in Ohio county, acquired by virtue of a part of said warrants. Said deed was acknowledged before the clerk of Nelson County Court, by said Lewis and certified by him for record in the county of Ohio, and transmitted to an attorney of the county, to be lodged in the office for record. The attorney, fro?? some information received, apprehending that there was some mistake in some of the calls, failed to lodge it for record, but held it up, with a view to have the supposed mistake corrected, until after the time for recording had expired.
On the 27th day of April, 1826, an execution of fieri facias was placed in the hands of the sheriff of Ohio county, in favor of Richard Morton, against said Lewis, founded on a decree of the Ohio Circuit Court, for two hundred and ten dollars damages on the dissolution of an injunction, and costs, obtained at the October term, 1825; and said execution was levied on all the interest, right and title of said Joseph Lewis, in and to said tract of nine thousand seven hundred and twenty-eight acres, and the same was sold, and Isaac Morton, the son of said Richard, became the purchaser, at thirty-three dollars, and received the sheriff's deed for the same, dated the 4th day of September, 1826.
Robard's heirs had two tenants living on said land, claiming under them--one from November, 1822, the other from before the sheriff's sale until after the said sale; and said Isaac Morton, who seems to have acted as agent for his father in the management of said execution, was advised, of said deed, on the day of sale, before the land was sold, by the attorney who had it in his possession.
The bill.
Robard's heirs filed their bill in Chancery against said Morton, charging notice, and relying upon their superior equity, and praying that Morton might be compelled to yield up to them the legal title; and obtained a decree therefor, in the Circuit Court: from which Morton has appealed to this Court.
Reference to former decisions of this court upon the effect of notice of a prior equity, upon the purchase of an estate at a sale under execution; and now held, that--an equitable title to land will prevail, in chancery, against the legal title acquired by a purchaser under execution who had notice of the equity, before his purchase; but his purchase might, perhaps, relate back to the time of the levy, or even to the time when a lien on the land accrued by force of the execution; page 262. The act concerning conveyances relates to the legal title only, leaving equities untouched. It takes from the holder of an unrecorded deed his legal priority, and leaves him without any advantage over the general creditor; but the omission to record the deed, does not impair the grantee's equity. And--
An unrecorded deed is itself evidence of a purchase for a valuable consideration, and, as evidence of an equity, is, at least, equal to a bond for a title.
There has been some oscillation in the decisions of this Court, on the question involved in this record.
In the case of Helm v. Logan's heirs, 4 Bibb, 78, the Court decided, " that a purchaser under execution is not affected by his notice of a mortgage, which was not recorded, and therefore void as to creditors."
In the case of Campbell & c. v. Moseby, Lit. Sel. Cases, 358, a majority of the Court decided, that the equity of the holder of a bond for a conveyance, was paramount and superior to the title of a purchaser under execution, with notice, and broadly asserted the opinion, that the equity of the purchaser by unrecorded deed, was superior to, and would prevail in a contest with the general creditor; or a subsequent purchaser under execution with notice.
And in the case of Graham v. Samuel, (1 Dana, 166) a majority of the Court sustained the principle, settled in the case of Helm v. Logan, and overruled the opinion expressed in the case of Campbell v. Moseby.
Upon a full review of those decisions, and comparison of them with the English decisions upon their registry acts, we are inclined to the opinion expressed in the case of Campbell and Moseby.
It seems to have been the intention of the Legislature, in our act, to regulate the legal conveyance only, and to leave untouched the equity of the parties. The act concerns legal conveyances only, and undertakes to regulate them, and provide the manner and mode of their consummation. The title of the act is " an act to reduce into one the several acts or parts of acts for regulating conveyances; " and the language of the act is: " That no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing sealed and delivered, nor shall such conveyance be good against a purchaser for a valuable consideration, without notice, or any creditor, unless the same be acknowledged, & c., within eight months, and lodged for record, & c."
The conveyance or legal title, may not be good, and yet the equity of the holder unimpeachable. The legal title under the above statute is not good, unless there be a seal to the deed, yet no one could doubt, that a deed without a seal would confer upon the holder a specific equity, which might be enforced in a Court of Chancery.
So a bond for a conveyance is not good as a legal title, yet valid as an equity. If it were the object of the Legislature to forfeit the equity, as well as the legal title, for the benefit of purchasers and creditors, it could not well have escaped their observation, that it was necessary to provide for the recording of secret bonds for a title, and for the forfeiture of the equity of the holder, in case of a failure yet no provision is made with respect to bonds. We can not conceive--whether we look at...
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