Newman v. Chapman
| Decision Date | 06 December 1823 |
| Citation | 23 Va. 93 |
| Parties | Newman v. Chapman |
| Court | Virginia Supreme Court |
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Appeal from the Chancery Court of Fredericksburg.
George Chapman, jun. filed his bill stating, that a certain John Armistead of the county of Caroline, died in 1788, leaving a large estate in lands, negroes, and other property, which he devised to his children: that, his son William Armistead received the portion allotted to him, and gave a mortgage upon his land; which mortgage was afterwards assigned to a certain Jesse Simms: that the said Simms brought a suit in the Chancery Court of Richmond, to foreclose the said mortgage, and obtained a decree, by virtue of which the land was duly sold; the said Simms became the purchaser, and the Court confirmed the sale; whereby, he became the lawful proprietor in fee, of the said land and appurtenances, so far as the title of the said William Armistead was concerned; and the said Simms was entitled to be put in possession of the same, subject only to the claims of such persons as should have right derived from any other person than the said William, or derived from him prior to the said mortgage or suit in Chancery to foreclose, as aforesaid: that the sale and conveyance of the commissioners was made on the 13th of July, 1804, and on the 13th of August in the same year the said Jesse Simms conveyed the said tract of land with its appurtenances to the complainant, in consideration of $ 11,400, which the complainant had previously paid to the said Jesse Simms, he not supposing that any dispute could be raised concerning a title, acquired and confirmed by the authority of the Court of Chancery; to which he is now obliged to apply for its further aid to effectuate its own decree: that a part of the said land, viz: about 593 acres is in possession of Thomas Newman; another part consisting of about acres is in possession of Richard Newman; and the residue is still in possession of the said William Armistead: that, Thomas and Richard Newman have no other title or claim to the said land, except that derived from the said William Armistead, subsequent to the institution of the said suit of Jesse Simms, and while it was pending in the said Superior Court of Chancery: that the said William Armistead has been in the receipt of the profits of the lands in his possession, by which he has principally maintained his family, and has rendered no account thereof to the complainant: that the rents and profits of the portions of land in possession of the said Thomas and Richard Newman, have been received by them, in like manner, and no account rendered to the complainant: that all these persons refuse to deliver possession to the complainant of the said lands, and also refuse to account for the profits, according to their respective receipts and enjoyments: that no writ of habere facias possessionem was issued from the said Superior Court; and the said Jesse Simms is dead, insolvent, and has no representative known to the complainant: that, in a case so complicated, the complainant is advised to apply to the Court of Chancery, to carry into effect its own decree, in such manner as shall be consistent with the just rights of all persons who do not claim title from or under the said William Armistead, since the pendency of the said suit of the said Jesse Simms, whose bill was filed on the 12th day of May, 1797; but, with regard to the said William, the complainant is advised that the said decree and proceedings of sale are final and conclusive. He therefore prays, that the said Thomas and Richard Newman, and William Armistead, may be made defendants to this bill; [*] that the decree aforesaid may be carried into effect, in favor of the complainant, against the said William Armistead, and all persons claiming under him, since the 12th day of May, in the year 1797, & c.
Thomas Newman answered, that he had purchased of William Armistead, at different times, between the years 1793 and 1797, about 326 acres of land, out of the tract in the bill mentioned; that the deeds will fully shew, at what time the purchases of the said land were made, except as to 47 acres, which were purchased in October, 1793; but, that the defendant did not get a conveyance from the said William Armistead, until the month of July, 1797, at or about which time he purchased a further quantity of 104 acres, and both purchases were included in the same deed; that the defendant never knew any thing of the existence of the suit in Chancery for the sale of the lands in the bill mentioned, until long after he had completed his purchases of the aforesaid lands of William Armistead; nor had he ever seen any thing of the mortgage in the bill mentioned; nor did he know that any such mortgage existed, until he had completed those purchases and obtained his deeds; that the defendant also purchased of John B. Armistead, who had, before that time, purchased of William Armistead, about 513 acres of the same tract of land, on or about the month of April or May, 1800, but did not get a conveyance for the same, until the month of April, 1801; that at the sale by the commissioners, the defendant attended with his deeds, and forbade the sale, as it would be illegal, and the title was in him. He therefore charges, that the complainant, before he purchased of Simms, was fully apprised of the title of the defendant.
Richard Newman stated in his answer, that, as to the transactions between William Armistead and Abraham Morehouse, and the mortgage of land to him by the said Armistead, he had heard nothing, until several years after he had purchased of William Armistead 163 acres of land, at 40 shillings per acre, and had the deed for the same recorded in the County Court of Prince William, which record was made in October, 1793; and, when he did hear that such a mortgage was in existence, he also heard that it had not been recorded in due time to give it validity against the claim of a third person. He, therefore, hopes, that his title to the lands purchased of William Armistead, may not be affected by any decision relative to the said mortgage, & c.
The deed of mortgage from William Armistead and wife to Abraham Morehouse, was dated on the 3rd day of December, in the year 1794; which mortgage was assigned by David Allison, as attorney for the said Morehouse, to the said Simms, by virtue of a power of attorney, which was attested by only two witnesses.
A deed from William Armistead and Nancy, his wife, and John B. Armistead to Thomas Newman, conveying 151 acres, is dated on the 11th day of September, 1797.
A deed from William Armistead to Thomas Newman, dated the 26th day of September, 1793, for 175 acres.
The bill to foreclose, brought by Jesse Simms against William Armistead, was filed on the 12th day of May, 1797.
The deed made by the commissioners for the sale of the land, under a decree of the Court, to Jesse Simms, is dated on the 13th day of July, 1804.
The deed from Jesse Simms to George Chapman, the plaintiff, conveying the tract of land on which William Armistead then lived, containing 1140 acres, more or less, being the same that the said Armistead conveyed to Abraham Morehouse, by deed of mortgage, dated the 3rd of December, 1794, and by the said Morehouse assigned to the said Jesse Simms.
The mortgage from Armistead to Morehouse was not recorded within the time prescribed by law.
The deed from William Armistead to Richard Newman, conveying 163 acres, is dated the 27th day of September, 1793.
William Armistead never answered the bill.
The Chancellor decreed, that William Armistead and Thomas Newman should severally deliver up to the plaintiff, possession of all the lands held by them, mentioned in the deed of mortgage between Armistead and Morehouse, except 175 acres described in the deed of the 26th of September, 1793, between the said Armistead and Thomas Newman; and, that one of the commissioners of the Court should make up an account of the rents and profits of the lands so directed to be given up, from the 9th day of August, 1804.
Thomas Newman appealed to this Court.
Stanard, for the appellant.
The question is, whether the mortgage to Morehouse was valid against Thomas Newman, the purchaser from William Armistead? I contend that it is void; because, whatever notice Newman may have received of the existence of the mortgage, if it was not recorded, he might have purchased with impunity. This doctrine is derived from a just construction of the act of Assembly, relative to conveyances. The act in the Revised Code, p. 157, § 4, (old edition,) declares, that all mortgages whatsoever shall be void as to " all creditors and subsequent purchasers, unless they shall be acknowledged, or proved, and recorded according to the directions of this act." In this respect, it differs from the first section of the same act, which declares, that, as to the conveyances therein mentioned, such conveyances shall be void against subsequent purchasers, & c. not having notice thereof, & c. The omission of this last expression, in the 4th clause above mentioned, clearly indicate the intention of the Legislature, that no mortgage should be good against a subsequent purchaser, unless it is duly recorded.
But, if notice of a previous conveyance will affect a subsequent purchaser, it must be notice direct and personal, not implied. Lord Redesdale, in the case of Underwood v. Lord Courtown, 2 Sch. & Lefr. 66, gives a definition of constructive notice, in conformity with these ideas. A lis pendens is not a sufficient notice. The suit to foreclose was brought by Simms against Armistead. Morehouse was not a party. It does not, therefore, bind upon the rights of Morehouse, and...
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