Vest v. Michie
| Decision Date | 28 November 1878 |
| Parties | VEST v. MICHIE. |
| Court | Virginia Supreme Court |
1. V one of the witnesses to an unrecorded deed of trust upon land to secure debts, afterwards became the purchaser of the land from the grantor in the deed of trust, and paid the purchase money. Upon a bill to enforce the deed of trust, charging V with notice of the deed of trust, which he denied--HELD: The mere fact that he had attested the deed is not sufficient to affect him with notice of the deed of trust.
2. To affect a purchaser for value of land with notice of an unrecorded deed of trust, the evidence must be sufficient to prove him guilty of a fraud.
This was a suit in equity in the circuit court of Louisa county brought by Charles H. Michie against James M. Vest, George H Bramham, and the executor of John R. Quarles to enforce the payment of the balance of purchase money of land sold to Bramham by Michie, and afterwards sold by Bramham to Vest. Bramham had given a deed of trust on the land to secure the purchase money, and both the deed by Michie to Bramham and the trust deed were executed at the same time, and both were attested by Vest as one of three subscribing witnesses; but the deed of trust was never recorded. Vest answered, denying all knowledge of the deed of trust when he purchased and paid for the land, and there was no evidence on the subject; and the only question in this court was whether his having attested the deed was sufficient to establish the notice to him.
The cause came on to be heard on the 22d of September, 1873, when the court held that Vest had notice of the deed of trust, and that the land was subject to satisfy the balance of the purchase money due from Bramham to Michie. And thereupon Vest applied to this court for an appeal; which was allowed. The facts are stated by Judge Anderson in his opinion.
Guy & Gilliam and F. V. Winston, for the appellant.
John Hunter, for the appellee.
Charles H. Michie, by deed bearing date the 2d of February, 1859, conveyed certain lands to George H. Bramham, in the county of Louisa, for the consideration of $7,500, the receipt whereof is acknowledged on the face of the deed; and on the same day the said George H. Bramham conveyed the said lands to John R. Quarles in trust to secure the payment of three bonds, each for $2,500--one payable the 1st of May, 1859, one payable the 1st of May, 1860, and the other payable the 1st of May, 1861; the two last bearing interest from the 1st of May, 1859--which bonds were executed by the said Bramham to the said Michie for the purchase money of the said lands. Both deeds are witnessed by Charles Quarles, James M. Vest, and William J. Johnston.
On the 1st of October of the same year George H. Bramham and wife conveyed the same lands, by deed of that date, to said James M. Vest for the consideration of $7,500, the receipt whereof is acknowledged by the deed. The deed from Michie to Bramham, and the deed from Bramham to Vest, are both admitted to record on the same day--January 16, 1860--the former being proved by two of the subscribing witnesses, William J. Johnston and James M. Vest. The deed of trust has never been recorded. But some time after it was executed, and before Bramham sold to Vest, Michie removed to Missouri and carried it with him, but left the second and third bonds here in the hands of his attorney. The first bond has been wholly paid--and probably before he left--and the second bond, as admitted by the bill, up to the 22d of February, 1861, had been paid with the exception of $135 or $140, due as of that date. The third and last bond is wholly unpaid. And this bill was brought to enforce the deed of trust and subject the lands to sale to satisfy the balance due. The bill alleges that although the deed of trust was never registered, the subsequent purchaser had notice of its existence when he purchased from Bramham and paid him the purchase money, and that the lands in his hands are chargeable with the debt secured to him by said deed of trust; and he relies upon the fact of his having witnessed the deed, under the circumstances, as evidence that he had notice.
Whilst it is held that the fact of notice may be inferred from circumstances as well as proved by direct evidence, the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the imputation of mala fides. 3 Gratt. 494, 545, Munday v. Vawter & als.; 2 Gratt. 280, 313, McClanachan & als. v. Siter, Price & Co., and 2 Johns. C. R., Day v. Dunham, 182. Professor Minor, in his admirable work, says the effect of the notice, which will charge a subsequent purchaser for valuable consideration, and exclude him from the protection of the registry law, is to attach to the subsequent purchaser the guilt of fraud. It is, therefore, never to be presumed, but must be proved, and proved clearly. A mere suspicion of notice, even though it be a strong suspicion, will not suffice. 2 Min. Inst. 887, 2 edi., and cases cited.
The proof relied on in this case is that the appellant was a subscribing witness to the deed of trust under circumstances which, it is contended, show that he was apprised of the existence and contents of the deed of trust. Sugden says the better opinion is, that being a witness to the execution of a deed will not of itself be notice; for a witness in practice is not witness to the contents of the deed. 2 Sugd. Vend., bottom p. 1060, top 563. In Welford v. Beezley, 1 Ves. Sr. R. 7, Lord Chancellor Eldon said: " I do not think the bare attesting a deed as a witness will create such a presumption of his knowledge of the contents as to affect him with any fraud therein; for a witness is only to authenticate it, and not to be presumed privy to the contents." Lord Kenyon held, in Harding v. Crethorn, 1 Esp. N. P. C. 56, that the mere subscribing an instrument as a witness should not bind the party unless there was some evidence that he was acquainted with its contents at the time.
The only case I have found which holds a different doctrine is Mocatta v. Murgatroyd, reported in 1 P. Wms. 393; and the editor remarks that it has generally been disapproved of, and cites authorities to...
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