The defendant committed the trespasses complained of, claiming under a contract for the purchase of the land from Leland, dated March 4, 1848. Assuming that the instruments executed by Helm to Leland and Skinner on the 30th of November, 1825, conveyed to them a title or an interest (Leland having afterwards purchased of Skinner), then the question arises whether the plaintiff is protected in his title under the recording act as a bona fide purchaser.
Fitzhugh, the immediate subsequent grantee of Helm, would not be protected against the prior unrecorded grant to Leland and Skinner, for the reason that he had actual notice of their title. Neither would Thornton, the grantee of Fitzhugh, be protected, because his conveyance was never duly recorded. A subsequent purchaser takes no benefit under the recording act, unless his deed is first recorded. The deeds, however, from Thornton to Smith, and from the trustees of Smith, as a non-resident debtor, to the plaintiff, were duly recorded before the instruments above mentioned from Helm to Leland and Skinner. The plaintiff has, therefore, complied with that condition of the *Page 520 statute, and his title must prevail against Leland's, unless there is some other difficulty in the way.
There is no difficulty arising out of any actual notice of the adverse title. The notice which Fitzhugh, the immediate grantee of Helm, had, does not affect any one purchasing under him without notice (Jackson v. Elstin, 12 John., 452; Varick v. Briggs, 6 Paige, 323; 8 Cow., 260); and it is not pretended that the plaintiff, or Smith, whose title he has acquired, were not bona fide purchasers, so far as this point is concerned.
It is said that all the conveyances, from Helm down to the plaintiff, must be recorded before the prior one to Leland and Skinner, in order to bring the case within the recording act; and inasmuch as the deed from Fitzhugh to Thornton, constituting one link in the chain, does not appear on the records, it is insisted that Leland's title must prevail. It is true, I believe, that under the statute a prior recorded deed is notice only to a subsequent purchaser from or under the same grantor, and consequently that such a purchaser only is within the protection of the statute, if the prior deed is not recorded (6 Hill, 469; 1 John. Ch. R., 566; 2 Barb. Ch. R., 151); but I do not find any authority for saying that all the conveyances in the chain of the junior title must be recorded, when the last grantee asserting such title is himself a purchaser in good faith and has his own deed recorded in due time. In the present case, the plaintiff not only traces his title in fact back to Helm, the common source, but the record shows Helm to have been the source, although one of the conveyances in the series is not recorded. The deeds from the trustees of Smith to the plaintiff, and from Thornton to Smith, which were duly recorded, both describe the premises as conveyed by Helm to Fitzhugh, and by Fitzhugh to Thornton on the 15th of September, 1835; the deed to Thornton being the one not on record. If, therefore, the plaintiff examined the title when he purchased, the record would carry him back to Helm, as the *Page 521 origin. The plaintiff, therefore, I have no doubt, must be regarded as a subsequent purchaser under the same grantor as Leland, and having first recorded his own deed, he is protected both by the letter and policy of the act.
But a subsequent grantee, to entitle himself to the benefit of the statute, must not only buy without notice, and put his deed first on record, but he must also purchase for a valuable consideration. I think the plaintiff must be regarded as such a purchaser. He and two others were jointly the attaching creditors of Smith, and on the sale of the premises by the trustees, he alone was the bidder and buyer. There was no other property attached and sold, and consequently all the expenses of the proceeding were payable out of this bid. Beyond that, the plaintiff either paid the money over to the trustees, or applied his bid in extinguishment of so much of the debt, and in that case he was of course accountable to his associates for two-thirds of the amount. His relations were, therefore, changed by the transaction, and he must be deemed a purchaser for a valuable consideration.
Some objections were made on the trial to the validity of the proceedings on the attachment against Smith, under which the plaintiff claims title. One of these was that the appointment of the trustees was not recorded within one month from the time it was made, as the statute requires. (2 R.S., 12, § 61.) Another was that the report of the judge before whom the proceedings were had was not made and filed within the time directed. (Id., 13, § 68.) These statutes are directory merely, and the omission to comply with them strictly does not vitiate the proceedings. Another objection was that the attachment itself was not shown. But the judge's report of the proceedings recited the process as issued by him in due form, and the statute declares that such report "shall be conclusive evidence that the proceedings stated therein were had" before the officer. Such being the effect given by statute to the report of the judge, *Page 522 it was unnecessary to go behind it for proof of any matter therein set forth. Some other objections were mentioned, but they do not require a special consideration. On examination of the proceedings, and comparing them with the statutes under which they were had, there appears to be no doubt of their validity.
The point was made on the trial that the deed from Fitzhugh to Thornton, constituting one of the links in the plaintiff's title, was void, as against the title of Leland, on the ground that it was not duly acknowledged and had no attesting witness. The statute (1 R.S., 738, § 137) declares that a deed "not so attested shall not take effect, as against a purchaser or incumbrancer, until so acknowledged." Such a deed is, however, good between the parties to it, and we think it is only a subsequent purchaser or incumbrancer who can take the objection. If the formalities of attestation or acknowledgment had been duly attended to, still the prior conveyance (if such we call it) to Leland and Skinner would prevail, but for the operation of the recording statute. The section referred to clearly implies that the deed would take effect against a purchaser or incumbrancer, if acknowledged or attested; but as such could not be the effect, as against a prior conveyance or incumbrance, the inference would seem to be plain that the statute has no application to such a case.
Some other questions were presented on the argument, but if they were all determined in the defendant's favor it would not change the result. Under the views which have been stated the plaintiff made out a title to the premises, and the finding and judgment in his favor were therefore right.
The judgment should be affirmed.