The plaintiff is entitled to recover in this action, provided he or any one through whom he derived title can be regarded as a purchaser of the premises on which *Page 523 the trespass was committed, in good faith and for a valuable consideration. Whatever estate Leland may have had, whether an absolute title to one-half, and a power coupled with an interest as to the other half, or whether the power extended to the entire premises, it was equally subject to the operation of the registry act.
The question then is, was the plaintiff or his predecessors in title, or any of them, a bona fide purchaser for a valuable consideration? The plaintiff can stand upon his own purchase or that of any one through whom he traces title back to the common source. If any one of them stands in the attitude of a bonafide purchaser, and is entitled to the protection of the registry act, then the plaintiff should recover, as the conveyance to Leland and Skinner was not recorded until after those under which plaintiff derives title, with the exception of the one to Thornton.
Fitzhugh was not a bona fide purchaser; he had actual knowledge of the outstanding conveyance to Leland and Skinner. The conveyance to Thornton was never recorded, and he, therefore, would not be protected against the prior conveyance. But Thornton conveyed to Smith, from whom the plaintiff immediately derives title. This conveyance, which is in the ordinary form, expresses a consideration of $2000, and was properly acknowledged and recorded. There is no pretence that Smith knew of any outstanding title or equity in Leland and Skinner. He purchased in good faith, and the receipt of the consideration in the deed of his grantor is prima facie evidence of payment of the sum expressed. (Jackson v. McChesney, 7 Cow., 360.) Under the recording act, therefore, Smith was presumptively a bona fide purchaser for a valuable consideration, and the plaintiff succeeded to all his rights. The premises being wild and unoccupied land until after the time the plaintiff acquired his title, there is no ground for any constructive notice of an outstanding title. *Page 524
It was insisted upon the argument that the plaintiff's title must fail because of the want of a link in the chain; because the deed from Fitzhugh to Thornton was not acknowledged and had no subscribing witness, as required by the statute. (1 R.S., 738, § 137.) The delivery of the deed signed by Fitzhugh was not disputed. It seems to me that neither the defendant or Leland and Skinner stand in a position to raise any question under the statute. The statute only applies to subsequent purchasers, and not to those deriving title from the main grantor prior in time.
A conveyance which has no subscribing witness, and which is not acknowledged at the time of its delivery, is not rendered ipsofacto void by the statute; it is simply declared to have no effect, as against a purchaser or incumbrancer, until acknowledged. The deed operates to transfer the title, as between the parties, subject to rights subsequently acquired by third persons.
In view of the right of the plaintiff under the title of Smith, it may not be essential to inquire whether he can himself be regarded a bona fide purchaser for a valuable consideration. There is no suggestion that his purchase was not in good faith; that he was not entirely ignorant of any claim or title outstanding. As to the consideration paid, I do not see any reason why the receipt of the payment of the consideration expressed in his deed from the trustees in the insolvent proceedings against Smith, should not have the same force and effect as the receipt in a conveyance directly inter parties.
But, aside from this, I think the plaintiff showed affirmatively that he did pay a valuable consideration. It is well settled that, in order to constitute a bona fide purchase for a valuable consideration, within the meaning of the recording act, the purchaser must, before being notified of the prior equity of the holder of an unrecorded deed, have advanced some new consideration, or relinquished some security for a preëxisting debt due to him. The mere *Page 525 receiving a conveyance in payment of a preëxisting debt is not enough. (Dickerson v. Tillinghast, 4 Paige, 215; 4 Kent, 168.)
In this case no security for an existing debt was relinquished. The plaintiff obtained his deed under the statutory proceeding against Smith, an absent debtor. I do not perceive how the case is distinguishable from that of a conveyance obtained by virtue of a statutory sale by a sheriff, on execution. The validity of a sheriff's deed, against a prior unrecorded conveyance by the judgment debtor, has been repeatedly recognized, and, I think, properly, (Parks v. Jackson, 11 Wend., 442; Tuttle v.Jackson, 6 id., 213.) The two methods of sale and conveyance are analogous; both are judicial or statutory proceedings.
It is true, the plaintiff, who was the creditor of Smith, or one of the creditors, paid no new consideration at the sale, except the expenses attending the proceedings. The real consideration was the debt; the costs were but an incident. Under the recording act it should be held that, in effect or equitably, the creditor purchasing upon a judicial sale, on his own judgment or in an insolvent proceeding to collect his debt, pays the amount of his bid to the officer, and in theory receives it back again. In other words, it should be held in equity that the land is converted into money, and the conveyance made in consideration of the money thus advanced.
None of the objections made at the trial, as to the validity of the attachment proceedings, are well taken. The statute which requires the officer, before whom the proceedings against an absent debtor are pending, to report to the supreme court within twenty days after the appointment of trustees, and to file the same, is merely directory. The report, when made, is rendered by statute conclusive evidence of all the facts which it contains. (2 R.S., 13, § 68.) Its recitals therefore proved all the proceedings, including the issuing of the original attachment, and all formal matters *Page 526 of regularity up to the appointment of trustees. There was no claim that the report of the judge was defective in any respect, at least no objection was made that its recitals were not full and complete.
The requirement of the statute, that the trustees shall cause their appointment to be recorded within one month, is simply directory. (2 R.S., 12, § 61.) An entire failure to record would not affect the validity of the sale made by them of the debtor's property.
The judgment of the supreme court must be affirmed.
All the judges, except MITCHELL, J., who did not hear the argument, and took no part in the decision, were in favor of affirmance.
Judgment accordingly.