dissenting. — As the case is stated in the opinion of the majority of the court it is unnecessary for me to do anything more than to show iñ what I dissent. I look upon the whole case as depending upon the definition of the word “ creditor.” "The statute, divested of all the verbiage not bearing upon the question before the court, being article 4988, Paschal’s Digest, provides: “All bargains, sales, and other conveyances whatever, of any lands, tenements, and hereditaments, whether they may be made for passing any estate of freehold or inheritance, or for a term of years, and deeds of settlement upon marriage, whether land, slaves, money, or other personal thing, shall be settled or covenanted to be left or paid at the death of the party or otherwise, and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and lodged with the clerk, to be recorded according to the directions of this act; but the same, as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof, or without valuable consideration, shall nevertheless be valid and binding.”
*353It is admitted that the conveyance of land by the intestate to plaintiff was not lodged with the clerk for record previous to the time the debts were contracted. It is also admitted that there are divers and sundry claims against the estate of the intestate, and that these claims have been allowed by the administrator of the estate and approved by the chief justice of the county. If, therefore, those whose claims have been thus allowed and approved are such creditors as are contemplated by the act, then the statute declares the conveyance void as to those creditors.
The term “ creditors” has a common and a legal meaning. In the common idea, a creditor is one to whom a sum of money or anything is due. But inasmuch as a creditor cannot have his debts collected till they have been adjudicated by a proper and legal court, it is probable that the statute contemplated such creditors only as had their debts merged in judgments of courts or became judgment creditors. There can be no doubt that a judgment creditor is one of the highest character. Without deciding that the creditor mentioned in the statute is the judgment creditor only, inasmuch as a judgment creditor is a creditor in every possible sense of the word, it is evident that the statute must include such in the term creditor.
But are persons whose claims have been allowed by the administrator and approved by the chief justice such judgment creditors ?
Our statutes provide two methods for a creditor to establish his claim judicially against an estate of a deceased party. The first, by the presentation of the claim to the administrator of an estate, accompanied with an affidavit in writing that the claim is just, and that all legal offsets, payments, and credits, known to affiant, have been allowed, and having or receiving the certificate of the administrator indorsed upon or annexed to the claim, stating the time of the presentation and the allowance thereof, *354together with a like certificate of the chief justice of the county' of his approval of the claim.
The second method is a judgment in the district court. (Paschal’s Dig., Arts. 1309, 1311.) But the statute expressly provides that the judgment thus obtained shall have the same force and effect as if the amount thereof had been allowed by the executor or administrator and approved by the chief justice. (Art. 1311.) It would seem, therefore, that the statute places a claim acknowledged by an administrator and approved by a chief justice upon a par with one established in any court of the state.
It may be said that a judgment in the district court creates a lien upon all the real estate of the debtor situated in the county.
The lien established for the payment of a claim against an estate is not confined to the real estate situated in the county in which the claim is established, but extends to all the property of the estate of the deceased wherever situated.
The legislature has declared what shall be the requisitions of a title, and has required that titles to real estate, to be valid in all respects, shall be recorded. By the ancient laws, both of England and Spain, possession, actual possession, was given to the purchaser of real as well as personal property by calling upon the citizens of the vicinage to witness the transaction; that the purchaser did enter upon the land and do and perform such things as an owner only was permitted to do and perform. This delivery and actual possession has been substituted by requiring the purchaser to place his title upon the records accessible to all, each and every person, and is imperative. Jt is designed that every one who has an interest in the property or pecuniary affairs of another should have notice thereof, and therefore provides that recording a deed is not necessary, so far as relates to all creditors and subsequent purchasers with notice.'
The controversy in this case is between the judgment *355creditors, or at least quasi judgment creditors, and one who did not record his deed agreeably to the requirements of the statute.
The charge of the judge had no reference to creditors in general, and could have none, because none such were before the court. The charge is strictly statutory; or, if there was any error, it was in favor of the party complaining; “if the jury find from the evidence that the deed under which the plaintiff claims the land in controversy was not recorded in the counties where the lands he until after the debts were contracted by the intestate which have been proved in this case, that in that case the deed of conveyance from Robert T. Barrett to Richard Barrett conveys no title as against such creditors, and there should be a verdict for the administrator of the intestate, to the end that he may pay such debts out of the land, unless such creditors had notice of the same.”
This charge left to the jury the facts in the case, and gave as law what the act required. I have thus far proceeded as if judgment creditors only were to be regarded as creditors, because the case before the court did not require an opinion as to others.
But article 4983, Paschal’s Digest, would seem to be more extensive, viz: “Mo deed, conveyance, lien, or other instrument of writing shall take effect, as regards the interests and rights of third parties, until the same shall have been duly proved and presented to the court as required by this act for recording land titles.”
The controversy is not between the vendee or supposed purchaser of the land and the vendor or his heirs or voluntary grantees, but between one who represents himself as a purchaser, in the State of Missouri, on the 12th October, 1859, and who resides in the city and State of New York, and who never exhibited the deed until the 5th day of October, 1867, at 9 o’clock a. m. During all this time the maker of the deed, "and ostensibly the owner of *356the lands, consisting of upwards of fifty-four thousand acres, was transacting his ordinary business, and incurred debts to the amount of fifteen or twenty thousand dollars .upon the faith of the ownership of this land.
It is difficult to conceive of a ease more appropriate than this, showing the wisdom and justice of the legislature in passing the act.
I deem it my duty also not to pass over these purported deeds in silence. The first is dated 17th August, 1859, and recites a consideration of $20,000, and conveys all the property, real and personal, owned by the grantor in the State of Texas, without any definite description of its locality or quantity.
The second deed is dated 12th October, 1859, recites as a consideration $5,000, and conveys all the grantor’s lands in the State of Texas, specifies the counties and town in which some of the lands lie, and gives the names of his grantor to two of the tracts, one of which contains from four to six thousand acres.
The two deeds, or purported deeds, are not essentially different, except in date and consideration. Upon the reading of these instruments the supposition would be that there were three tracts of land, but the petition sets forth at least twelve different tracts, besides numerous town lots. Ueither of the instruments has been legally recorded, and it is evident that there was no consideration for them; that the seller did not know what he was selling or the purchaser what he was buying, and that legally nothing was sold or bought; that the most that can be said of the duplicate instruments is that they are donatio mortis causa, or a will, and must be treated as such.
My opinion is that there is no error in the j udgment of the district court, but, as I am alone in this opinion, the judgment is reversed.