The principal questions-in this case arise upon the decision of the justice, upon the trial, in granting the motion for a nonsuit. This motion was made on several grounds, which it is important to examine and consider.
It is said that the plaintiff was not a bona fide purchaser of the premises which he sought to recover, and hence he -' did not bring himself within the provisions of the recording act, (1 R. S. 756, § 1,) so as to give the conveyances under which he claimed title a priority over the alleged deed under which the defendant claimed, and which was lost and had not been recorded.
The general principle is well established, that to constitute a' person a bona fide purchaser, within the meaning of the recording acts, the party receiving the subsequent conveyance must not only have received the same without notice of the prior unrecorded deed, but he must have received the same Upon some neio consideration, advanced at the time, or must have relinquished some security for a pre-existing debt due him. (Pickett v. Barron, 29 Barb. 505. Harris v. Norton, 16 id. 267. Merritt v. Northern Railroad Co., 12 id. 605. Wright v. Douglass, 10 id. 97.) This rule, however, does not apply to any but the original purchaser from the person from whom both parties claim title. And a purchaser from one who is protected by the recording act as against a prior unrecorded conveyance of the same land.is himself entitled to such protection, notwithstanding he purchased with notice of the prior conveyance, or zoiihout parting zoith a valuable consideration. (Wood v. Chapin, 13 N. Y, Rep. 509.)
The original conveyance to Eichtmyer, which was recorded, expressed a consideration, and there was nothing in the evidence to impeach it. If a consideration is expressed, no proof of its actual payment need be given, and it is suffi*215Cient that the amount he merely nominal. (1 Kern. 217, and authorities cited.) The objection, therefore, would not be available against the original purchaser, and can not apply to the plaintiff, who is his grantee.
It is insisted that Richtmyer had notice of the prior deed, and that the plaintiff had sufficient knowledge or notice, to put him on inquiry. Even if Richtmyer was affected with notice, yet if he conveyed to the plaintiff without notice, the plaintiff is as much protected as if no notice to either had been given. (Wood v. Chapin, 13 N. R. Rep. 518. Jackson v. Given, 8 John. 137. Varick v. Briggs, 6 Paige, 323, 329. Jackson v. Van Valkenburgh, 8 Cowen, 260. Corning v Murray, 3 Barb. 652.)
In reference to the plaintiff, he had no actual notice. At the time of the conveyance to him, the premises were not in the possession of the defendant, or any person claiming under him. The person who it is claimed was in possession under the defendant’s title had moved out some few years previous to the trial, and long before the deed to the plaintiff was given. Besides, the actual possession of premises,- which operates as constructive notice, must be visible and open, and not a mere constructive possession. (Troup v. Hurlbut, 10 Barb. 354. Tuttle v. Jackson, 6 Wend. 226.)
There is nothing in the conveyance to Richtmyer or to the plaintiff which was calculated to put the party upon inquiry, as to any previous unrecorded conveyance. The premises are adverted to, in the deed merely, as “ the same on which mining operations have been performed heretofore,’-’ which is not a notice that any other party was the owner.
It is more questionable whether the deed from Leonard L. Mower and wife to William H. Mower was not sufficient to put the party upon inquiry. There is no. evidence to show that either Richtmyer or the plaintiff had any knowledge of this conveyance. The' plaintiff swears that he had no knowledge or notice that the defendant, or any other person, made or had any claim to the premises until after he pur*216chased and took a deed for them. None of the cases cited hold that a party is hound to examine the records for the purpose of ascertaining whether there is a conveyance of other, premises, referring to those which the recorded deed embraces. The nearest approach to any such doctrine is the case of Lupton v. Cornell, (4 John. Ch. 261,) where it was held that the record of a mortgage from the grantee to the grantor was sufficient evidence that the grantor had not any title to the lot; and that the subsequent release and quitclaim of the grantor was fraudulent. There were strong circumstances about that case tending to show fraud, and that the deed was procured fraudulently, with the intent to defraud the legal owner. The consideration expressed, was $10 for a lot worth $6000. The chancellor, in his opinion, said he was entirely satisfied that all the defendants were chargeable with actual fraud. (See also Tuttle v. Jackson, 6 Wend. 226; Jumel v. Jumel, 7 Paige, 594, 595; Williamson v. Brown, 15 N. Y. Rep. 354.) The question is by no means free from difficulty ; but with the positive evidence of the plaintiff that he had no knowledge or notice, I incline to the opinion that the presumption arising from the fact of this conveyance being, on record is not conclusive.
Perhaps it was evidence to submit to the jury in- the case as to the question of notice to the plaintiff and to Bichtmyer, of the unrecorded conveyance. Beyond this, I am not prepared to go, as such a principle would compel a party to make a thorough search of the records, even in cases where there was no occasion for suspicion, which I think is not required.
It is further urged that the deed to Bichtmyer from William M. Mower and others, and from Bichtmyer to the plaintiff, are each void, because the lands described in them were in the actual possession of a person claiming under a title adverse to that of the grantor. (1 R. S. 739, § 147.)
The evidence shows that at the time when the deed was executed to Bichtmyer, a person was in .possession as a ten*217ant under the defendant. He had been there over eleven years, occupying a log house on the premises, and 'paying rent for them. There is no dispute as to this testimony, and for this reason, the deed to Bichtmyer was void under the statute, and conveyed no title to him.
[Albany General Term, March 7, 1864.The deed to Bichtmyer being void, he had no title, and could convey none to the plaintiff. As it is apparent that the deed to the plaintiff was from one who had no right to convey, he took no title by it. ’ The plaintiff having no title, the justice properly granted the motion for a nonsuit.
The evidence introduced to show an agreement under which the defendant was in possession, was properly received. It was not, strictly speaking, testimony to show an equitable title as between the legal and equitable owner. (See Dewey v. Hoag, 15 Barb. 365.) The evidence was proper to show title out of the defendant, and as preliminary proof before proving an adverse possession. It is not, however, of any consequence, if I am correct in the views I have expressed in regard to the point last discussed. And in this aspect of the case, it is not necessary tq examine some o'ther questions which were presented on the argument.
A new trial must be denied, and judgment ordered for the defendant, with costs.
Ingalls, J. concurred.
Peckham, J. concurred in the result.
Hew trial denied.
Pmkham, Ingalls and Mitten, Justices.]