The first question for consideration in this cause is what equitable interest C. Woodruff had in the lot, No. 213, and what were his legal rights in the same, after he obtained the patent from the state, and until his conveyance to the defendant, without consideration, on the oth of September, 1834. Previous to the contract with Davis, for the southwest quarter of the lot, and the conveyance to Miss Clark'of the north half thereof, Whaley was the equitable owner of the whole lot, subject to the payment of the $30, due to the state, for the unpaid purchase money. By the conveyance of the north half of the lot to Miss Clark with warranty, in 1829, the unpaid purchase money due to the state became primarily chargeable upon the south half of the lot; and the contract with Davis entitled him to the southwest quarter, subject to the payment of the purchase money due upon that contract. And as between Davis and Whaley, as well as between the latter and Miss Clark, the $30, then due to the state, was chargeable on such purchase *562money. The covenant from the Woodruffs to Whaley is in writing and explains itself. Parol evidence, therefore, cannot be permitted to alter its construction or legal effect. And upon the true and obvious construction of that covenant, or agreement, it is perfectly immaterial whether the Woodruffs were or were not apprized of the conveyance of Whaley, to Miss Clark, at the time of the assignment of the state certificate to them. For they took no beneficial interest whatever in the north half of the lot, nor in the southeast quarter thereof, under that assignment. The equitable rights of the respondent, both as to them, and as to the appellant as the grantee of C. Woodruff, without consideration,would therefore have been the same, even if the deed to Miss Clark had been dated the day after the execution of the covenant to Whaley; the time when it was actually recorded, in the clerk’s office, as a conveyance of an interest in real estate.
The assignment of the state certificate, and of Davis’ contract to purchase and pay for the south west quarter of the lot, and the covenant of the Woodruffs to quit-claim the other three quarters of the lot to Whaley, were executed at the same time; and were therefore parts of one and the same contract between those parties. The legal effect of that contract was that, upon the obtaining of the patent from the state, the Woodruffs were bound to convey three fourths of the lot to Whaley by a quitclaim deed, absolutely and unconditionally. And as to the southwest quarter they were to convey it to Davis upon his complying with the terms of his contract; and were to receive and retain the purchase money due upon that contract, to reimburse them for the $30 which they were to pay to the state. But if he did not comply with his contract, they would be entitled to that quarter of the lot, for their own use and benefit,, as an equivalent for the moneys paid by them to the state, to obtain the patent. Had the Woodruffs, therefore, obtained the patent previous to the assignment of Whaley’s interest in their covenant, and afterwards" quitclaimed the residue of the lot to Whaley, according to the terms of that covenant, the previous conveyance of the north half of the lot to Miss Clark with warranty, would have vested the legal title to that half of the lot in her, by estoppel; without *563the necessity of the interposition of this court. The only right, title, or claim therefore, which Whaley had in the lot, under the covenant of the Woodruffs, at the time of the date of the assignment of all his right and title to the respondent, was the right to an absolute conveyance, for his own benefit, of the southeast quarter of the lot, as soon as a patent for the whole lot should be obtained from the state. .This then, was all that was sold or professed to be sold, to the appellant, by the terms of the assignment to him, in June, 1830, which was endorsed upon the covenant. The appellant therefore took the assignment of Whaley’s right to a quitclaim deed under that covenant, subject to the previous right of Miss Clark to the north half of the lot, under the warranty deed from Whaley to her.
Considering the interest of Whaley as a mere equity, at the. time of the execution of the deed to Miss Clark, in April, 1829, and at the time of the assignment to the appellant, in June, 1830, the prior equity must prevail. For as between equal equities, he who is first in time is strongest in right. And if the recording acts apply to this case, the recording of the deed to Miss Clark, in August, 1829, was' constructive notice to the subsequent purchaser of the interest of Whaley, in the same lot under the covenant of the Woodruffs, that she was entitled, by virtue of the covenant of warranty, to any interest which the grantor had in the north half of the lot, either at law or in equity, at the date of the deed to her, or which he might thereafter have acquired under that covenant of the Woodruffs. For if the appellant had examined the records, for the purpose of ascertaining whether Whaley was the equitable owner of the three fourths of the lot which the Woodruffs covenanted to convey to him, by their agreement of the 14th of August, 1829, he would have found the warranty deed of Whaley, Which was recorded the next day after that agreement. And that deed showed that Whaley had not acquired, and could not acquire any beneficial interest in the north half of the lot from any person, other than Miss Clark, which would not immediately, enure to her benefit by virtue of his covenant of warranty. At the time of the execution of the deed of the fifth of September, 1834, therefore, C. *564Woodruff held.the legal title to the north half of the lot in trust for the use and benefit of the wife of Shuart; as the actual and absolute owner thereof under the deed from Whaley to her, and under the subsequent covenant to give a quitclaim deed of the three fourths of the lot to Whaley. He also held the legal title of the southwest quarter of the lot for his own use and benefit, subject to the contract of Davis. And the remaining quarter of the lot he held in trust for the appellant.
It appears, by the testimony of Shuart, that after the assignment of the state certificate, and before C. Woodruff obtained the patent from the state, he was distinctly notified by the •witness that Mrs. Shuart had a deed from Whaley for the .north half of the- lot, which was prior in point pf time, to the assignment of the state certificate by the latter. The subsequent conveyance of that half of the lot to the appellant was therefore inequitable and unconscfentious, onkhe part of Wood-ruff and in fraud of her rights, And that conveyance being entirely without consideration, the appellant is not entitled to hold the land as against the complainant, who has derived title to the same under the conveyance from her and her husband; whether the appellant was or was not apprized of the existence of the deed from her. Nor can the appellant be permitted to set up the insufficiency of the consideration for which she and her husband sold and conveyed their interests in the premises, and when no complaint' is made by them on that subject.
In this view of the case, it is unnecessary to inquire whether the appellant had actual notice of the deed to Miss Clark for the north half of the lot; or whether she was in possession at the time of the assignment of Whaley’s interest in the covenant of the Woodruffs, in June, 1830, so as to amount to constructive notice of her interest in the premises, independent of the recording of her deed. The complainant therefore was entitled to a decree for the conveyance of the north half of the lot to him. And as the appellant had refused to execute a conveyance of the title, which he had acquired under the deed of September, 1834, after he had notice of the rights of Mrs. Shuart, and of her *565grantee, under the deed of April, 1829,1 think he was properly charged with the costs of this suit, which that refusal had rendered necessary.
The decree appealed from must be affirmed with costs.