dissenting.
Cato was the drawer of the land. He made a deed for it to Johnson; afterwards, he made a second deed for it to Slappey, but giving Slappey notice of the first deed. Slap*643pey, afterwards, made a deed for the land, to Rutherford who, it is to be presumed, prohac vice, received the deed, without notice of the deed to Johnson. The deed to Johnson, was not recorded within twelve months from its date; the other two deeds were recorded within twelve months from their respective dates.
These were the facts. And the question is, which had the title, Johnson or Rutherford?
The decision of the Court below was, that Johnson had the title; and that decision was, I think, right.
If Rutherford had the title, he must have acquired it from Slappey. But, he could not have acquired it from Slappey. That is forbidden by a rule of the common law, and also, by a statute; and there is nothing to gainsay the rule, or the statute.
What rule ? The rule, that he who has no title himself, can convey none, to another. Slappey had no title himself; he purchased from Cato, a person who had no title, he having parted with the title to Johnson, and purchased with notice of that fact. Therefore Slappey had no title himself; and he having no title, the common law rule says, that he could convey none to Rutherford.
What statute ? The Registry Act of 1837. A part of the fourth section of that Act is as follows: “ In all cases where two or more deeds shall, hereafter, be executed by the same person, or persons, the one recorded within twelve months from the time of execution, (if the feoffee have no notice of a prior deed unrecorded at the time of the execution to him or her,) shall have preference.” These words say, by implication, that if this feoffee do have notice of a prior deed unrecorded, at the time of the execution of the deed to him or her, the prior deed, and not his, should have the preference. That the words say this, by implication, I suppose,-1 may assume.
Slappey, at the time of the execution of the deed to him, had notice of the prior unrecorded deed to Johnson. There*644fore, by the implication in the statute, that deed had the preference over his. Rut to let his deed convey the title to Rutherford, would be to give his deed a preference over that deed. It is true, then, that the statute forbids, that Rutherford should have acquired title from Slappey.
Is there anything to gainsay this double inhibition; an inhibition of both the common law and a statute.' It was argued, that there were two things to do so; the one, the spirit of this same statute; the other, a decision of this Court.
As to the former, I say first, that, if the letter of a statute is plain, we are not at liberty to leave the letter, for what, we may fancy to be the spirit, unless sticking to the letter would lead to some very bad consequences. This, I dare say, will be conceded. Here, the letter, though, to be implied, is plain. That the statute means to say, by implication, that the first deed shall have the preference over the second, if the taker of the second, have notice of the first, none will deny. And sticking to this, as the letter, would not lead to any very bad consequences. The effect of doing so, would be, to give to Johnson, the land; to Rutherford, damages for the breach of Slappey's warranty to him; for it is to be presumed, that he has a warranty from Slappey. That is to say, the effect would be, to put the loss on Slappey, the very person who ought to bear it, for it is he that is the guilty party; it is he that bought with notice of the prior deed. Sticking to the letter then, would, by putting the loss on the right party, lead to good, instead of, to evil, consequences; not sticking to it, but following the supposed spirit, and giving the land to Rutherfoid, would be, to transfer the loss from his warrantor, Slappey, a guilty party, to Johnson, an innocenfparty. This being so, it follows, from the principle assumed, that we ought not to depart from the letter of the Act, to follow the supposed spirit of it.
Secondly: It is by no means clear, that the case of Rutherford, is within even the spirit of the Act, What is the *645spirit of the Act? Is it, that he who bays by the record, shall be protected by the record? So broad as that, it can not be, I say. There are some cases in which, he who buys by the record, will yet, not be protected by the record; as ihe case in which, he takes a second deed, without notice of the first, and before the first has been recorded, but takes it be fore the time for recording, the first, has expired, and, subse quently, but within what remains of that time, the first is recorded; secondly, the case in which, the deed the record of which, he follows, is, a forgery; thirdly, the case in which, the deed, the record of which, he follows, is one that was never delivered. In none of these three cases, does the purchaser acquire any thing, although, in each, he follows the indication of the record, as to where the title is. And we may well argue, that cases analogous to any of these ought to keep company with these, and share their fate. The case in hand, is analogous to the last two of these. It is a case in which, one of the deeds on record was a void deed ; the deed from Cato to Slappey. That deed was void, because Cato had previously conveyed all his interest in the land, to Johnson, and Slappey, when he took that deed, knew that Cato had.
The two cases referred to, are also cases in which, a deed on record is, void. True, in them, the deed is void for a different reason ; in the one, for being a forgery; in the other, for never having been delivered. But what of that? It is the effect that is'material, and not the cause, and the effect is the same in each of the three cases, namely, that the deed in each is void.
Then there is analogy between the case in hand, and these two cases of the forgery and the non-delivery of the recorded deed. It is also .true, that it must be admitted that there is analogy between the case in hand, and á case which is certainly within the Act. Suppose Slappey had bought from Cato, without notice of Cato’s previous sale to Johnson, and had recorded his deed in twelve months from its date. In that case, Slappey would have got the title over Johnson, and *646yet it would be true, that he would have got it, from a man who had-no title himself — Cato having previously parted with all his title to Johnson. The Act would, by its express words, cover this case. The question, then, is, which would be the more conformable to the spirit of the Act, that the case in hand should be made to keep company with this case, or that it should be made to keep company with the other two cases. That .is a question to which, there are two sides. And if that is so, then, the case ought to be made to keep company with those two cases — seeing, that to make it do so, would be to follow both the letter of the Act, and the rule of the common law. What these are, tve have seen.
I say, then, that it is true, that this is a case in which we are not at liberty, to leave the letter of the Act, to follow what we may imagine to be the spirit of it, because, first it is plain what the letter is; and, secondly, is not plain, but that the spirit goes with the letter.
But is there not a decision adverse to this conclusion — the decision in Trueluck vs. Peoples, 3 Kelly.
I say no, and, for two reasons :
First, that decision was not made on this Act of 1837, but, on the previous registry Acts — and not one of those Acts contain a provision similar to the provision in this Act of 1837. The Act of 1767, contains a different — an opposite provision to that and one expressed in the strongest language. The provision in this Act of 1S37, is, that if the second purchas•er have notice of the previous purchase, that purchase shall have the preference over his, although the deed in that previous purchase, may not have beeh recorded within the prescribed time, and his deed may have been recorded within the prescribed time. The provision in the Act of 1767, prescribes a time within which it says that all deeds must be recorded ; it then uses these words : “ In failure of which, all such as are lawfully and regularly registered as aforesaid, shall be deemed, taken, and construed, to be prior, and shall take place, and be recoverable, before any and every deed, *647conveyance, or mortgage, which has not been lawfully registered as above.” Prince, 158. This is a provision, on the very letter of which, Trueluck and Peoples can well stand. In that case, the first deed was not recorded in the prescribed time — the second was, and when that is so, the statute says that the second shall have the preference, and it does not say that this preference shall depend on whether the second purchaser has, or has not notice of the first purchase. Altogether different is the letter of the Act of 1837.
Again, the decision in Trueluck vs. Peoples, is put on the «equity principle, that a purchaser of the legal title, without notice of the equitable title from a purchaser with notice of that title, gets the whole title,both legal and equitable. This principle, I do not deny; but, I may remark, that if it is now an established one, its establishment has been, not without dissent and opposition. But, in my opinion, the case was not one in which the principle could apply. The cases in which that principle applies, are cases in which, the purchaser acquires the legal title. The rule is founded on another equity rule; namely, the rule that where the equities are equal, the legal title shall prevail. The equity of a purchaser without notice, must be equal to the equity of any other claimant whatever, for he parts with his money, and does so, without fault in himself. He has the legal title; and, thus, he stands one point ahead of every other claimant whatever. Consequently, he must be able to prevail over all competitors. The case in which, this principle applies, happens when A. holding property in trust for B. sells it to C., with notice of the trust, and O. sells it to D. without notice of the trust. Here C. acquired the legal title, although, he purchased with notice of the trust; consequently he can, and does transmit that title to D., who thereby becomes the holder of the legal title, without notice of the trust. But, in the Trueluck case, the purchaser without notice, never acquired the legal title. Purchasing from one who purchased with notice of the trust, he purchased from one who had *648no title of any sort to convey; and therefore, he could not have acquired the legal title. Of course, this is said on the supposition that the registry Acts are to be laid out of the question, and that the case is to be considered as one governed by the common law, and the principles of equity. That is the way in which, it seems to have been considered by the Court deciding it. The Truduck case, then, was, I say, put on a principle that does not apply to such a case, as if was. And the point, whether that principle did or did not, apply to the case, was not, as far as appears, before the Court It seems to have been assumed, on all hands, as a matter of course, that the principle did apply to the case. The attention of the Court not having been drawn to the point, the decision would be worth little as a precedent on the point, even if it were true, that the decision were not on a different statute from that, involved in the present case.
For these reasons, I dissent from the judgment of the Court.