I concur with the president of the court in most of his reasoning, in his conclusions and in the decree, but I do not concur in his criticism upon the case of Withers v. Carter. That was a case arising before the Code of 1849, and I do not deem it necessary to a proper decision of this ■case to pass upon the correctness of that decision.
NOTE.
The decision in the principal case re-affirms the principles settled toy McClure v. Thistle’s Executors, 2 Gratt. 182, but does not nec*214essarilj- trench upon the doctrine of Withers v. Carter, 4 Gratt. 407; but inasmuch as the latter case has been much criticised, we have thought a short review of those cases would not be inappropriate in this connection.
It is impossible to tell from the report of McClure v. Thistle’s Executors, what were the precise facts of that case. But they appear in the subsequent case of Withers v. Carter, in the opinion of Judge Baldwin, which was concurred in by Cabell, P., and Allen, J., all three of which judges sat in the case of McClure v. Thistle’s Executors; and the accuracy of Judge Baldwin’s statement is rather supported (if it needs support) by the reporter’s syllabus and statement in McClure v. Thistle’s Executors. In that case (as far as the record showed) there was no executory contract or possession prior to the deed. The vendee relied solely upon his deed, his possession under it, and his payment of the purchase money. There were no such circumstances, apart from the deed, as would confer an equitable title. Possession was taken and held, and title set up and claimed, under, the deed alone. Of course there was, as in the nature of things there must always be, a verbal negotiation and understanding more or less prior in point of time to’ the execution of the deed; but that oral agreement was not disconnected from the deed, but formed a part of the same transaction, and, in legal sense, was contemporaneous therewith. No one supposes that under such circumstances the oral agreement could be made the foundation of an equitable title, by reason of the subsequent admission of the vendee into possession; for that possession was not referrible to the oral argeement (which circumstance would be essential to give rise to the equitable title by the doctrines of the court of equity) but was under and in pursuance of the deed alone. In McClure v. Thistle’s Executors, the vendee never had less than the full legal title; he never had an equitable title. The oral agreement alone could not have vested in him such equitable title, or any title at all — and the subsequent possession could not have the effect to give rise to it; for that possession was taken not under the oral agreement, but under the deed-Never having- had anj-thing but the legal title, and that being void for failure to record the deed, there was no equitable title to fall back upon; all the title the vendee ever had failed, and the judgment’s creditors were held to be entitled. In that case there was no room for the doctrine of merger; it was not decided upon the ground that the equitable was merged in the legal title, but on the ground that there was not, and never had been, an equitable title in the vendee. In the subsequent case of Withers v. Carter, there was an executory contract whereby the vendee acquired the equitable title. This contract was not required to be recorded as the *215law then stood. Bong afterwards a deed was made, which was lost and never recorded. In Withers v. Carter it was probably not seriously disputed (or if it was, it was put beyond all dispute by Judge Baldwin) that the executory contract needed no recordation, and that it conferred a good equitable title which, until the vendee received the deed conveying the legal title, was exempt from intervening liens on the land against the vendor; but the main contention was, that after the deed was made, the prior equitable title merged in the legal title, and the vendee would not afterwards be protected against liens subsequently acquired against the vendor, unless the deed was duly recorded. But the court of three judges was unanimously of opinion that the deed, although good as between the parties, and as between them passing the legal title, was as to creditors, &c., under the statute, until recorded, a mere nullity, a blank piece of paper, and so far void that quoad them it would not vest the legal title in the vendee so as to merge his equitable title; but that by the express terms of the statute the subject would be left “in precisely the same situation as if no deed had ever been made or attempted.” In controversies with creditors, the vendee was in the same position as if the deed had never been made. Quoad them, the vendee never had more than the equitable title; the deed convejhng the legal title was as to them so absolutety void before recordation, that the grantee was never clothed with the legal title; and never having acquired as to them the legal title, the equitable title could not merge in it. This reasoning gives a broader effect to the voidness denounced b3r the statute against a failure to record, than we would have supposed at the first blush it would sustain. The statute was aimed at secret conveyances, and was intended to render them inoperative against creditors and purchasers for want of notice unless recorded — but they are good between the parties and effectual to convey the legal title, and to merge any prior equitable title. The statute was not intended to prevent this change being effected in the nature of the title, but to prevent that title, unless the deed evidencing it was recorded, from being set up against creditors and purchasers for value and without notice. But while this was the main intent, the language used in the statute is so broad and absolute, that, though the reasoning of Withers v. Carter on this point is still not entirety satisfactor3' to our mind, we do not see how the. conclusion reached by the court in that case can be successfully controverted.
The only cases which can now fall under the influence of Withers v. Carter, are those where there has been a verbal contract attended with circumstances of part performance. We will premise, that it is now well settled that, except perhaps in a few excep*216tional cases, nothing short of a delivery of possession will confer the equitable title, and entitle the vendee to specific execution. Lester v. Foxcroft, Lead. Cas. in Eq., vol. 1, pt. 2 (4 Amer. Ed.). In such cases the vendee acquires an equitable title (as much now as before the recording acts,) which the court of equity' will recognize, protect and enforce. The necessity of recordation arises from the statute. The recording act does not embrace such oral contracts nor require their recordation; whereof they are insusceptible from their very nature. To uphold the validity of such titles, prior to the conveyance of the legal title, is certainly not contrary to the letter of the recording acts; nor, as it seems to us, to their spirit. In order to acquire the equitable title under such oral contract, it is necessary that the vendee should be put in possession. This circumstance gives notice to the world, or at least suffices to put all persons on inquiry. It is an open and notorious fact, not secret like a deed or a written contract, which may be pocketed, and the world never know of the change of title. This necessity of putting the vendee in possession will also prevent the danger of collusive and pretended sales, which is deprecated by Judge Wingfield. The recording act makes a distinction which is founded upon this very principle in the case of chattels; for a mortgage thereof must be recorded; but a bill of sale (where generally there must be a transfer of possession) need not be. Of course there is an obvious difference between chattels and lands— possession being, in a much greater degree, the badge of ownership with the former; but still the illustration has some application. But, however that may be, where there is no deed or contract which can be recorded, such a case cannot be embraced, in any sense, within the recording act; and if the circumstances are such as to confer an equitable title, it results as a necessary consequence that that title will be protected in equity, inasmuch as it cannot be affected by a failure to comply with a statute with whose requisitions compliance is not only not required, but is impossible. And, to the question, whether it could have been intended that such a verbal contract, accompanied by circumstances of part performance, should stand upon a better footing than the deed conveying the full legal title, or the written contract, we answer, no, if the deed, or contract, is recorded pursuant to the statute, full opportunity for which is given; but yes, if they are not so recorded; such intention could not only have been entertained, but, in our judgment, has in effect been declared.
So far we have discussed the parol agreement, partly performed, in the absence of any subsequent deed; such deed when made would bring the case directly under the influence of Withers v. Carter. The effect of that decision has been already considered.
*217The decision in that case was certainly productive of results inherently just. But even if such was not its operation, it seems to us, that it would be inconsistent with the salutary doctrine of stare decisis, to disturb such a decision, which has probably been relied on and followed as establishing a rule of property. We by no means favor a servile adherence to the doctrine of stare decisis, as commonly understood. The supreme court of California has well said: 1 ‘There are cases, undoubtedly, which the courts would be fully justified in overruling, and which often are overruled; cases hastily and clearly erroneously decided, under which no valuable rights could grow up, and the overruling of which could produce no inconvenience; recent cases, under which valuable rights have not yet been acquired, which stand alone or nearly alone, and which are manifestly erroneous, and are themselves departures from the law as before well settled; and others not necessary to mention; many, if not most, of these may be said, in a certain sense, to be overruled upon the very doctrine of stare decisis.” Hihn v. Courtis, 31 Cal. 400. But “when a rule, by which the title to real property is to be determined, has become established by deliberate judicial decision, its inherent correctness or incorrectness, its justice or injustice, in the abstract, are of far less importance than that it should, itself, be constant and invariable. The court would not disturb such a rule of property, even though satisfied they could substitute another, preferable in theory, or better calculated by its operation to promote the purposes of justice.” Smith v. McDonald, 42 Cal. 488—see Fearne Cont. Rem. (1794) p. 264, § 134; Broom’s Leg. Max. 147; Townsend’s Ram’s Degal Judgment 196-255,413. The application of these principles is specially forcible, where the question involved in the decision is the construction of a statute, as in such cases it is in the power of the Degislature, if their intention has been misconstrued, to remedy the evil by altering the law. — -Ed.