Jackson ex dem. Loop v. Harrington

Curia, per

Savage, Ch. Justice.

Were this question to be determined by the common law, undoubtedly the first deed would be operative, and the second void. But the legislature on the 8th oí January, 1794, (1 R. L. 209,) passed “ an act for registering deeds and conveyances relating to the military bounty lands reciting that many frauds had been committed respecting the titles to those lands, by forging and antedating conveyances ; and by conveying to different persons, and by various other contrivances, so that it had become very difficult to discover in whom the legal title to some of the lands was vested. For remedy whereof, and in order to detect these frauds, and to prevent the like frauds in future, it was enacted, that all deeds and conveyances theretofore made and executed, or pretended so to be, of such lands, should be deposited with the clerk of the city and county of Albany, on or before the 1 at day of May, 1794; and that all deeds and conveyances of military bounty lands, u which shall not be delivered to, and deposited with the said clerk, on or before the said 1st day of May aforesaid, shall be adjudged fraudulent and void against the subsequent purchaser or mortgagee for valuable consideration.” By an act of the 21th of March, 1794, (1 R. L. 211,) the time of depositing such deeds ivas extended to May 1st, 1795, These deeds were to be kept in bundles alphabetically ; and a register made of the names of the parties, for the PurPose °f inspection. They were, after a certain time, to be delivered to the clerk of the county in which the lands lay, there to remain for the benefit of all persons interested. It was also enacted that all conveyances, to be executed after the 8th of January, 1794, should be recorded ; and that the deed first recorded should be operative. These deeds were to be acknowledged or proved. Not so of those executed prior to the passing of the act. It is contended for the plaintiff, that every deed is to be tested by the statute ; and if not deposited as the statute directs, is fraudulent and void against the subsequent purchaser; and, of course, the deed of Carbine, dated in 1783, not being deposited, must be adjudged fraudulent and void as against the Loop deed executed in 1784.

Each of the deeds is valid as between the parties ; and as to all the world, except subsequent purchasers or mortgagees. It follows that the deed of 1783 is void as to the deed of 1784 ; and that would also be void as to a subsequent one, had there been such an one before the passing of the act of the 8th of January, 1794.

The argument on the other side is, that both being in pari delictu, the question is left as at common law, and the elder title must prevail.

Jackson v. Hubbard, (1 Caines’ Rep. 82,) was cited by the counsel for the plaintiff. In that case, the patentee of a military lot sold it in 1783. The deed was recorded in the secretary’s office ; but was not deposited in the clerk’s office according to the statute. On the lsf of October, 1788, the patentee executed a power of attorney, by virtue of which, the lot wTas conveyed by the attorney the 14⅛ of August, 1795, and the deed was duly recorded in Onondaga county. The court decided, that though the first deed was recorded, yet that did not satisfy the act; as the object was declared to he the prevention of frauds Dy facilitating the means of discovering forgeries. And the junior title prevailed. In that case, the power of attorney under which the junior deed was executed, was not deposited, though executed prior to passing the act. Possibly the court considered simply the execution of the deed, which was after the time limited for depositing deeds ; and gave it the same efficacy as if executed at its date by the patentee himself, laying out of view the date of the power of attorney, if this was so, the case is not an authority for preferring the last of two deeds executed before the act, and not deposited ; though if it was considered material that the power should be deposited, the authority of that case is in favor of the junior title in this.

But independent of authority, it seems impossible to sustain the elder deed here consistently with the statute ; and if no further facts appeared, the plaintiff would be entitled to recover.

On the trial, the defendant produced a deed from the patentee to E. Z. Carbine for the whole lot, purporting to be in consideration of ¡$3000, dated the 29th of September., 1823, and recorded the 9th of October, 1823; after this cause had been noticed once for trial, and the grantee had notice of the suit, and of the title under which the lessors claim.

According to the construction which I have given to the act, and according to the case of Jackson v. Hubbard, E. Z. Carbine must hold in preference to either of the deeds of 1783 and 1784, provided he can be considered, in the language of the act, a subsequent purchaser for valuable consideration. He certainly knew that he was purchasing tvhat he before claimed under the deed of 1783, and he knew also that he was purchasing a disputed title. The act of purchasing in 1823, the same lot which his grandfather purchased in 1783, forty years previous, was an admission that he did not choose to rely on the old deed. Clearly he was not a bona fide purchaser, within the full .meaning of the phrase ; for he had notice.

Is E. Z. Carbine, then, to be considered a purchaser for a valuable consideration, supposing this to be sufficient ? Had we heard nothing of this purchase but what appears on the face of the deed, we should be bound to receive it as prima facie evidence of a valuable consideration. The circumstances are, however, peculiar; and I think call for further proof that a valuable consideration was paid. The soldier had notoriously given conveyances valid as to himself in two successive instances ; one of these was W'ell known to E. Z. Carbine when he purchased; and of the other he had notice ; and, at least, must have entertained a strong suspicion. Is it natural, that dealing with the soldier under such circumstances, he should either exact, nor Carbine pay him a valuable consideration ? Is it not probable that the consideration was merely nominal, paid to and received by the soldier, not as the value or price of the land ; but colorably, and in fraud of the suit then pending ? Without saying whether the deed -was void as being for a thing in action, we think the circumstances of the base required proof by witnesses, or in some way independent of the deed, that a valuable consideration w as in fact paid.

A hew trial must therefore be granted.

New trial granted.