Opinion
06-15-1827
Heron v. Bank of the United States. [*]
Wickham, for the appellant. Stanard, for the appellees.
This was an appeal from the Williamsburg Chancery Court, where the bank of the United States filed a bill against Heron, Plume and others, to set aside a deed of trust, made by Heron to Plume & Co. which, the plaintiffs alleged, obstructed their execution. This deed was impeached, first, on the ground of fraud, and secondly, because it was not proved and recorded within eight months from its delivery; and then, it was recorded in the Clerk's office, which was not authorized by law. The grounds of this objection will fully appear by the following opinions.
The Chancellor decreed, that the deed should be set aside, as void against the plaintiffs, and the defendants appealed.
Decree affirmed.
Wickham, for the appellant.
Stanard, for the appellees.
JUDGE CARR. JUDGE COALTER. JUDGE CABELL concurred with JUDGE CARR, and the decree was affirmed. [*]
OPINION
JUDGE CARR. JUDGE COALTER.
In the Court below, the appellees, being judgment creditors of Haron, filed a bill against him and Plume & Co., charging that a deed of trust, made by Heron to Plume & Co. and which obstructed the execution of the plaintiffs, was, 1st, fraudulent; 2d, if not fraudulent, that it was void as to the plaintiffs, because not legally recorded. The Court of Chancery decided against the deed on both grounds. I will consider the last point, first.
By the early laws on the subject, deeds are directed to be recorded, in the General or County Courts (not restricting it to the county in which the land lay,) within six months. In 1705, they were required to be recorded in the General Court, or Court of the county where the lands lay, within eight months. In 1785, they are directed to be recorded before the General Court, or Court of the county, city or corporation, where the lands lay, within eight months.
When District Courts were created, the power was given to those Courts, for lands within the district; and when the Superior Court system succeeded, the power was given to those Courts also, for lands within the county. But in all these cases, the power was vested in the Court, and not in any officer; and the probate and order for recording, were always made in open Court. Nor was there any statutory power of recording, given to Courts, after the lapse of eight months from the delivery of the deed. Courts of record might, and did, exercise the common law power, of spreading conveyances and other instruments upon their records, for safekeeping; and the inspeximus would be evidence of the execution of the deed, against the grantor and those claiming under him, if the deed were recorded on his acknowledgment; but, such a deed could claim none of the privileges of a deed recorded under the statute.
In the session of 1813, a law passed, by the first section of which it is enacted, " that the clerks of the several County and Corporation Courts, & c. are authorized and required to admit to record, at any time within the period, and in the form, now required by law, any conveyance, either on the acknowledgment of the party, or the proof on oath of such acknowledgment, by the legal number of witnesses thereto, made in the office of the respective clerks; and that any conveyance so recorded, shall have the same legal validity, in all respects, as if it were proved in open Court." It is under this law, that the question arises.
The deed from Heron to Plume & Co., bears date on the 1st of September, 1817, and was admitted to record in the clerk's office, on the 15th of February, 1819; nearly 18 months after its date. Was this deed legally recorded? Had the clerk power, after the lapse of eight months from its date, to take probate of the deed, in his office? This is purely a question of construction; and before entering upon it, I will avail myself of the remarks of C. J. Willes, in Coleman v. Cook, 1 Willes' Rep. 397, which seem to me very sound. " When the words of an act are doubtful and uncertain, it is proper to enquire what was the intent of the Legislature; but, it is very dangerous for Judges to launch out too far, in searching into the intent of the Legislature, when they have expressed themselves in plain and clear words."
The law I have quoted, vests a new power in clerks; a power to admit deeds to record in their offices. But, this power is limited both as to time and manner. They may record deeds in their offices, " at any time, within the period, and in the form, now required by law." These are important limitations. It is impossible to suppose, that they crept into the law by accident; and if the Legislature intended to use them, it could be but in one sense. Strike out all these words of restriction, and the clerks are unlimited. Retain them, and they can record deeds in their office, only within eight months from the delivery; and in the form now required by law. The form required, is, the acknowledgment of the party, or proof by three witnesses. If the clerk can dispense with one of these limitations, why not with the other? If he is not confined to the time prescribed, why is he to the form? If he may record deeds after the expiration of eight months, why not without proof by witnesses, or acknowledgment by the party. The time and the form are equally clear and definite. It is just as palpable, that by the words of the act, the deed must be presented within eight months, as that it must be proved or acknowledged; and the power, which can dispense with one of these provisions, may, without difficulty, disregard the other. That the restriction as to time, was not introduced without design, the second section of the law is strong to show. By that, a deed may be recorded on the certificate of two magistrates, endorsed that it has been duly acknowledged before them by the party, and that he desires it may be recorded; " provided, that such a deed, with such certificate, be delivered to the clerk, within the period now allowed by law." Here is a proviso, the express and sole purpose of which is, to limit the power of recording those deeds within the clause, to eight months; shewing the settled purpose of the Legislature to tie up these new powers given to clerks and magistrates; and this knot can only be untied, eo ligamine quo ligatur, however judicial usurpation may attempt to cut it.
The 7th section of this law enacts, " that any conveyance, which shall hereafter be recorded, after the expiration of the time now allowed by law for recording the same, shall take effect, and be valid in law, as to creditors and subsequent purchasers, from the time of such recording, and from that time only." It was strongly contended in the argument, that this section gave to clerks, by implication, the power of recording deeds in their office, after the lapse of eight months. The special and sole object of the first section was, to vest this new power in the clerks. In doing this, the legislative mind was, of necessity, directly turned to the nature and extent of the power to be given. Accordingly, the first section describes that power exactly, and limits it to eight months. Would it not seem very extraordinary, that a subsequent section of the same law should take away this limit: that of the same statute, one section should enact, that the clerks shall not record deeds after eight months; and another, that the clerks shall record deeds after eight months? If the legislative intent had changed in the course of discussion, before passing the act, would they not have evinced that change by striking out the words of limitation in the first section, rather than by letting them stand, and inserting a subsequent section to repeal them; thus exhibiting the unseemly spectacle of two sections in the same act, in direct conflict with each other? Ought not the words to be most clear, and the contradiction most positive and direct, which would justify us in attributing such a course to the Legislature? And would it not violate every rule of sound construction, to repeal the first section, expressly limiting the power of the clerks to eight months, by a subsequent section, which does not mention them at all, and can only apply to them by implication; an implication, not necessary to the operation of the 7th section, nor, in my opinion, even plausible in itself? Not necessary, because, though we should decide that the clerks could not record deeds after eight months, the power of the Courts to record them would still remain, and would be fully sufficient to meet the mischief, for which the 7th section meant to provide: Not plausible, because, in the construction of a statute, we must take into view all its different parts; and when, in one section it is said, that clerks shall not record deeds after eight months, and in another, that deeds, recorded after eight months, shall be valid, we must suppose that the Legislature meant, in the last case, those deeds, which Courts were always in the habit of admitting to record, under their common law power.
In the revision of 1819, there is a clear legislative exposition of the act of 1813. The first section is re-enacted verbatim, except with the omission of the words, " within the period," & c.; making the section read thus; " The clerks are authorized, at any time, to admit to record deeds," & c.; thus shewing the idea of the Legislature, that a law was necessary to expunge those words, with this Court is asked to expunge by construction; and which must be expunged, in some way, before that power can be considered unlimited as to time, which they expressly limit to eight months.
The 5th section of the law of 1813 directs, that after the 1st of November, 1814, deeds shall be recorded in the County and Corporation Courts only. This arrested the progress of many deeds, which had been lodged and partly proved, in the General Court, District Courts, and Superior Courts. To remedy this evil, the act of 1814, (Sessions Acts, p. 75,) enacts, that it shall be lawful for the General Court and the several Superior Courts of law, to receive further proof of such deeds, and to admit the same to record. It was insisted by the counsel for the appellants, that this law strengthened the construction he contended for; and he asked, might not these deeds, though over eight months old, be proved and recorded under the 7th section of the law of 1813? It would seem that the Legislature thought not; else, why pass another law, providing for their probate and admission to record? And it is very clear to me, that under this last law, the clerks of the General and Superior Courts cannot receive proof of these deeds in their offices, because the law expressly confines the probate to those Courts themselves. Why the law, either in this case, or that of deeds over eight months old, should confine the probate to the Courts, in exclusion of the clerks, it might be difficult to say; nor can the reason be sought after, where the law is clear. In such cases, it is enough for the Judge to say ita lex. We decided, very lately, a case under this same law of 1813, which exemplifies this doctrine. The 5th section directs, that deeds respecting the title of personal property, shall be recorded in the Court of that county, in which the property shall remain. No doubt, the word corporation was omitted by accident; and the revision of 1819 supplied it. Yet, as it was not in the law, we decided without hesitation, that a deed for slaves, recorded in the Corporation Court of Richmond, where all the parties lived, and where a recording was best for every purpose of notice, was void as to creditors; and this upon the ground, that the law being clear, we had nothing to do with the reason or propriety of it.
Upon this view of the case, I am of opinion, that the deed, as to the plaintiffs who are judgment creditors, is to be taken as an unrecorded deed, and void. Being against the appellants on this ground, it is unnecessary to consider the question of fraud.
I think the decree of the Court below, should be affirmed.
JUDGE COALTER.
The act of 1813, ch. 10, provides by the first section, that the clerks of the several county and corporation Courts, and their deputies, be authorized and required to admit to record, at any time within the period, and in the form now required by law, any conveyance, either on the acknowledgment of the party, or the proof on oath by the legal number of witnesses thereto, & c.; and that any conveyance, so recorded, shall have the same legal validity, & c. as if proved in open Court.
The 3d section requires the clerks on the first day of every term, to return to the Court a correct list of all conveyances by them admitted to record, in manner aforesaid, since the term last preceding; specifying therein, the proof or acknowledgment of such conveyances, & c. and a description of the conveyance, by the names of the parties thereto, & c.; and when the list has been inspected by the Court, it is to be inserted in the minutes, & c.
The 7th section provides, that any conveyance which shall hereafter be recorded, after the expiration of the time now allowed by law for recording the same, shall take effect and be valid in law, as to creditors and subsequent purchasers, from the time of such recording, and from that time only.
In this case, the deed, under which the appellant claims, was executed on the 1st of September, 1817, and was proved and recorded in the clerk's office, on the oath of three witnesses, on the 15th of February, 1819, (a few days before the passage of the act of 1819, on this subject; ) and the question is, whether it is a deed duly recorded?
This act is amendatory of the act of 1792, regulating conveyances; and the first two sections of those acts, read together, would be this; that no estate of inheritance, & c. shall be conveyed, unless by deed, & c.; nor shall such conveyance be good against a purchaser, & c. unless it be acknowledged by the party, or proved by three witnesses, before the Court, or in the clerk's office, before the clerk or his deputy, of that county, city, or corporation, where the land lies, and within eight months after the time of sealing or delivery.
Had the act of 1813, contained no other provision, than is found in the 1st and 3d sections, it would have been so read and construed; and then this deed, whether proved after the eight months, either before the Court or in the clerk's office, would not have been good against the creditors. The clerk was simply invested with the same power, that the Court before had, of taking the acknowledgment on proof, and admitting the deed to record. The power in neither could be called judicial, in the strict sense; for, there was no day given to any party interested in contesting the regularity of the proceedings; nor would they be precluded from doing so thereafter. The object was, to relieve the Court during term time, of the pressure at the clerk's table in taking proof and acknowledgment of deeds, which was always done by the clerk as a matter of course, without any application to the Court. It was, in short, to enable him to do in the office, what he was in the constant habit of doing at the clerk's table, without the interference or even knowledge of the Court, until it was announced in reading the minutes. The publicity given to the business by its being done in Court, and read in the minutes, was supplied by the list directed in the 3d section. So far as this goes, then, the plain object and effect of the law was to give the clerk in the office, the same power as the clerk in the Court.
Suppose the law had stopped here, and that at a succeeding session, the 7th section had been enacted, as a distinct law. What would have been its construction? It seems to me, we would have said this: The Legislature, in the laws previous to that of 1785, (from which the act of 1792 was taken,) had prohibited the Courts from admitting to record deeds not acknowledged or proved within the time limited; notwithstanding which, it had frequently happened that deeds were so recorded, and the Legislature had, from time to time, been called on to legalize these transactions, as will be seen in the laws of 1705, 1710, and 1748, on this subject, and I believe, others; and therefore, to prevent future applications and difficulties on this subject, and the injustice of legalizing deeds not recorded in time, whereby a retrospective operation would be given to them, the law wisely intended to provide a general and equitable rule on the subject; to wit, that as the parties, where the eight months had expired before it was convenient to have the deed recorded, might execute and receive a new deed, and as the old deed is still good between them, it may be admitted to record, so as to be preserved as to them, and to have the same effect as to purchasers and creditors, as if a new deed had then been executed.
But it is asked, how, or when it is to be recorded, how proved, & c.? No jurisdiction is given by the act to any one, to take the acknowledgment and proof, or to record it. The acts, both as to the power of the Court and clerk, restrict the recording and taking proof, & c. to deeds executed and delivered within eight months.
The reasonable, and indeed the only fair construction that could be given to it, it seems to me, would be this; that any conveyance which shall hereafter be recorded (not in any Court whatever, but) in the Court of the county where the land lies, after the expiration of the time now allowed by law, & c., by the authority having power to take the acknowledgment and proof of deeds, and to record the same, shall take effect, and be valid in law, & c. And that this would have been the sound construction, had the matter of this 7th section been the subject of a distinct act, seems to me not only manifest from the reason and nature of the thing, but from the legislative construction put on the act when brought into one by the revision of 1819. Why should the clerk have authority to take proof of, and record a deed, which was to have a retrospective effect, and not one which was merely to operate from the day on which it was recorded? The eight months might run out, if it could not be done in the clerk's office, in the one case, so as to injure the party; and so, in the other, as he could not get his witnesses until the day after the eight months if he must wait for a Court, some one may purchase, & c., and he may thus be injured. They both seem to stand on the same ground of expedience, and as the act does not speak of a recording by order of Court, any more than in the clerk's office, it must have reference to both modes, and impliedly to extend the power of those having a right to take proof, & c. and to record within the time, & c. to the case of deeds out of date.
But if this would be the construction, had this provision in the law been enacted at a subsequent session, I cannot see why it shall not be so construed in the present case.
The 7th section seems to speak this language; that though deeds, if they are to operate retrospectively, can only now be acknowledged or proved and recorded within eight months, by the County Courts, or by the clerks in their offices, as provided by this act; yet they may hereafter be recorded, after the expiration of the time, & c. in the same manner as deeds are to be recorded within the time, & c.; but such deeds shall only take effect and be valid as to creditors, & c. from the time of such recording.
The practice, so far as we may judge from this case, may have been, and probably has been, to record deeds, whether out of date or not, by proof, & c. in the clerk's office; and as that is clearly now the law, and was so a few days after this deed was recorded, it is expedient to adopt this construction if it can be done, as I think it may.
I think, therefore, that the deed is to be taken as duly recorded.
It is not necessary to give an opinion on the other point, as by the opinion of the majority, this seems to settle the question.
RECORDING ACTS.
I. General Principles.
II. Instruments Entitled to Record.
1. Instruments Relating to Real Property.
a. In General.
b. Conveyances of Equitable Title.
c. Mortgages and Deeds of Trust.
d. Contracts for Sale of Land.
e. Powers of Attorney.
2. Instruments Relating to Personal Property.
a. In General.
b. Bills of Sale.
c. Mortgages and Deeds of Trust.
d. Reservations of Title.
e. Assignments of Chose in Action.
3. Lis Pendens.
4. Judgments.
III. Place of Recordation.
1. Instruments Relating to Real Property.
2. Instruments Relating to Personal Property.
IV. Time of Recordation.
V. Prerequisites to Recordation.
1. Signing, Sealing and Delivery.
2. Description of Property Conveyed or Affected.
3. Acknowledgment or Proof of Execution.
4. Prepayment of Tax.
VI. Making the Record.
VII. Failure to Record as Affecting Validity of Instrument.
1. In General.
2. As against Grantor and His Representatives.
3. As against Purchasers and Creditors.
a. Purchasers.
b. Creditors.
4. As against Third Persons with Notice.
VIII. Effect of Recordation as Notice.
1. Instruments Not Entitled to Record.
2. Instruments Entitled to Record.
a. Notice to Whom.
b. Notice of What.
IX. Destruction of Record.
I. GENERAL PRINCIPLES.
Recordation Not Necessary at Common Law. -- The common law does not require any deed or writing in order to pass the title to land, and, of course, therefore, knows nothing of the doctrine of registration. The only notoriety which it demands in such transactions, is livery of seisin for estates of freehold, and entry for estates for years. 2 Min. Insts. (4th Ed.) 937; Braxton v. Bell, 92 Va. 229, 23 S.E. 289.
Recordation Required by Statute. -- In Virginia and West Virginia, the legislature has been alive to the advantages of a general registration of all conveyances of, lienson, and transactions affecting lands, and the system has been gradually perfected, until it is believed there is nothing touching the title to lands which it concerns a purchaser or creditor to know, which is not required to be set down in the registry of the county or corporation where the land is, and that registry is made so convenient of access that for one to be deceived argues, in general, a negligence so gross as to exclude sympathy for the sufferer. 2 Min. Insts. (4th Ed.) 939.
II. INSTRUMENTS ENTITLED TO RECORD.
1. Instruments Relating to Real Property.
a. In General. -- The practice of recording instruments being purely of statutory origin, it follows that no instrument need be recorded in the absence of a statute requiring it, and, as will be seen hereafter, the recording of an instrument not required or entitled to be recorded has no effect whatever. In Virginia and West Virginia almost every kind of instrument which could affect real property in any way is required to be recorded. Thus deeds of conveyance, deeds of trust, mortgages, contracts to convey, the report of commissioners in condemnation proceedings, and many other instruments which affect real property, are expressly required to be recorded, and their recordation is consequently notice to creditors and purchasers. Heermans v. Montague, 2 Va. Dec. 6; Chesapeake, etc., Ry. Co. v. Walker, 100 Va. 69, 40 S.E. 633; Withers v. Carter, 4 Gratt. 407; Dobyn's v. Waring, 82 Va. 159; Guerrant v. Anderson, 4 208; Pace v. Moorman, 99 Va. 246, 37 S.E. 911.
An undelivered deed filed as an escrow in the proceedings of a court of equity, administering a trust fund belonging to a married woman and her infant children, is not within the terms or intendment of the registry act. Trout v. Warwick, 77 Va. 731.
b. Conveyances of Equitable Title. -- It has been held in Virginia that recording acts are applicable to conveyances of the legal title only, and are not applicable to a conveyance of the equitable title. Doswell v. Buchanan, 3 Leigh 365, 23 Am. Dec. 280; Withers v. Carter, 4 Gratt. 407, 50 Am. Dec. 78; Briscoe v. Ashby, 24 Gratt. 454. It is otherwise in West Virginia. Damron v. Smith, 37 W.Va. 580, 16 S.E. 807.
c. Mortgages and Deeds of Trust.
In General. -- Mortgages and deeds of trust conveying real estate are required to be recorded in order to be good against creditors and purchasers of the grantor. Va. Code, § 2468; W.Va. Code, § 5, ch. 74; Chapman v. Chapman, 91 Va. 397, 21 S.E. 813; Dever v. Jordon, 1 Va. Dec. 124; Solenburger v. Duval, 1 Va. Dec. 100; Weinberg v. Rempe, 15 W.Va. 829; Heermans v. MontagueVa. Dec. 6.
Under statutes avoiding unrecorded deeds of trust as to subsequent judgment creditors, a trust deed will be void as to such creditors, notwithstanding the trust had been executed by a sale and conveyance of the property; for in this respect the statutes of registration make no distinction between executed and unexecuted trusts, but are designed to give notice of the state of the title as affected by successive alienations, as well as by incumbrances. Campbell v. Nonpareil Fire-Brick, etc., Co., 75 Va. 291.
Equitable Mortgage. -- A paper intended for a deed of trust, conveying land to secure a debt, signed by the grantor, but without a seal, though not effectual as a deed of trust at law, is an equitable mortgage enforceable in equity, and may be recorded under Code W.Va. 1868, ch. 74, § 4, and when recorded, is a lien valid against subsequent purchasers and creditors. Atkinson v. Miller, 34 W.Va. 115, 11 S.E. 1007.
d. Contracts for Sale of Land. -- It was formerly held that the recording acts requiring deeds to be recorded did not apply to parol or written contracts for the sale of land, and that one in possession of land under such a contract was protected against creditors and purchasers from his grantor, though the contract was not recorded. Floyd v. Harding, 28 Gratt. 401; Burkholder v. Ludlam, 30 Gratt. 255, and note ; March, Price & Co. v. Chambers, 30 Gratt. 299, and note ; Long v. Mfg. Co., 30 Gratt. 665; Trout v. Warwick, 77 Va. 731; Halsey v. Peters', 79 Va. 60; Bowman v. Hicks, 80 Va. 806; Powell v. Bell, 81 Va. 222; Brown v. Butler, 87 Va. 621, 13 S.E. 71; Reynolds v. Necessary, 88 Va. 125, 13 S.E. 348; Frame v. Frame, 32 W.Va. 463, 9 S.E. 901. See 2 Minors Insts. (4th Ed.) 851 et seq. ; Withers v. Carter, 4 Gratt. 407; Eidson v. Huff, 29 Gratt. 338; Anderson v. Nagle, 12 W.Va. 98, 107; Delaplain v. Wilkinson, 17 W.Va. 242, 264, 267; Snyder v. Martin, 17 W.Va. 276 at 289, 299, 300; Pack v. Hansbarger, 17 W.Va. 313, 338; Fowler v. Lewis's, 36 W.Va. 112, 14 S.E. 447.
But this rule is changed by § 2463 of the Va. Code, which provides that " every contract not in writing, made in respect to real estate, or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate on a term therein of more than five years, shall be void, both at law or in equity, as to purchasers for valuable consideration without notice and creditors," and by § 2464 which provides that if the contract is in writing it must be recorded in order to be good against creditors and purchasers. Thorn v. Phares, 35 W.Va. 771, 14 S.E. 399; Hoit v. Haynes, 1 Va. Dec. 201; Young v. Devries, 31 Gratt. 304.
e. Powers of Attorney. -- It seems that a power of attorney for conveyance of lands falls within the letter and spirit of recording acts. Shanks v. Lancaster, 5 Gratt. 110, 50 Am. Dec. 108. See W.Va. Code, § 1, ch. 73, which provides that " a power of attorney may be admitted to record in any court."
2. Instruments Relating to Personal Property.
a. In General. -- The provisions for recording conveyances of land will not be construed as applicable to personalty or choses in action, and in the absence of an express statutory requirement, transfers of personalty need not be recorded. While in Virginia and West Virginia the recording acts have not been extended to embrace absolute sale of personal property, they do embrace reservations of title to and chattel mortgages thereof. Curtin v. Isaacsen, 36 W.Va. 391, 15 S.E. 171; Poling v. Flanagan, 41 W.Va. 191, 23 S.E. 685; Kirkland v. Brune, 31 Gratt. 126; Gregg v. Sloan, 76 Va. 497; Bank v. Gettinger, 3 W.Va. 309; Hundley v. Calloway, 45 W.Va. 516, 31 S.E. 937; Troy Wagon Co. v. Hutton (W. Va.), 44 S.E. 135; Callahan v. Young, 90 Va. 574, 19 S.E. 163.
b. Bills of Sale. -- Contracts for the sale of personalty or absolute bills of sale thereof, unless made in consideration of marriage, are not required to be recorded either in Virginia or West Virginia, and if recorded, such recordation is, of course, not notice to creditors and purchasers. W.Va. Code, § 4, ch. 74; Va. Code § § 2463, 2464, 2465; Braxton v. Bell, 92 Va. 229, 23 S.E. 289.
c. Mortgages and Deeds of Trust. -- Deeds of trust or mortgages upon goods and chattels are required to be recorded by the recording acts of both Virginia and West Virginia. Va. Code § 2465: W.Va. Code, § 5, ch. 74; Kirkland v. Brune, 31 Gratt. 126; Gregg v. Sloan, 76 Va. 497 at 500; Bank v. Gettinger, 3 W.Va. 309 at 317; Troy Wagon Co. v. Hutton (W. Va.), 44 S.E. 135; Curtin v. Isaacsen, 36 W.Va. 391, 15 S.E. 171; Hardaway v. Jones, 100 Va. 481, 41 S.E. 957; McCormick v. Atkinson, 78 Va. 8; Hundley v. Calloway, 45 W.Va. 516, 31 S.E. 937; Poling v. Flanagan, 41 W.Va. 191, 23 S.E. 685; Guerrant v. Anderson, 4 208. It has been held in several cases, however, that the recording acts requiring deeds of trust and mortgages of goods and chattels to be recorded, only to refer to and include personal property which is visible, tangible or movable. They do not include a chose in action, such as a debt, or claim on another for money due, and the assignment of such a debt or claim for value, though not recorded, is good against creditors and purchasers. Kirkland v. Brune, 31 Gratt. 126; Gregg v. Sloan, 76 Va. 497 at 500; Bank v. Gettinger, 3 W.Va. 309 at 317.
Deed Intended as a Mortgage Is a Mortgage. -- A writing importing an absolute sale of chattels, but in fact intended only to secure a debt is a mortgage, and must be recorded as a mortgage of chattels in order to be good against creditors and purchasers without notice. Poling v. Flanagan, 41 W.Va. 191, 23 S.E. 685. See monographic note on " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197.
d. Reservations of Title. -- Before the passage of the act now embodied in § 2462 of the Virginia Code, reservations of title to personal property were not required to be recorded in order to be good against the creditors of the vendee. Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. 664; McComb v. Donald, 82 Va. 903, 5 S.E. 558. But under that section recording is necessary in order for the reservation of title to have effect as against creditors of and purchasers from the vendee. Callahan v. Young, 90 Va. 574, 19 S.E. 163; Arbuckle Bros. v. Gates, 95 Va. 802, 30 S.E. 496; Hash v. Lore, 88 Va. 716, 14 S.E. 365. The provision of § 3, ch. 74 of the Code of West Virginia is to the same effect. But it has been held that the reservation of title need not be acknowledged in order to be entitled to record under this statute. Troy Wagon Co. v. Hutton (W. Va.), 44 S.E. 135.
e. Assignments of Chose in Action. -- Assignments of choses in action are not required to be recorded, and such recordation will not charge third persons with constructive notice. Gordon v. Rixey, 76 Va. 694; Kirkland v. Brune, 31 Gratt. 126; Gregg v. Sloan, 76 Va. 497 at 500; Bank v. Gettinger, 3 W.Va. 309 at 317.
3. Lis Pendens. -- See monographic note on " Lis Pendens" appended to Stoutt v. Vause, 1 Rob. 169.
The common-law rule of lis pendens, is that a pendente lite purchaser from a party to the suit. of the subject matter thereof, takes it subject to any decree rendered against his vendor in that suit. Because of the harsh operation of this rule upon bona fide purchasers, statutes have been enacted in most of the states with a view to protect purchasers who purchase in good faith. These statutes, which have been enacted in Virginia and West Virginia, provide, in substance, that the lien of the lis pendens shall not bind or affect a purchaser of real estate without notice, unless a memorandum setting forth the title of the cause, the court in which it is pending, the general object of the suit, the location and quantity of the land, and the name of the person whose estate is intended to be affected, is filed with the clerk of the county court of the county in which the land is situated. Where the lis pendens is not docketed as provided by these statutes, it is well settled that a purchaser without notice of the pendency of the suit takes a good title. § 13, ch. 139, W.Va. Code; § 3566, Va. Code; Hurn v. Keller, 79 Va. 415; Easley v. Barksdale, 75 Va. 274 at 280; Osborn v. Glasscock, 39 W.Va. 749, 20 S.E. 702; Harmon v. Byram, 11 W.Va. 511; Beckwith v. Thompson, 18 W.Va. 103; Cammack v. Soran, 30 Gratt. 292; DeCamp v. Carnahan, 26 W.Va. 839.
4. Judgments. -- See monographic note on " Judgments" appended to Smith v. Charlton, 7 Gratt. 425.
A judgment is not a lien on real estate as against subsequent purchasers for value and without notice, unless it is docketed in the mode and within the time prescribed by the statute. Va. Code 1873, ch. 182, § 8; W.Va. Code, ch. 139, § 7; Gurnee v. Johnson, 77 Va. 712; Duncan v. Custard, 24 W.Va. 730; Renick v. Ludington, 14 W.Va. 367; Hill v. Rixey, 26 Gratt. 72; Gordon v. Rixey, 76 Va. 694. See also, Bankers' Loan, etc., Co. v. Blair, 99 Va. 606, 39 S.E. 231.
III. PLACE OF RECORDATION.
1. Instruments Relating to Real Property.
County Where Land Lies. -- The recording acts provide that the deed must be admitted to record in the clerk's office of the county in which the land lies. It is held that this statute is mandatory and that the clerk has no authority to admit a deed to record which conveys land outside of his county. Pollard v. LivelyGratt. 216; Horsley v. GarthGratt. 471.
Land Lying in Different Counties. -- An instrument conveying or affecting separate and distinct tracts of land lying in different counties must be recorded in each of such counties; recording in but one of them will be constructive notice only as to the tract lying in that county. Where distinct but adjacent tracts of land lying in different counties are conveyed by one deed, the recording of the deed in only one of the counties is not effectual in regard to the land lying in the other county. Thus where a navigable stream which forms the dividing line between two counties separated the land of a proprietor so as to throw part thereof in one county and part in another, it was held that such parts must be treated as separate tracts and a transfer thereof must be recorded in both counties. Horsley v. GarthGratt. 471, 44 Am. Dec. 493.
Deed to Land near City of Richmond. -- It was held that the clerk's office of the chancery court of the city of Richmond was the proper office for the recordation of deeds conveying land lying within one mile of the city of Richmond on the north side of James river, though outside of the city limits. Burgess v. Belvin, 32 Gratt. 633.
2. Instruments Relating to Personal Property.
The Removal of Property to Another County -- Recordation in County to Which Removal Is Made. -- When the subject of a chattel mortgage is removed from the county in which the mortgage is recorded to another county, the mortgage must be recorded in the latter county within three months after the removal in West Virginia (W. Va. Code, ch. 75, § 7) and within one year from the date of removal in Virginia (Code 1887, § 2468). In construing the West Virginia statute in Hundley v. Calloway, 45 W.Va. 516, 31 S.E. 937, the court held, that where a deed of trust on personal property was recorded in two counties, and the property was then moved to a third county, and the deed of trust was recorded there, it was incumbent upon a purchaser of the property to show that he purchased it in the third county more than three months prior to the recordation of the deed in that county, and that he purchased without notice of the deed of trust.
IV. TIME OF RECORDATION.
An instrument not recorded within the time prescribed by statute is void as against creditors; and for the purpose of determining whether it has been duly recorded, it will be presumed to have been delivered at its date, unless the contrary appears by the record. Harvey v. Alexander, 1 219, 10 Am. Dec. 519.
It was held in Eppes v. RandolphCall 125, that a deed reacknowledged within eight months, from its date, and recorded within four months from the reacknowledgment, was good from the date of the reacknowledgment, although where more than eight months elapsed after the deed was first executed before it was recorded.
V. PREREQUISITES TO RECORDATION.
1. Signing, Sealing and Delivery. -- Of course the instrument is not notice to third persons unless it be sufficiently executed by signing, sealing and delivery, where these are essential to its validity. No attempt will be here made however, to classify the cases wherein instruments have been held sufficient or insufficient as notice for lack of these essentials. For cases on this point reference is made to the monographic notes treating of the particular instruments whose validity was questioned on this ground. See monographic note on " Deeds of Trust" appended to Cadwallader v. Mason, Wythe 188; " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197; " Deeds" appended to Fiott v. Com., 12 Gratt. 564; " Assignments for the Benefit of Creditors" appended to French v. Townes, 10 Gratt. 513.
2. Description of Property Conveyed or Affected. -- As to description necessary in particular instruments, see monographic notes on " Deeds of Trust" appended to Cadwallader v. Mason, Wythe 188; " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197; " Deeds" appended to Fiott v. Com., 12 Gratt. 564; " Assignmeuts for Benefit of Creditors" appended to French v. Townes, 10 Gratt. 513.
Must Put Third Persons on Enquiry. -- In order for the recordation of an instrument to amount to constructive notice to creditors, and purchasers, the description of the property conveyed must be such as to enable them, aided by the inquiries, which the instrument suggests, to identify the property. The recorded instrument is sufficient to operate as constructive notice under the registry laws if the property be so described or identified that a subsequent purchaser or incumbrancer would have the means of ascertaining with accuracy what and where it was, and the language used be such that, if he should examine the instrument itself, he would obtain thereby actual notice of all rights which were intended to be created or conferred by it. Florance v. Morien, 98 Va. 26, 34 S.E. 890.
Where Enquiry Reveals Nothing. -- If a purchaser has knowledge of any fact or circumstance sufficient to put him upon enquiry as to the existence of some right or title in conflict with that which he is about to purchase, and makes the enquiry suggested by such circumstances, and anything detrimental to the right he is about to acquire, is concealed or withheld from him, he cannot be affected by an undisclosed encumbrance or latent equity. Kelly v. Land Co., 97 Va. 227, 33 S.E. 598.
Examples. -- A deed of trust on " four mules," which does not give their color, sex, size, age, from whom purchased, nor state where or in whose possession they are, nor mention the residence of the grantor, the trustee, or the beneficiary therein, does not give constructive notice under § 2468 of the Code to innocent third persons. " In no case that we have seen has the recordation of a deed of trust been held to be constructive notice which contained no description of the animals conveyed except their number, which did not state in whose possession the property was or where it was located or might be found, or where any party to the deed resided." Hardaway v. Jones, 100 Va. 481, 41 S.E. 957.
The registry of a deed purporting to convey " all the estate, both real and personal," to which the grantor is entitled at the time of the conveyance is not notice to a subsequent purchaser of the existence of the deed; nor would notice in point of fact of the existence and contents of such deed affect a purchaser, unless he had further notice that the property purchased by him was embraced by the provision of the deed. Mundy v. Vawter, 3 Gratt. 518; Warren v. Syme, 7 W.Va. 474.
A deed conveying " all the right, title and interest of R. V. M. and wife, in and to the real estate lying in the county of Henrico, of which R. M. died seised and possessed," and duly recorded, contains a sufficient description of the property to put subsequent purchasers on notice, under the registry laws. Florance v. Morien, 98 Va. 26, 34 S.E. 890.
It has been held that the grantee in a quitclaim deed, with covenant of special warranty, which purports to convey " such interest only as they (the grantors) now have, whatever that may be" takes in subordination to a prior unrecorded deed, and such quitclaim deed cannot be introduced in evidence to defeat the title deduced under such prior unrecorded deed. Va. & Tenn. Coal & Iron Co. v. Fields, 94 Va. 102, 26 S.E. 426.
In Bankers Loan, etc., Co. v. Blair, 99 Va. 606, 39 S.E. 231, it was held that the docketing and indexing of a judgment in the name of " Mrs. John Smith," was no notice of a judgment against Mary Smith, who was in fact the wife of John Smith.
3. Acknowledgment or Proof of Execution. -- See monographic note on " Acknowledgments" appended to Taliaferro v. Pryor, 12 Gratt. 277.
Under the statutes, a valid acknowledgment or proof of execution is a prerequisite to the registration of an instrument, and the recording of an unacknowledged or defectively acknowledged instrument has no effect whatever. Moore v. Auditor, 3 Hen. & M. 232; Raines v. Walker, 77 Va. 92; Nicholson v. Gloucester Charity School, 93 Va. 101, 24 S.E. 899; Iron Belt Bldg., etc., Assoc. v. Groves, 96 Va. 138, 31 S.E. 23; Fleming v. Ervin, 6 W.Va. 215; Tavenner v. Barrett. 21 W.Va. 656; Parkersburg Nat. Bk. v. Neal, 28 W.Va. 744; Abney v. Ohio Lumber, etc., Co., 45 W.Va. 446, 32 S.E. 256; Cox v. Wayt. 26 W.Va. 807; Carper v. M'Dowell, 5 Gratt. 212 at 233; Davis v. Beazley, 75 Va. 491; Robinson v. Pitzer, 3 W.Va. 335.
It has been held that it is not necessary that a contract reserving to the seller of chattels, title until payment shall be acknowledged, to be recorded under § 3, ch. 74 of the Code of 1899. Troy Wagon Co. v. Hutton (W. Va.), 44 S.E. 135.
4. Prepayment of Tax. -- The Virginia statute providing that no deed shall be admitted to record until the tax thereon is paid is directory merely; the clerk may refuse to admit the deed to record until the tax is paid, but if he chooses to admit it without prepayment he assumes the tax and the admission to record is valid. Lucas v. Clafflin, 76 Va. 269.
But a clerk is not bound to admit to record a deed which is not stamped as is required by law. Hill v. Rixey, 26 Gratt. 72 at 80.
VI. MAKING THE RECORD.
Instrument Must Be Kept for Recordation during Office Hours. -- In order that an instrument may be filed for record it must be carried to the recording clerk's office and left with the clerk for the purpose of having it recorded. Going to the clerk's office just before midnight, and he not being there, taking it to his house just before sunrise the next morning and personally delivering it to him, stating the other attempt, does not make it good as a recorded deed from such previous day but only from the time of its actual delivery to the clerk. Horsley v. GarthGratt. 471, 44 Am. Dec. 393.
Admission of Deed to Record Has Same Effect as Recordation. -- The admission of a deed to record has the same effect as if the deed were actually spread on the deed book, and a clerk who has once duly admitted a deed to record has no more power to recall his act than he would have to strike from the deed book a deed duly engrossed thereon. Mercantile Co-Operative Bank v. Brown, 96 Va. 614, 32 S.E. 64.
Leaving Instrument with Clerk Sufficient. -- When a contract selling chattels, and reserving title until payment is left with the clerk of the county court to be recorded, it is deemed that its record is complete, and the fact that it is recorded in the " miscellaneous record book" will not invalidate its recordation. Troy Wagon Co. v. Hutton (W. Va.), 44 S.E. 135.
By Clerk Who Is an Interested Party. -- The clerk acts to a certain extent judicially in taking and certifying acknowledgments of deeds and other writings in his office and admitting them to record, and therefore in accordance with the maxim that no man can be a judge in his own cause, the clerk is not allowed to perform any of those acts where his private interest might conflict with his duty to third parties and the public. Davis v. Sims, 1 Va. Dec. 390.
But a clerk who counseled a grantor in preparing an assignment, and who is trustee therein, may validly admit it to record, such act being merely ministerial. Paul v. Baugh, 85 Va. 955, 9 S.E. 329.
Recordation by Clerk after Ordinance of Secession. -- The recordation of a deed by a clerk of a county court, who continued to exercise his office after the state had passed the ordinance of secession, but while the country was under the military power of the confederates, was a valid recordation, and will be so recognized in all judicial proceedings. Henning v. Fisher, 6 W.Va. 238.
Deed Need Not Be Indexed. -- The recordation of a deed, though not indexed is notice to subsequent purchasers; for while the index is the key to the deed books, it is not essential to registry. Va. Bldg. etc., Co. v. Glenn, 99 Va. 460, 39 S.E. 136; Old Dom. Gran. Co. v. Cl. Ch. 28 Gratt. 617.
Judgments Must Be Indexed. -- Before the passage of § 3561, Va. Code, it had been held, in Old Dominion Granite Co. v. Cl. Ch. 28 Gratt. 617, that the indexing was no part of the docketing of the judgment It is now expressly provided by § 3561 that no judgment shall be regarded as docketed as to any defendant in whose name it is not so indexed. Fulkerson v. Taylor, 100 Va. 426, 41 S.E. 863; Callahan v. Young, 90 Va. 574, 19 S.E. 163.
An allegation in a bill that a judgment sought to be enforced was duly docketed is a sufficient allegation of the indexing of the judgment as required by § 3561 of the Code, but if the fact of indexing be put in issue it must be proved, and it would seem that this is not sufficiently done by the mere production of an abstract of the judgment which does not certify that it was duly docketed, and makes no reference to the indexing. Fulkerson v. Taylor, 100 Va. 426, 41 S.E. 863.
Mandamus Lies to Compel Clerk to Admit Instrument to Record. -- Mandamus is the proper remedy to compel the clerk to admit to record an instrument entitled to record. Delaney v. Goddin, 12 Gratt. 266; Randolph Justices v. Stalnaker, 13 Gratt. 523; Manns v. Givens, 7 Leigh 689; Dawson v. ThrustonHen. & M. 132; Callahan v. Young, 90 Va. 574, 19 S.E. 163.
Statutes Curing Defective Recordation. -- A statute which undertakes to give a retrospective effect to an invalid recordation, and thus divert or interfere with the rights of creditors and purchasers, is, to say the least, of doubtful policy; and although the words of a statute are broad enough in their literal extent to comprehend existing cases, they may be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein. Campbell v. Nonpareil F. B. & K. Co., 75 Va. 291.
VII. FAILURE TO RECORD AS AFFECTING VALIDITY OF INSTRUMENT.
1. In General. -- The object of the recording acts being to protect certain specified classes of persons against fraud, failure to record will not, in the absence of an express provision to that effect, render the instrument void and inoperative to convey the legal title; the unrecorded instrument is valid against every one except the classes included within the terms of the statute. Guggenheimer v. Lockridge, 39 W.Va. 457, 19 S.E. 874. Of course it is competent for the legislature to provide that the recording of an instrument shall be part of its execution, and where there is a statute so providing, the title does not pass until the instrument is recorded. In Virginia there is a statute which provides that recordation is necessary to the validity of a conveyance by a married woman, consequently the deed of a married woman conveys no estate until it is duly admitted to record. Rorer v. Roanoke National Bank, 83 Va. 589, 4 S.E. 820; Bldg., etc., Co. v. Fray, 96 Va. 559, 32 S.E. 58.
Unavoidable Circumstances No Excuse. -- As to those classes of persons embraced within the terms of the recording acts, a prior unrecorded conveyance is void, and this legal consequence of a failure to record will not be affected by the fact that such failure was due to unavoidable circumstances beyond the grantee's control. Eppes v. RandolphCall 125; Harvey v. Alexander, 1 219; Withers v. Carter, 4 Gratt. 407.
2. As Against Grantor and His Representatives. -- Of course the instrument is good against the grantor, his heirs and personal representatives without recordation. Recordation is only necessary as against creditors and purchasers. Wade v. GreenwoodRob. 474; Guerrant v. Anderson, 4 208; Raines v. Walker, 77 Va. 92; Thomas v. Stuart, 91 Va. 694, 22 S.E. 511. See Building, etc., Co. v. Fray, 96 Va. 559, 32 S.E. 58; Withers v. Carter, 4 Gratt. 407, 50 Am. Dec. 78; Guggenheimer v. Lockridge, 39 W.Va. 457, 19 S.E. 874; Morgan v. Snodgrass, 49 W.Va. 387, 38 S.E. 695.
3. As against Purchasers and Creditors.
a. Purchasers. -- The Virginia and West Virginia registry laws declare that a failure to record the instrument avoids it as to purchasers and creditors. In construing these acts it has been held that a purchaser is one who takes the estate for a valuable consideration, but it need not be money paid at the time; it is well settled that a pre-existing debt is a sufficient consideration to protect a purchaser. Evans v. Greenhow, 15 Gratt. 153, and foot-note ; Exchange Bank v. Knox, 19 Gratt. 739, and foot-note ; Cammack v. Soran, 30 Gratt. 292; Chapman v. Chapman, 91 Va. 397, 21 S.E. 813; Wickham v. Lewis, 13 Gratt. 427; Williams v. Lord, 75 Va. 390 at 404; Witz v. Osburn, 83 Va. 227S.E. 33; Davis v. Miller, 14 Gratt. 1.
Grantee in Quitclaim Deed. -- It is a general rule that one claiming under a quitclaim deed is not a purchaser for value, within the meaning of the recording acts, and that he takes subject to a prior deed though it be unrecorded. Va., etc., Coal, etc., Co. v. Fields, 94 Va. 102, 26 S.E. 426.
Subsequent Mortgagees -- Subsequent mortgagees of an estate are purchasers within the meaning of the recording acts. Weinberg v. Rempe, 15 W.Va. 829.
Trustee in Deed of Trust. -- It is well settled that a trustee in a deed of trust to secure debts is a purchaser for value within the meaning of the recording acts; but whether or not he is a purchaser without notice depends on the circumstances of the case. See monographic note on " Deeds of Trust" appended to Cadwallader v. Mason, Wythe 188.
One Put on Inquiry. -- One is considered a purchaser with notice of another's equity, whenever he has such notice of such facts as would put him on inquiry; for the law imputes to a person knowledge of facts, of which the exercise of common prudence and ordinary diligence must have apprised him. Cain v. Cox, 23 W.Va. 594.
Purchasers of Different Tracts from Same Vendor. -- The provision of § 5, ch. 114 of the Code of 1873, that every deed, etc., " shall be void as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time it is duly admitted to record," etc., does not apply to purchasers of different tracts of land from the same vendor but refers only to " subsequent purchasers" of the same subject, as that embraced in the instrument declared to be void. Harman v. Oberdorfer, 33 Gratt. 497.
b. Creditors. -- An unrecorded deed is void as to all creditors who, but for the deed, would have had a right to subject the property conveyed to their debts, whether such debts were contracted before or after such deed. The word " subsequent" in § 2465 of the Code applies to purchasers only. Price v. Wall, 97 Va. 334, 33 S.E. 599.
The recording acts only protect creditors who have affected a lien on the conveying debtor's property by attachment, judgment or otherwise, before the recordation of the prior conveyance. Houston v. McCluney, 8 W.Va. 135; McCandlish v. Keen, 13 Gratt. 615; Dulaney v. Willis, 95 Va. 606, 29 S.E. 324.
4. As against Third Persons with Notice. -- Purchasers who take with notice of a prior unrecorded conveyance, will not be entitled to the protection of the recording acts. The purpose of such act is to prevent fraud upon persons subsequently contemplating the acquisition of an interest in the property conveyed or affected by placing the means of obtaining information of prior alienations within their reach. And if a prospective purchaser has actual notice of a prior conveyance of the property, the necessity for recording is, as to him, removed, for it cannot be said that a prior conveyance of which he has knowledge can be employed in fraud of him. Doswell v. Buchanan, 3 Leigh 365; McClure v. ThistleGratt. 182; Mundy v. Vawter, 3 Gratt. 518; Long v. Weller, 29 Gratt. 347; Wood v. Krebbs, 30 Gratt. 708; Vest v. Michie, 31 Gratt. 149; Newman v. Chapman 93; Smith v. Profitt, 82 Va. 832; National, etc., Assoc. v. Blair, 98 Va. 490, 36 S.E. 513; Mercantile Bk. v. Brown, 96 Va. 614, 32 S.E. 64; Cosgray v. Core, 2 W.Va. 353; Cox v. Cox, 5 W.Va. 335; Cain v. Cox, 23 W.Va. 594.
A bona fide purchaser from a purchaser with notice is protected by the recording acts, as is also a purchaser with notice from a bona fide purchaser. Lacy v. Wilson, 4 Munf. 313; Claiborne v. Holland, 88 Va. 1046, 14 S.E. 915.
In Virginia conveyances of land are void as creditors notwithstanding that they have actual notice of a prior unrecorded deed. Guerrant v. Anderson, 4 208; Price v. Wall, 97 Va. 334, 33 S.E. 599; Heermans v. MontagueVa. Dec. 6.
VIII. EFFECT OF RECORDATION AS NOTICE.
1. Instruments Not Entitled to Record. -- Constructive notice from the record being dependent upon purely statutory provisions, it naturally follows that such effect will not be given to any and every recorded instrument, but only to such as fail within the statute. Therefore, if an instrument be not of a kind authorized by law to be recorded, or if though within the contemplation of the statute, it be not entitled to record because of its defective execution or a failure to comply with some of the prerequisites to recordation, the record thereof will be a mere nullity and will not operate to give constructive notice. Lee v. TapscottWash. (VA) 276; Trout v. Warwick, 77 Va. 731; Braxton v. Bell, 92 Va. 229, 23 S.E. 289. See monographic note on " Acknowledgments" appended to Taliaferro v. Pryor, 12 Gratt. 277.
2. Instruments Entitled to Record.
a. Notice to Whom. -- The record imparts constructive notice to such persons only as would have been entitled to protection against the conveyance in case it had not been recorded, or, in other words, to such persons as are under a legal obligation to search for it. Lynchburg, etc., B. & L. Co. v. Fellers, 96 Va. 337, 31 S.E. 505.
The operation of the record as notice is prospective and not retrospective. It is only a subsequent conveyance which defeats a prior unrecorded conveyance, and therefore only persons who acquired their rights subsequently to the registration can be said to be charged with notice of a recorded conveyance. Lynchburg, etc., B. & L. Ass'n v. Fellers, 96 Va. 337, 31 S.E. 505; Bridgewater Roller Mills Co. v. Strough, 98 Va. 721, 37 S.E. 290.
It seems that a prior mortgagee is not affected with constructive notice from the record of a subsequent deed or mortgage of the same land; to charge him he must be given actual notice. Bridgewater Roller Mills Co. v. Strough, 98 Va. 721, 37 S.E. 290.
A record gives constructive notice only to persons in the same line of title, or, in other words, only to persons who must trace their title through the same grantor. Claiborne v. Holland, 88 Va. 1046, 14 S.E. 915. Thus, where a conveyance of land is not recorded and the grantee therein subsequently conveys to a third person, the record of the latter conveyance is not constructive notice to a subsequent purchaser from the grantor in the prior unrecorded conveyance, since such purchaser does not trace title through such record. Jones v. Byrne, 94 Va. 751, 27 S.E. 591; Hulvey v. Hulvey, 92 Va. 182, 23 S.E. 233.
b. Notice of What. -- The record of an instrument entitled to registration imparts to such persons as are bound thereby constructive notice of all facts which they could have ascertained by an actual examination of the record, not only of those recited in the record but also of those as to which it reasonably suggests an inquiry and which would be disclosed by such inquiry. A subsequent purchaser is entitled to rely upon the record, and cannot be charged with constructive notice of latent equities of facts not disclosed or suggested by the record itself. Davison v. WaiteMunf. 527; Colquhoun v. Atkinsons, 6 Munf. 550; Bell v. HammondLeigh 416; Mundy v. Vawter, 3 Gratt. 518; Houston v. McCluney, 8 W.Va. 135 at 150; McClanachan v. SiterGratt. 280.
Where the property conveyed is not described sufficiently to identify it with reasonable certainty, and there is nothing to put the searcher on inquiry, the record will not give constructive notice of the conveyance. Hardaway v. Jones, 100 Va. 481, 41 S.E. 957. But the record, although defective as regards the description of the property, will nevertheless operate as notice if sufficient to put a reasonable man on inquiry as to what property was actually intended to be conveyed by it. Florance v. Morien, 98 Va. 26, 34 S.E. 890.
IX. DESTRUCTION OF RECORD.
A grantee in an instrument evidencing a conveyance to him, who has complied with the requirement of the law in effecting the record of the instrument, cannot lose the effect given to such recordation by a subsequent destruction of the record, as by fire or other cause; and in such case, it seems that he is not obliged to record the instrument a second time, or do any other act to notify purchasers, in order to protect his rights acquired thereunder. Armentrout v. Gibbons, 30 Gratt. 632.
[*]For monographic note on Recording Acts, see end of case.
[*]The President and Judge Green absent.