Herndon v. Doe ex dem. Kimball

7 Ga. 432

• Court: Supreme Court of Georgia
• Decided: September 15, 1849
• Docket: No. 71
• Status: Published

Opinion

By the Court. —

Warner, J.

delivering the opinion.

Two questions are made by the record in this case. First, whether the registry of a deed, under the Registry Acts of this State, defectively proved or acknowledged, is constructive notice to subsequent purchasers?

Second, where a purchaser at Sheriff’s sale, who by fraudulent representations, purchases land at a mere nominal price, and afterwards sells it to a bona fide purchaser, without notice of the fraud, whether such bona fide purchaser will be protected in' his purchase against the fraud of the first purchaser at Sheriff’s sale ?

[1.] The Court below decided, that the deed so registered was constructive notice to subsequent purchasers, and that a bona fide purchaser, without notice of the fraud, was not protected. We think the Court below was wrong on both questions. The registry of a deed, not proved or acknowledged according to law, is not constructive notice to a subsequent purchaser, although recorded in the proper County. Heister vs. Fortner, 2 Binney’s R. 40. Frost vs. Beekman, 1 Johns. Ch. R. 300.

[2.] Story purchased the lot of land in controversy at Sheriff’s sale, and fraudulently represented he had a deed to the land, which enabled him to purchase it at a mere nominal sum. There is no evidence that the Sheriff participated in the fraud of Story. Subsequently, Story sold the land to Beavers, and Beavers to Zelnor, both of whom were bona fide purchasers, without notice of the fraud. In Truluck vs. Peeples, (3 Kelly, 446,) this Court held, that a bona fide purchaser of land, without notice of any fraud or defect in the title, from one affected with notice, would be protected.

Let the judgment of the Court below be reversed.