Baldwin, J.,
delivered the opinion of the Court—Field J., concurring.
We have given the important questions raised by the record, our most serious attention. The amount involved in this particular case is not considerable, but the principles are of the greatest importance. The questions are not free from difficulty; indeed, they are full of embarrassment, arising not only from several decisions of our own Court, which, to say the least, do not seem altogether consistent, and from the conflicting nature of the decisions in other States and in Great Britain. Upon no subject is it more important that the law should be beyond doubt as to its construction, and simple and precise in its provisions. And it may well merit legislative consideration, whether the Statutes of Registration should not be thoroughly revised, so as to secure uniform and certain rules for the disposition and protection of real estate in the future.
It is not necessary to review the various decisions of this Court. The questions we are considering turn upon the proper construction of the twenty-fourth and twenty-sixth sections of the Recordation Act of 1850. This is the language of the twenty-fourth section, as amended in 1855 : “ Every conveyance of real estate, and every instrument of writing, setting forth an agreement to convey any real estate, or whereby any real estate may be affected, proved, acknowledged, and certified in the manner prescribed in this Act, to operate as notice to third persons, shall be recorded in the office of the Recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto, without such record.”
The twenty-sixth section is as follows: “ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this Act, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.”
It would seem that the Legislature designed, in the twenty-fourth section, to hold that the recording of the deed was necessary to give notice of it to third persons, and supposed that the want of such notice [374]*374invalidated the deed as to them; but that afterwards the twenty-sixth section was inserted, wThich was intended to qualify and limit the effect of this provision. The twenty-sixth section is taken from the legislation of New York on that subject, and is in the words of a section of a statute of that State. Taking both sections together, it seems evident that the true construction is, that the failure of a grantee to record a deed, does not absolutely and without exception avoid the deed as to third persons ; for, if it did, it is impossible to give effect to the words “ bona fide purchaser for a valuable consideration.” The failure to register only protects this class of persons. Under the registration laws of England and the American States, (which did not contain this limitation) Courts of Equity engrafted this exception, and held, in numerous cases, that the purchaser of lands, knowing them to have been before sold by the vendor, though the deed was not recorded, was not within the protection of the statute. (Sec. 10, John. 457) The Irish Registry Act makes no exception or qualification, but the record is the only notice ; and, in some of the States—Massachusetts, Maine, and perhaps others—actual notice is the only substitute for the notice by the registry.
The question arises, who is a bona fide purchaser, or what is a bona fide purchase ? And this inquiry has been the fruitful source of diffi-' culty, and contention, and conflicting decision. A priori, it might, perhaps, be considered not a little difficult to say that a party buying land in the possession of another, must necessarily be a fraudulent purchaser, especially when he buys with record proof before him of the ownership of his vendor. It could scarcely be held that such a purchaser must necessarily know that the vendor had no title, and that the possessor had. Some of the cases hold that mere possession is actual notice—and will not suffer any proof to be made to the contrary —other, and perhaps the greater number, hold that it is only a presumption of notice, which may be rebutted; and others again hold that the possession is not so much notice of the title of the holder, as a circumstance which should put the purchaser on inquiry, and if he fails to inquire, he is no more protected than if he had inquired and ascertained the fact.
In New York the cases are by no means harmonious—the earlier [375]*375cases holding with more strictness to the doctrine of notice than- those of later date. It must be conceded, however, that the authorities, not only in New York, but elsewhere, are overwhelming to the point that possession is proof of notice—whether prima facie or absolute, it is not necessary to inquire here—of the title of the possessor. This is the doctrine of the Supreme Court of the United States, and of every State in the Union, with the three or four exceptions.
It is urged against this array of authority, that this matter of possession is a fact, not a principle ; that the fact must have its force in different States or places, according to circumstances; that this fact in England or Massachusetts, owing to local circumstances, has a significance which is denied by the circumstances prevailing here ; that in the older States titles are settled and easily understood, but that the reverse of this stable condition of affairs characterizes our younger and unsettled State; and that, besides this, we have a statute unknown to those States, allowing the purchase of land in adverse possession ; that, in addition to this, much of the real estate of the country is held by disputed titles, and no considerable portion by no pretense of it. The force of this argument is conceded; but something may be urged on the other side. Some latitude should probably be indulged in a new State, whose people, hastily gathered together, are, many of them, unfamiliar with their own laws ; and it is not strange that, under the peculiar circumstances which surround them, great negligence and laxity in the transaction of business, both in individuals and public officers, prevailed; and hence much that may be attributed to ignorance, carelessness and accident, prevented the preservation and protection of land titles. But, besides this, we do not see enough in these suggestions to induce us to disregard an array of authority so formidable.
We acknowledge the weight of the considerations of public policy which suggest that land titles should be made to depend upon written and record proof, with few exceptions, and to leave as little to paroi proof as possible ; and especially do we acknowledge the paramount importance of establishing clear, precise and definite rules in respect to contracts and property; such rules as furnish of themselves authen[376]*376tic guides to Courts and juries, and give to the citizen certain ideas of his rights, and leave as little as possible to litigation or the discretion of the Judge. But this policy addresses itself to the Legislature, and we cannot give effect to it in this case, in the face of a clear persuar sion that the law, as it is written, is otherwise.
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Baldwin, J.,
delivered the opinion of the Court—Field J., concurring.
We have given the important questions raised by the record, our most serious attention. The amount involved in this particular case is not considerable, but the principles are of the greatest importance. The questions are not free from difficulty; indeed, they are full of embarrassment, arising not only from several decisions of our own Court, which, to say the least, do not seem altogether consistent, and from the conflicting nature of the decisions in other States and in Great Britain. Upon no subject is it more important that the law should be beyond doubt as to its construction, and simple and precise in its provisions. And it may well merit legislative consideration, whether the Statutes of Registration should not be thoroughly revised, so as to secure uniform and certain rules for the disposition and protection of real estate in the future.
It is not necessary to review the various decisions of this Court. The questions we are considering turn upon the proper construction of the twenty-fourth and twenty-sixth sections of the Recordation Act of 1850. This is the language of the twenty-fourth section, as amended in 1855 : “ Every conveyance of real estate, and every instrument of writing, setting forth an agreement to convey any real estate, or whereby any real estate may be affected, proved, acknowledged, and certified in the manner prescribed in this Act, to operate as notice to third persons, shall be recorded in the office of the Recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto, without such record.”
The twenty-sixth section is as follows: “ Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this Act, shall be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, where his own conveyance shall be first duly recorded.”
It would seem that the Legislature designed, in the twenty-fourth section, to hold that the recording of the deed was necessary to give notice of it to third persons, and supposed that the want of such notice [374]*374invalidated the deed as to them; but that afterwards the twenty-sixth section was inserted, wThich was intended to qualify and limit the effect of this provision. The twenty-sixth section is taken from the legislation of New York on that subject, and is in the words of a section of a statute of that State. Taking both sections together, it seems evident that the true construction is, that the failure of a grantee to record a deed, does not absolutely and without exception avoid the deed as to third persons ; for, if it did, it is impossible to give effect to the words “ bona fide purchaser for a valuable consideration.” The failure to register only protects this class of persons. Under the registration laws of England and the American States, (which did not contain this limitation) Courts of Equity engrafted this exception, and held, in numerous cases, that the purchaser of lands, knowing them to have been before sold by the vendor, though the deed was not recorded, was not within the protection of the statute. (Sec. 10, John. 457) The Irish Registry Act makes no exception or qualification, but the record is the only notice ; and, in some of the States—Massachusetts, Maine, and perhaps others—actual notice is the only substitute for the notice by the registry.
The question arises, who is a bona fide purchaser, or what is a bona fide purchase ? And this inquiry has been the fruitful source of diffi-' culty, and contention, and conflicting decision. A priori, it might, perhaps, be considered not a little difficult to say that a party buying land in the possession of another, must necessarily be a fraudulent purchaser, especially when he buys with record proof before him of the ownership of his vendor. It could scarcely be held that such a purchaser must necessarily know that the vendor had no title, and that the possessor had. Some of the cases hold that mere possession is actual notice—and will not suffer any proof to be made to the contrary —other, and perhaps the greater number, hold that it is only a presumption of notice, which may be rebutted; and others again hold that the possession is not so much notice of the title of the holder, as a circumstance which should put the purchaser on inquiry, and if he fails to inquire, he is no more protected than if he had inquired and ascertained the fact.
In New York the cases are by no means harmonious—the earlier [375]*375cases holding with more strictness to the doctrine of notice than- those of later date. It must be conceded, however, that the authorities, not only in New York, but elsewhere, are overwhelming to the point that possession is proof of notice—whether prima facie or absolute, it is not necessary to inquire here—of the title of the possessor. This is the doctrine of the Supreme Court of the United States, and of every State in the Union, with the three or four exceptions.
It is urged against this array of authority, that this matter of possession is a fact, not a principle ; that the fact must have its force in different States or places, according to circumstances; that this fact in England or Massachusetts, owing to local circumstances, has a significance which is denied by the circumstances prevailing here ; that in the older States titles are settled and easily understood, but that the reverse of this stable condition of affairs characterizes our younger and unsettled State; and that, besides this, we have a statute unknown to those States, allowing the purchase of land in adverse possession ; that, in addition to this, much of the real estate of the country is held by disputed titles, and no considerable portion by no pretense of it. The force of this argument is conceded; but something may be urged on the other side. Some latitude should probably be indulged in a new State, whose people, hastily gathered together, are, many of them, unfamiliar with their own laws ; and it is not strange that, under the peculiar circumstances which surround them, great negligence and laxity in the transaction of business, both in individuals and public officers, prevailed; and hence much that may be attributed to ignorance, carelessness and accident, prevented the preservation and protection of land titles. But, besides this, we do not see enough in these suggestions to induce us to disregard an array of authority so formidable.
We acknowledge the weight of the considerations of public policy which suggest that land titles should be made to depend upon written and record proof, with few exceptions, and to leave as little to paroi proof as possible ; and especially do we acknowledge the paramount importance of establishing clear, precise and definite rules in respect to contracts and property; such rules as furnish of themselves authen[376]*376tic guides to Courts and juries, and give to the citizen certain ideas of his rights, and leave as little as possible to litigation or the discretion of the Judge. But this policy addresses itself to the Legislature, and we cannot give effect to it in this case, in the face of a clear persuar sion that the law, as it is written, is otherwise.
We must, therefore, hold, in obedience to this authority, that the open, notorious possession of real estate, by one having an unrecorded deed for it, is evidence of notice to a subsequent purchaser, of the first vendee’s title. To guard against misapprehension, we say that the possession must exist at the time of the acquisition of title or deed of the subsequent vendee^ from the common vendor.
It appears by the express finding of the Court, that Knox, the vendee of Glenn, entered into possession of the premises after his purchase in 1851, and made permanent and valuable improvements ; that up to the time of his death, he was in possession, as was his administrator after his death, until after the purchase by Hunter. The finding is, that the administrator was in “ the notorious possession of the property at the time of the plaintiff’s purchase.” But it is by no means clear, from the evidence, whether the Judge, in his finding, meant to assert that this was a personal possession, or possession by a tenant or tenants; for the finding is that defendants hold under a lease from Knox’s administrator. When the lease commenced does not appear. The other evidence introduced to show knowledge by Hunter of the deed from Glenn to Knox, was, taken alone, clearly insufficient. Wyatt v. Burnell, 19 Vesey, 435 ; Jolland v. Strainbridge, 3 Vesey, Jr., 478 ; Scott v. Gallagher, 14 S. & R. 333.
The deed of 1856 may be laid out of the question. It was made after the death of Knox, and though made to him and “ his heirs,” the word “ heir, ” is not a word of purchase, carrying title to the heirs, but only qualifying the title of the grantee. A deed to a dead man is a nullity.
The deed of 1851, at the instance of Forbes, is attacked. The deed was executed under a power from Glenn, very general in its terms, and evidently intended to give to the attorney authority to act for the principal in respect to the latter’s businesss in California; it [377]*377authorized the attorney “ to make and execute conveyances.” The money was received by Forbes, and the execution of the deed seems to have been approved by Glenn. We think, therefore, that this deed cannot be assailed for want of authority to execute it. It was not recorded.
If Hunter had legal notice of this deed, we think it was enough to defeat his purchase.
The Statute of California, already cited, only protects purchasers ; creditors, as such, do not seem to be included within its provisions; but a judgment creditor, purchasing at his own sale, without notice, is a bona fide purchaser within the Act. The cases are not agreed upon this subject, but the weight of authority and the reason of the rule are as we have stated it. 4 Cowen, 599 ; 15 Wend. 588; 8 Ib. 620 ; 5 Mo. 387 ; 8 Ala. 866 ; 9 Ohio, 184; 1 Barr, 24.
Upon the trial, Mr. D. W. Welty, the attorney for the plaintiff, was examined as a witness for the defendant, to prove that while he was acting as agent for plaintiff, he ascertained the facts in relation to the title or claim of Knox to this property. Though this examination was not very regular, yet we are inclined to think the witness should have answered the generaVquestion, or protected himself by his privilege or that of his client. It is clear that the knowledge of the agent in the course "of the agency, is the knowledge of the principal; and while the attorney is not permitted to disclose the confidential communications of his client, yet if he acquires information apart from any such communications, he is not protected from disclosing it. We do not understand that the witness was required to state any facts derived from statements of his client, but merely to state facts coming to his knowledge from independent sources.
The judgment is reversed, and the cause remanded for a new trial.
I dissent, for reasons which I shall file hereafter.
Terry, O. J.