Emmett, C. J.
By the Court. The defence assumed in the argument of this case, that the Judge below found as a matter of fact that Charles Brown was a Iona fide purchaser, for a valuable consideration, of the lands in question; and hence it is insisted that we should not disturb that finding, unless it is grossly against the weight of evidence; that where the facts of a case- are submitted to the Court, the decision of the Judge thereon is entitled to the same consideration as the verdict of a jury.
One great reason why Courts are loth to disturb the verdict of a jury upon a question of fact, is because the jury, having the advantage of witnessing the appearance and conduct of the witnesses on the stand, are better able to judge of the weight to be given to their testimony; and being equally competent to determine matters of fact with the Court, an appeal from their decision is equivalent to appealing from the judgment of twelve competent men, to the judgment of a less number, who are no better qualified to decide such questions, and have not the advantage of seeing the conduct of the witnesses while testifying. The same reasons operate in favor of the decision of a single judge upon a question of fact, from oral testimony taken before him. But where the fact depends Wholly upon written or documentary evidence,' there is no reason for the application of the rule, besides, as our Courts are constituted, such an appeal would be from the judgment of but one man to the judgment of three, upon the same evi" dence. Hence, in all chancery suits-under the old system, where witnesses were not examined in open Court, the decision of the Yice-Chancellor upon a question of fact submitted to him was reviewed upon appeal, with no more hesitation than his decisions upon questions of law. The weight, therefore, which we would feel disposed to give to the decision of a single Judge upon questions of fact, would depend upon the nature of the evidence — whether it was written and documentary merely, or oral. If the evidence was of the former character only, the finding of the Judge may be reviewed as any other question; if his decision is dependent upon the latter, it is of equal weight with the verdict of a jury.
In the present cage much of the evidence was given by wit[290]*290nesses in open Court, and so far as the Judge found upon such testimony, his decision should not be disturbed, for it may have greatly depended upon the demeanor of the witnesses while on the stand. It will be observed, however, that the Judge did not find as a matter of fact that Charles Brown was a bona fide purchaser. He seems purposely to have avoided such a conclusion. He simply finds certain facts, from which he concludes as matter of law, “ that Charles Brown is a bona fide purchaser for a valuable consideration and without notice of the existence of said unrecorded deed, and as such purchaser is entitled to hold and own said premises discharged from Plaintiff’s mortgage.”
We do not think this conclusion of law follows the facts, found.
It appears that Eben Swan, the common source of title to the parties, had conveyed the premises in question to Bonham, April Y, 185Y. That afterwards, on the same day, Bonham mortgaged to the Plaintiff, and after the mortgage was duly recorded, conveyed to Baldwin Brown on the 9th of April, 185Y, who immediately entered into and held possession of the premises under this deed, up to July 2Yth, 1859, when he conveyed the same by deed of general warranty to his brother Charles Brown, who was then, and had been for several years residing in his family. That at the time Bonham conveyed to Baldwin Brown, he delivered to him the deed from Swan, which, however, has never been recorded, and said Baldwin still retains or has destroyed it. That after remaining in possession nearly two years, under the deed from Bonham, which was on record, said Baldwin, on the 21th day of February, 1859, obtained a quit-claim deed from Swan of all his interest in the premises, for the consideration of one dollar as expressed in the deed, but for an actual consideration of an old account of about three dollars. This deed was recorded February 25th, 1859.
Charles Brown claims to be a bona fide purchaser for a valuable consideration, without notice of the unrecorded deed from Swan to Bonham, or of any title in Bonham, or of the Plaintiff’s mortgage, and he avers in his answer ££ that no such mortgage was on record, and that in his purchase he had relied. [291]*291entirely upon the record in the register’s office in relation to the title thereof, and had no notice or knowledge of any title except as the same appears of record in said register’s office.’^
The Judge found in substance the foregoing facts, and as to the conveyance to Charles Brown, “ that the nominal consideration mentioned in said deed is one thousand dollars, the actual consideration as sworn on the trial was two hundred dollars in cash, and the cancellation of notes against said Baldwin Brown to the amount of two hundred dollars. That there is no evidence that the Defendant Charles Brown had knowledge of the existence of the unrecorded deed from said Swan to the Defendant Bonham at the time he purchased the laud in question. Nor that he had any knowlege of the state of the title thereof, except the records in the office of the Kegister of Deeds of the county.” Erom the language here used by the learned Judge, we are oC opinion that he did not intend to find affirmatively that this deed was upon a valuable consideration, or that Charles Brown was in fact ignorant of the existence of the unrecorded deed, or the state of the title. He merely states what was sworn to bé the consideration, and finds that there is no evidence of a want of consideration, and that Charles Brown is not shown in fact to have had knowledge of the unrecorded deed and state of the title, except as shown by the records. Indeed we do not think the proof would justify him in going farther.
But, although the deed may have been given for a valuable consideration, and the purchaser may not in fact have known of the unrecorded deed, yet if he had notice of any facts which should have put him upon an inquiry, that upon investigation would have led to a knowledge of the outstanding title, he cannot be deemed a bona fide purchaser.
What are the facts which came to the purchaser’s knowledge in this case ? He was a brother of his grantor, and an inmate of his family during the time he was in possession of the premises. He must have known that his brother was not holding under the quit-claim deed from Swan to him, .for that was not made until February 21, 1859, and he had already been in possession since April, 1857. In addition, this deed did not purport to do more than quit-claim to the person in possession [292]*292the interest which Swan had in the premises, for the nominal consideration of one dollar only. We can hardly suppose that Charles Brown in fact believed that his brother derived title solely through this deed, or that Swan would convey an interest of any value for any such consideration. Swan does not pretend by this deed to convey'the land itself, but only such interest as he may have therein, and having previously conveyed all his interest, had in reality nothing to convey.
But it is claimed that under our statute such a deed operates as a conveyance to pass the estate, whether the releasee has a right therein or not, and that it must have the same effect as a deed of bargain and sale.
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Emmett, C. J.
By the Court. The defence assumed in the argument of this case, that the Judge below found as a matter of fact that Charles Brown was a Iona fide purchaser, for a valuable consideration, of the lands in question; and hence it is insisted that we should not disturb that finding, unless it is grossly against the weight of evidence; that where the facts of a case- are submitted to the Court, the decision of the Judge thereon is entitled to the same consideration as the verdict of a jury.
One great reason why Courts are loth to disturb the verdict of a jury upon a question of fact, is because the jury, having the advantage of witnessing the appearance and conduct of the witnesses on the stand, are better able to judge of the weight to be given to their testimony; and being equally competent to determine matters of fact with the Court, an appeal from their decision is equivalent to appealing from the judgment of twelve competent men, to the judgment of a less number, who are no better qualified to decide such questions, and have not the advantage of seeing the conduct of the witnesses while testifying. The same reasons operate in favor of the decision of a single judge upon a question of fact, from oral testimony taken before him. But where the fact depends Wholly upon written or documentary evidence,' there is no reason for the application of the rule, besides, as our Courts are constituted, such an appeal would be from the judgment of but one man to the judgment of three, upon the same evi" dence. Hence, in all chancery suits-under the old system, where witnesses were not examined in open Court, the decision of the Yice-Chancellor upon a question of fact submitted to him was reviewed upon appeal, with no more hesitation than his decisions upon questions of law. The weight, therefore, which we would feel disposed to give to the decision of a single Judge upon questions of fact, would depend upon the nature of the evidence — whether it was written and documentary merely, or oral. If the evidence was of the former character only, the finding of the Judge may be reviewed as any other question; if his decision is dependent upon the latter, it is of equal weight with the verdict of a jury.
In the present cage much of the evidence was given by wit[290]*290nesses in open Court, and so far as the Judge found upon such testimony, his decision should not be disturbed, for it may have greatly depended upon the demeanor of the witnesses while on the stand. It will be observed, however, that the Judge did not find as a matter of fact that Charles Brown was a bona fide purchaser. He seems purposely to have avoided such a conclusion. He simply finds certain facts, from which he concludes as matter of law, “ that Charles Brown is a bona fide purchaser for a valuable consideration and without notice of the existence of said unrecorded deed, and as such purchaser is entitled to hold and own said premises discharged from Plaintiff’s mortgage.”
We do not think this conclusion of law follows the facts, found.
It appears that Eben Swan, the common source of title to the parties, had conveyed the premises in question to Bonham, April Y, 185Y. That afterwards, on the same day, Bonham mortgaged to the Plaintiff, and after the mortgage was duly recorded, conveyed to Baldwin Brown on the 9th of April, 185Y, who immediately entered into and held possession of the premises under this deed, up to July 2Yth, 1859, when he conveyed the same by deed of general warranty to his brother Charles Brown, who was then, and had been for several years residing in his family. That at the time Bonham conveyed to Baldwin Brown, he delivered to him the deed from Swan, which, however, has never been recorded, and said Baldwin still retains or has destroyed it. That after remaining in possession nearly two years, under the deed from Bonham, which was on record, said Baldwin, on the 21th day of February, 1859, obtained a quit-claim deed from Swan of all his interest in the premises, for the consideration of one dollar as expressed in the deed, but for an actual consideration of an old account of about three dollars. This deed was recorded February 25th, 1859.
Charles Brown claims to be a bona fide purchaser for a valuable consideration, without notice of the unrecorded deed from Swan to Bonham, or of any title in Bonham, or of the Plaintiff’s mortgage, and he avers in his answer ££ that no such mortgage was on record, and that in his purchase he had relied. [291]*291entirely upon the record in the register’s office in relation to the title thereof, and had no notice or knowledge of any title except as the same appears of record in said register’s office.’^
The Judge found in substance the foregoing facts, and as to the conveyance to Charles Brown, “ that the nominal consideration mentioned in said deed is one thousand dollars, the actual consideration as sworn on the trial was two hundred dollars in cash, and the cancellation of notes against said Baldwin Brown to the amount of two hundred dollars. That there is no evidence that the Defendant Charles Brown had knowledge of the existence of the unrecorded deed from said Swan to the Defendant Bonham at the time he purchased the laud in question. Nor that he had any knowlege of the state of the title thereof, except the records in the office of the Kegister of Deeds of the county.” Erom the language here used by the learned Judge, we are oC opinion that he did not intend to find affirmatively that this deed was upon a valuable consideration, or that Charles Brown was in fact ignorant of the existence of the unrecorded deed, or the state of the title. He merely states what was sworn to bé the consideration, and finds that there is no evidence of a want of consideration, and that Charles Brown is not shown in fact to have had knowledge of the unrecorded deed and state of the title, except as shown by the records. Indeed we do not think the proof would justify him in going farther.
But, although the deed may have been given for a valuable consideration, and the purchaser may not in fact have known of the unrecorded deed, yet if he had notice of any facts which should have put him upon an inquiry, that upon investigation would have led to a knowledge of the outstanding title, he cannot be deemed a bona fide purchaser.
What are the facts which came to the purchaser’s knowledge in this case ? He was a brother of his grantor, and an inmate of his family during the time he was in possession of the premises. He must have known that his brother was not holding under the quit-claim deed from Swan to him, .for that was not made until February 21, 1859, and he had already been in possession since April, 1857. In addition, this deed did not purport to do more than quit-claim to the person in possession [292]*292the interest which Swan had in the premises, for the nominal consideration of one dollar only. We can hardly suppose that Charles Brown in fact believed that his brother derived title solely through this deed, or that Swan would convey an interest of any value for any such consideration. Swan does not pretend by this deed to convey'the land itself, but only such interest as he may have therein, and having previously conveyed all his interest, had in reality nothing to convey.
But it is claimed that under our statute such a deed operates as a conveyance to pass the estate, whether the releasee has a right therein or not, and that it must have the same effect as a deed of bargain and sale. The language of the statute is a little peculiar — it is as follows:
“ A deed of quit-claim and release, of the form in common use, shall be sufficient to pass all the estate which the grantor could lawfvlly convey by deed of bargain and sale.”
If the Legislature intended by the use of the term “ lawfully convey,” to limit the estate conveyed, to such as the grantor has a legal right to convey, then, as he may not lawfully convey land which he has already conveyed to another, but may release any real or fancied interest remaining in him, nothing passes beyond his actual interest at the time of the conveyance, whatever that may be. When, therefore, a person relies on a mere quit-claim of the interest which a party may have in property, he does so at his peril, and must see to it, that there is an interest to convey. He is presumed to Icnow what he is purchasing, and takes his own risk. Ordinarily a deed of quitclaim and release, presupposes in the releasee an interest distinct from that released. There is no presumption therefore that the title is derived solely from such a deed — certainly none, where, in a case like the present, a person not in possession or claiming title, quit claims to one in possession.
Again, the Defendant avers in his answer, that he was guided by the records in the Register’s office, and that the Blaintiff’s mortgage was not on record, thereby admitting that he had examined the records. Had that examination been as thorough as it should have been, he would have found the record of the mortgage to the Plaintiff, and of the deed from Bonham to Baldwin Brown, together with a bond for a deed [293]*293executed by Bonbam and Cobb, all showing that Baldwin in fact claimed title thr.ough Bonham. Whether he had actual knowledge of Bonham’s deed and bond, does not appear, but having searched the records, he was bound to know all that could be learned from them, even if the recording of these instruments was not of itself notice to all the world of their contents, and that Bonham claimed title to the land at the time of their execution. If he had actual notice of Bonham’s title, and that Baldwin claimed through him, he could not be called an innocent purchaser, and if the recording of these instruments is constructive notice only, the effect is the same. We think, however, that having examined the records, he is chargeable with actual notice of all they contain. They show that Bonham at one time claimed to own the land, and that Baldwin Brown claimed title through him. A knowledge of these facts would necessarily lead to an inquiry into Bonham’s source of title, and that inquiry pursued with ordinary diligence and prudence, would have led to the knowledge of the unrecorded deed from Swan to Bonham.
We are, therefore, of opinion that although Charles Brown may have, in fact, been ignorant of Bonham’s title, and the Plaintiff’s mortgage, which, however, we seriously doubt, yet the fact that his grantor was known by him to be in possession and claiming title for nearly two years prior to the date of the first quit claim deed from Swan to him — that this deed did not purport to convey the premises, but only Swan’s interest therein, and that, too, for the insignificant sum of one dollar — • and that the records- in the Begister’s office showing that Bonham had claimed title to the land, and had conveyed it to Baldwin, and which Charles admits he .had in fact examined, and been guided by, were sufficient to have put him upon an inquiry, which, if pursued with reasonable diligence, would have led to the knowledge oí the unrecorded deed from Swan to Bonham.
The facts found by the Judge, and admitted by the pleadings, do not, as we think, warrant the conclusion of law “that Charles Brown is.a ~bona fide purchaser for a valuable consideration, without notice of the unrecorded deed, and as such purchaser entitled to hold and own said premises, discharged' [294]*294of the Plaintiff’s mortgage, and that the Plaintiff is not entitled to a judgment of foreclosure, as against the Defendant, Charles Drown.”
The order denying a new trial is reversed, and a new trial awarded.