The Opinion of the Court was delivered by
Scates, J.
The history of the case, as shown by the facts and the record, is this: In May, 1836, the defendants here, together with twenty five others, all residents in Baltimore, Maryland, entered into articles of co-partnership, by the name of the “Baltimore and Western Land Association,” for the purpose of buying and selling, and speculating in lands in the State of Illinois and elsewhere, with a capital of $20,000. In the second article of the partnership agreement, they agree to employ an agent to visit the western States, and buy and sell land at his discretion, within the means furnished, taking the titles in his own name. He was to give bond and security for the performance of his duty; be subject to instructions from the treasurer of the Company; keep a journal of his doings, and make monthly returns thereof, and information. His expenses were to be borne out of the common fund, and he was to have one fourth of the net profits on sale, as a compensation, when the operation Avas finally concluded. Or, in case they dissolved within five years, the period of the partnership, or he should die before final settlement, he or his heirs might, at their option, take one fifth part of the lands upon a division. It was also agreed, that they might change the mode of doing business. Charles A. Warfield was appointed their agent, who made a purchase of the lands in controversy, among others, in his own name in 1836 and 1837, and with the Company’s funds. On the 11th day of March, 1840, Warfield conveyed these lands to three members of the Company, Dryden, Gosnell and Wood, the complainants below, in trust for the Company, according to the articles of co-partnership, Avhich was duly acknoAvledged on the same day, before the Mayor of Baltimore, and recorded in Madison county, Illinois, on the 20th day of December, 1840.
The plaintiff, Martin, sued out an attachment against War-field on the 14th day of July, 1840, and on the same day it was levied upon the lands in controversy. Warfield appeared and pleaded to the action, which was assumpsit, denying the debt. At the September term 1841, judgment was rendered for $1666-35, debt and cost, and on the 26th day of October, 1841, an execution issued on this judgment, under which these lands Avere sold to Martin.
This bill was filed by the defendants here, on behalf of themselves and the other members of the association, against Martin and Warfield, on the 6th day of September, 1841, charging that Martin had notice of Warfield’s agency in the purchase of these lands with the Company’s funds, and that he, Warfield, held them in'trust for them, at the time of issuing and levying the same, and that Warfield had no other interest than one fourth of the net profits. They aver that they sue on behalf of themselves and the other members of the Company, and pray that Martin may be enjoined from proceeding upon his attachment, and that all liens and incumbrances incident to, or growing out of it, upon and against these lands, may be removed and set aside.
Warfield answers, admitting every material charge in the bill, and charges that Martin had full notice and knowledge of all, before the attachment issued. Martin denies all notice and knowledge, in his answer. The cause was heard upon bill, answers, replication, exhibits and proofs. The Court found the facts as stated in this history, substantially, and that Martin purchased with full notice of defendants’ interest, and that of the company, and thereupon decreed the relief prayed.
The plaintiff, Martin, assigns for error:
First. In finding that he had notice of that interest at the date of his attachment and levy.
Second. In discharging his lien, acquired by the attachment, judgment and sale under it.
Third. In not decreeing that one fifth part was subject to the attachment.
Fourth. In not denying the relief, and in not dismissing the bill.
Fifth. Complainants below show no right to prosecute this suit.
Sixth. A general assignment.
The notice charged in the bill, and directly and positively denied in the answer, is not proved in this case. A direct and positive denial in the answer, responsive to an allegation in the bill must be controverted by two witnesses, or one witness, and strong corroborating circumstances, or by other proof equivalent. Here, there is but one witness, who pretends, with any certainty, to speak of a notice earlier than December, 1840. He speaks of conversations with Martin, and his recollection seems altogether confused as to the date, fixing a period of two years within which it may have taken place. The other witness seems to labor under a like confusion, or indistinctness of recollection, varying from the spring of 1840 to February, 1841; but seems strongly inclined to fix upon December, 1840, to February, 1841, as the period, within which the conversation took place. These vague recollections of the time when 'Martin should have admitted, in conversation, that he knew of the character of Warfield’s agency and interest in said lands, is by no means sufficient to contradict the answer positively denying notice, at the issuing and levying his attachment on the 14th of July, 1840.
There seems to be a total misapprehension of counsel, as to facts found by the Court below, on this branch of the case. The first error assigned is, that the Court erred in finding that Martin had this notice at the date and levy of the attachment; but the recital in the decree is, that Martin had that notice before he purchased.^ This latter fact, we think, is clearly established by the proofs. For the sale under the attachment was made in October, or November, 1841, which was after the latest period fixed by the two witnesses, as the time when the conversation occurred with them, in which Martin spoke of those facts as known to him. The Court below seems to have proceeded upon the ground, that notice, at any time before the purchase under the execution, would fix upon the transaction the character of a purchase with notice. The counsel, in assigning the error, proceed upon the ground, that the notice must relate to the date and levy of the attachment. Of this branch of the subject I will speak, when I come to notice the subject of an attachment becoming a lien, and in connection with our recording Acts.
It is insisted, that the answer of the co-defendant, War-field, under whom Martin claims, is evidence against Martin; and that Warfield admits notice expressly, and positively charges notice and a full knowledge upon Martin, before the date and levy of the attachment. The general rule is, that the answer of one defendant is not evidence against his co-defendant. 1 Greenl. Ev. §178; 3 Phil. Ev. 931, note 650. But it is laid down that the rule does not apply to cases, where the other defendant claims under him. 1 Greenl. Ev. §178. This doctrine is too general in its terms, as an exception to the general rule. Where he is nominally, and not substantially, a defendant;' where his interest is with theplaintiifs; their object, his object; where he, as well as the plaintiffs, is seeking to show that Martin acquired no lien, or rights under the attachment and proceedings at law; it shall not be in tiie power of the parties, in such a case, to avail themselves of the answer of Warfield, who appears in reality, though not in form, to be a plaintiff. 2 Cond. R. 290, 291. A better test to determine when such an answer would be evidence against a co-defendant claiming under him, or in the same right, as in case of partners, or successors, is an answer to the question, Would his admissions be evidence? Wherever the latter would be admissible, a fortiori, would his answer. 3 Phil. Ev. 930, note 648; 1 Greenl. Ev. §178; 2 Cond. R. 293, note; 1 Gall. 630. The plaintiffs below claim as partners of the defendant, Warfield, and could not offer his admissions, deposition, or answer, therefore, as evidence in this case against the plaintiff, Martin, who is seeking to sustain the proceedings subjecting his interest to a payment of a just debt. This answer will not, therefore, avail them as evidence to prove notice to Martin.
The next question I will notice is the one on the fifth assignment of error. The objection is for want of proper parties, plaintiffs. It is insisted that all the members of the firm ought to become plaintiffs. This is the general rule in equity, that all persons in interest should join as plaintiffs, or be made defendants. Story’s Eq. Pl. § 72. It is said that advantage may be taken of a want of proper parties, by demurrer to the bill, or at the hearing, or upon re-hearing, or upon appeal. Ibid. § 75. Admitting that the question is raised in due time, I come to consider the exceptions to the general rule. Judge Story lays it down as an exception, where the . parties form a voluntary association, for public or private purposes, and those who sue or defend, may fairly be presumed to represent the rights and interests of the whole. Ibid. §§ 97, 107 to 115 inclusive. I am of opinion, that the plaintiffs below fall within this exception to the general rule. Here is a private association of some twenty eight individuals for the purpose of trade. The whole legal interest pf the partnership in the subject matter of this suit has been transferred by deed to these complainants, who sue on behalf of the whole. The whole legal and equitable interest of the parties in the subject matter of this controversy, is fully represented by the complainants below, and a decree in the premises will bind all the members of the association.
Again, it is urged that this is a bill of discovery; that where the question is purely cognizable in a Court of Law, but depending upon a discovery, the latter will give a Court of Equity jurisdiction; and, upon obtaining the discovery, Equity, having acquired jurisdiction, will retain the cause, and proceed and give full.relief without driving the party to a Court of Law. But if the discovery is not obtained, the jurisdiction fails, and it cannot proceed; but must dismiss the parties to seek a remedy in a Court of Law. These principles are correct, but they have no application to this case, as I do not regard it in any point of view as a bill of discovery. It is true, the parties might try the strength of their legal titles in a suit at law; but, by the bill, the complainants seek to remove all liens and incumbrances, if any, created by the attachment proceeding, and so, to quiet their title by a decree that it is a prior and better equity and legal estate. The Court, therefore, has jurisdiction. ,
The remaining errors assigned, I shall consider together. The only two questions of importance involved are, whether .an attachment levied upon land, and afterwards pursued to judgment, execution and sale under it, is alien upon the land from the date of the levy; and if so, whether it will take priority over, and defeat a prior unrecorded deed, executed by the defendant in the attachment, who held the legal estate as trustee, but without notice to the attaching creditor of the .trust, or conveyance, until after the levy of the attachment.
But before I proceed to the consideration of these questions, I will notice another ground, urged by the defend anti here, and which is, that by the appearance and plea by War-field, in the attachment suit, the property levied on was discharged from the attachment. For this effect, reliance is had upon the 29th section of the attachment law, (R. L. 93; Gale’s Stat. 72,) which authorizes the defendant to appear and plead without giving bail, or entering into bond. But the same section further provides, that if defendant desires to replevy, he shall execute bond and security, that the property and credits attached shall be produced and delivered, subject to the judgment, and in that case, the attachment shall be dissolved; or a bond, that he will pay the amount of the judgment and cost, within ninety days after its rendition, will in like manner dissolve it. The eighth section directs the officer serving the attachment to take the property attached into his possession; and declares that the estate and property,so attached shall remain in the care and safe keeping of the officer to answer and abide the judgment; unless bond and security be given to the officer, that the property and estate shall be forthcoming to answer the judgment. The ninth section provides, that when the defendant replevies, by giving bond and security, the officer shall return the bond; and if it be held insufficient, the sheriff shall be liable to the plaintiff for debt, interest and cost, and may have his remedy on the bond. The tenth section imposes a like liability upon the sheriff, in case he neglects to take a bond, when he ought to have done so; or shall fail to return one, upon a rule entered against him. The twelfth section provides how notice of the pendency of the suit shall be published; and if the defendant shall appear, put in sufficient bail, and plead, his estate shall be liberated and all garnishees discharged. The thirteenth section provides, that if there be no replevy, and judgment be rendered, the estate so attached may be sold upon an execution. The fifteenth section makes the garnishee liable for .all that may be in his hands, .at the time of the service of the attachment upon him.
I have set out the substance of these several provisions, not only to show that the property attached is deemed and required to be in the custody of the law, unless replevied, to answer and satisfy the judgment, and notwithstanding an appearance and plea without bail; but also, because they contain the provisions relative to the question of a lien.
This is a proceeding in rem, and by constructive notice. Without a levy of the attachment, or the service of a garnishee, the Court has no jurisdiction to proceed, by publication of notice, to render any judgment. But, by the seizure of any estate or property of the defendant, or the service by garnishment upon any having estate, property, or effects of his m their hands, the law has laid hold of a fund, which it may condemn, and appropriate to the satisfaction of whatever judgment it may render against the defendant, and thereupon the Court proceeds to hear as to the indebtedness. By the tenth section of the Act, any other persons than the defendant, claiming the property may interplead without giving bail, but the property shall not thereby be replevied. The Court may immediately direct a jury to be called, to inquire into the right of property, and I apprehend that, should all the property attached, turn out to belong to such claimant, the Court would have no jurisdiction to proceed to judgment against the defendant, unless there were a service upon a garnishee; and not even then, if, upon trial, he should be found not indebted, and having no property in his hands. So essentially, then, in my opinion, does the jurisdiction and power of the Court, in this proceeding, depend upon having property, or effects of defendant under its control, that it cannot proceed without it. Having once seized them, it will not part with their control without bond and security,, that its judgment shall be satisfied, notwithstanding defendant may put his person within its jurisdiction. Wherefore, all these safeguards to secure it; these strict liabilities of the sheriff to keep and have it forthcoming; and declaring it subject to satisfy the judgment of the Court, if the defendant may at any time before trial, simply by appearance and plea, dissolve the attachment, and discharge the property? If this should be the effect, the plaintiff would be in a worse condition after having taken property thus to secure himself, than if he had commenced by capias against the person, for it would now be too late to take the person. Such is not the meaning of these provisions, nor the effect of an appearance and plea.
These remarks and views apply also to the question of lien. This specific appropriation of property must amount to something as to those who may deal in relation to it; else the defendant could, at any time before judgment, defeat the object of the party by a sale, and possibly, even the jurisdiction of the Court. We are of opinion, that the attachment is a lien from the date of the levy, when followed by a judgment, and which will have relation back to it. This doctrine is sanctioned by numerous authorities, which I will not review. Coffin v. Ray, 1 Metc. 212; McMechan v. Griffing, 3 Pick. 149; Tyrrel's Heirs v. Rountree, 7 Peters, 464; Goodwin v. Richardson, 11 Mass. 475; Van Loan v. Kline, 10 Johns. 129; Penney v. Little, 3 Scam. 305, 306; Cushing v. Hurd, 4 Pick. 253; United States v. Canal Bank, 7 Law Reporter, 87; Downer v. Brackett, 5 do. 393; Haughton v. Eustis, Ibid. 505.
I come now to speak of the recording Acts in their application to defendants’ deed from Warfield. There are several on this subject, extending through a period of ten years in their enactment, and embracing in their provisions, grants, bargains, sales, leases, releases, mortgages, defeasances, conveyances, bonds, contracts, or agreements concerning lands, tenements, or hereditaments, whereby the same may be affected in law or equity. Gale’s Stat. 132, § 15. Powers of attorney, or agency, for making or acknowledging the same. Ib. § 16. Assignments of Auditor’s certificates of sales of land for taxes. Ib. 155, § 2. Assignments of certificates of purchase of school lands. Ib. 156, § 1. Sheriff’s deeds of land sold on execution. Ib. 157, § 1. And all deeds, and title papers, of whatever description, for land. Ib. 663, § 2; all of which shall be recorded. They shall be recorded in the order of time in which they are brought into the recorder’s office for that purpose. Ib. 556, §7. They shall be deemed notice to all subsequent purchasers and creditors, from the date of their recording, whether acknowledged or not. Ib. ^ 157, § 1. And they shall be in force, and take effect from and after the time of filing the same for record, and not before, as to all creditors, and subsequent bona fide purchasers*, and mortgagees, without notice; and as to them, all such deeds and title papers, shall be adjudged void, until the same shall be filed for record in the county where the land may lie. Ib. 664, §5; Ib. 152, § 15.
The mischief intended to be provided against,-is, not only the protection of honest purchasers, and mortgage incumbrancers, from imposition by secret and unknown conveyances and incumbrances," but also, for the protection of creditors, who, in giving credit, confide as much, and rely as confidently for the payment of their dues, upon the real estate to which their debtors appear, by the records, to have title, as upon the personalty in their actual possession; for by our Iaws¡ the realty is, equally with the personalty, liable to the payment of debts. The facilities for ascertaining who is owner, and upon that apparent ownership, determining who is entitled to credit, are not the only provisions for the protection of purchasers and creditors. It is declared to be an offence, and punished by confinement in the penitentiary, for one, without due authority, by personating another, to acknowledge or confess any fine, common recovery, deed, bond, power of attorney, mortgage, recognizance, bail or judgment, or to procure it to be done. Gale’s Stat. 215, § 91. So, it is punishable by fine, if one become a party to any fraudulent conveyance of lands or goods, or become a party to any bond, suit, judgment, execution, contract or conveyance, with intent to defraud or deceive others, or to defeat, hinder or delay creditors, or others, of their just debts, damages, or demands. Ib. 225, § 141. So, in like manner, it is punishable by confinement in the penitentiary, to fraudulently sell) or make any contract to sell or barter lands or town lots, a second time, for valuable consideration, having sold them before. Ib. 226, § 144. These provisions are additional safeguards around the title, to protect purchasers from fraudulent second sales, overreaching their unrecorded deeds; and creditors, from the fraudulent withdrawal, or incumbering their apparent fund. Creditors are a new class of persons introduced within the protection of the recording Acts, and We are bound to extend to them the benefit of that protection. But while we do so, we should be careful, and so apply the principles of law, as not to do greater mischief to purchasers and mortgagees, than benefit to creditors. To prevent it, .it is all important to' determine who are creditors, within the meaning of the recording Acts; If all are creditors, to whom the vendor, at the time of conveyance, is indebted, then indeed, might a slumbering creditor, years after an innocent purchaser had paid his money, taken possession, and perhaps expended much in improvements, by judgment and execution, upon his previously existing demand, overreach his title. This: interpretation of creditors would do irreparable mischief, as purchasers have no sufficient and protective means of knowing to- whom their vendor is indebted. This is inadmissible, being calculated to do more mischief than the recording Acts would otherwise prevent. Again, coming one step, nearer; if all are creditors' who have commenced an action for the recovery of a debt, insurmountable difficulties would be thrown in the way of selling and conveying land, as purchasers, &c., must first search the records of the various Courts for pending suits; and, when found, await the issue,“to see if the vendor is condemned to a debt. This is also impracticable, and therefore inadmissible, as the meaning of the legislature, in using the word “creditorAgain, on the other hand, if none are creditors until they obtain judgment, execution, and make sale, and have the sheriff’s deed recorded, then indeed, the term “creditor” has no meaning at all in that Act, for the debtor might even evade such a creditor, by an intermediate conveyance.
In Kentucky, it seems to me, the Count has approached the former extreme, in allowing a creditor, who obtained judgment in 1825, to overreach a deed recorded in 1820, which was intended as a mortgage, although absolute on its face; and where they do not put it upon the ground of fraud, or mention any particular statutory provision. Graham v. Samuel, 1 Dana, 166. And again, that neither the creditor, nor a purchaser under his execution, would be affected by notice of an unrecorded deed. Helm v. Logan's Heirs, 4 Bibb, 78. Unless these decisions be put upon the peculiar phraseology, or provisions of their statute, they seem to me to go too far.
In New York, the Courts in several cases, seem to incline to the other extreme. In one case, it was held that a purchaser of a mortgagor,, on a consideration of an existing debt, and without notice of the prior unrecorded mortgage, was not entitled to priority, unless he advanced some new consideration, other than the old debt. Dickerson v. Tillinghast, 4 Paige, 220. There is a dictum in Jackson v. Chamberlain, 8 Wend. 620, to the effect that the purchaser under the execution must have his deed recorded before the grantee of the judgment debtor, although he purchase without notice. The question, did not arise in the case, as the deed under consideration was made before the registry Acts. But the doctrine'is again laid down by the Court in Jackson v. Post, 15 Wend. 588, where a more liberal doctrine is adopted,, but still, in this point of view, too narrow for our statute. In this last case, the Court treat an actual notice as sufficient, although the deed is unrecorded. Considering the object of the recording Acts- to be intended as. notice only, unless, the language of the Act forbids, it is a sounder principle than that laid down in Kentucky. But in this case, the doctrine of' actual notice has been carried too far;: so. far as to overreach,, in effect, an innocent purchaser without notice, and so deny any protection under the statute. The fact did not appear in. the record, that the purchaser under the execution had actual notice; but the deed ©f the previous grantee of the judgment debtor was recorded, before any conveyance was made-by the purchaser under the execution, and it was- held, that, the subsequent purchasers of the execution purchaser had,, by that means, notice to put them upon inquiry, by which they would, have found that the estate had passed out of the judgment debtor; before the sale on the execution. Now, if one purchaser, without,notice,, and all subsequent purchasers of his title are not protected under, and shielded by his want of notice, although they may have it, at the time of their subsequent purchase, then indeed, as I think, the first purchaser without notice would not be protected, as he would be liable on his covenant of title to his vendee, and so virtually lose his title. In Jackson v. Terry, 13 Johns. 471, the Court put the priority of right upon the priority of recording of a sheriff’s deed made on a sale under execution, as between the purchaser and mortgagee, the language of their statute being, that no mortgage, nor any deed, conveyance or writing in the nature of a mortgage shall defeat or prejudice the title or interest of any bona fide purchaser, unless the same shall have been duly registered. The judgment there is a lien from the time of filing the record of judgment. Waterman v. Haskin, 11 Johns. 230. Still, the priority is to be gained by priority of registering of sheriff’s deed, as to constructive notice; but may still be defeated by actual notice, without registering. Jackson v. Chamberlain, 8 Wend. 628, 627; Same v. Terry, 13 Johns. 471; Same v. Post, 15 Wend. 594; Tuttle v. Jackson, 6 Wend. 226. This much will suffice to show the rules applied by the New York Courts. But I apprehend they would not be, in some respects, a safe exposition of our statute, nor do I think the Kentucky rule would be any better.
The safest and best rule is laid down in Massachusetts, and the application of that rule would, in my judgment, best answer the inquiry, Who is a creditor, in the meaning of our recording Acts? He is one who, without actual or constructive notice of a prior conveyance or incumbrance, institutes such proceedings, or takes such steps, as effect a lien, on the land, before the recording of such conveyance or incumbrance, whether the debt be prior or subsequent to them, and whether the vendor, at the time of conveying or incumbering, had other property sufficient to pay the debt or not. This interpretation of the statute will give meaning and efficacy to the term “ creditors;” and while it would protect them to the same extent as others, it will prevent the irreparable mischief of allowing unknown and undiscoverable debts from overreaching the innocent, bona fide purchaser. Again, on the other hand, if none are “ creditors ” until they have obtained judgment, execution, and recorded the sheriff’s deed, the statute would afford very little protection, as they might be constantly anticipated, and defeated. If none are “ creditors,” who, subsequent to the conveyance, give credit upon the fair title on the records, and open possession of the property, many would be deceived and defrauded, upon finding the fund to which they looked, secretly in the ownership of another. If none were creditors but those who made advances subsequent to the conveyance, &c., no one would know when to suspend his credits, for fear of a junior conveyance cutting off the merit of his consideration and claim.
None of these various constructions would be a just and convenient rule, except the one I have proposed. It seems to me to accord well with justice to creditors, and the doctrine of liens. The title, when perfected by sale on the execution, and recording of the sheriff’s deed, will have relation back to the levy of the attachment, or rendition of the judgment, or both, in suits by attachment. An attaching creditor, therefore, who levies his attachment without notice of the prior deed, either actual or constructive, acquires a lien, which, if perfected by judgment, execution, sale and deed, will hold the legal estate, as against the purchaser in the prior unrecorded r deed. Cushing v. Hurd, 4 Pick. 252; McMechan v. Griffing, 3 do. 149; Coffin v. Ray, 1 Metc. 212; Sigourney v. Larned, 10 Pick. 72; Tyrrel’s Heirs v. Rountree, 7 Peters, 464; Goodwin v. Richardson, 11 Mass. 475. And that, too, although at the time of the levy of his execution, and sale, he had notice of the deed. Coffin v. Ray, 1 Metc. 214.
In the case before us, Warfield was the legal owner, by purchase from the Government, of the fee. But there was, according to the terms of the association, a resulting trust, in equity, to the defendants and their associates. Neither the power of attorney, if any, nor the deed to the association, were recorded to inform creditors or purchasers of Warfield, of the true interest. He was the ostensible, legal owner, and as such, strangers had a right to deal with him, until notified of the resulting trust. It is a fair and legal presumption, that Martin dealt with, and credited him, upon the faith, that these lands were his, and would be liable to the payment of his debt; and to make them available, sued out and levied his attachment, without notice, that Warfield had pre-conveyed the lands to the defendants. They then, notify him of their deed, by recording it, and seek by bill, to enjoin further proceedings to perfect his lien, and acquire title. But we are of opinion, that it is too late. Whatever he had acquired as an innocent creditor without notice, he had a right to perfect and secure to himself, notwithstanding the subsequent notice; for the statute has declared all such conveyances void as to creditors without notice, until the filing for record. So that, the deed being void as to him, he could, in no wise, be made to lose the benefit of his lien, upon the supposition, or principle, that the title and estate had passed out of Warfield at the time of levy. We impute no fraud or wrong, to any party concerned, but the defendants must take the fruits of their negligence in not recording their deed, so as to prevent imposition, however innocent they might be, upon others. I would simply remark further, that the case in 2 Scam. 499, arose, and was decided upon different provisions than those upon which we base this decision.
The decree of the Circuit Court will be reversed with costs, and the complainants’ bill be dismissed, and defendant, Martin, will recover his costs.
Decree reversed.
Caton, J. said: Being interested in one of the important questions decided in the case, I have thought proper to take no part in the deliberations, or decision of this case.