Reed v. Heirs of Austin

9 Mo. 713

Opinion

Scott, J.,

delivered the opinion of the court.

Austin brought an action of ejectment against Reed, to obtain possession of lands in the declaration mentioned, and recovered judgment.

Austin derived title to the premises in controversy, under judgment of the circuit court, dated 3d of April, 1839, and justices’ judgments docketed 22d May, 1839. Executions issued on these judgments, by virtue of which the land was sold on the 5th August, 1839, for which a deed was afterwards executed by the sheriff to the plaintiff.

David Reed set up a title in himself and others as the Reedsburg Company, which consisted of a deed dated 24th of April, 1839, but not recorded until the 16th September following; and offered to prove that the purchaser of the land at the sheriff’s sale had notice, at the time he purchased, of the unrecorded deed to the Reedsburg Company; to which evidence objections being made, the court excluded it from the consideration of the jury.

The defendant also offered to prove that the lands in the sheriff’s deed mentioned were sold separately; and that the first tract sold brought a sum sufficient to satisfy the eight executions issued from the circuit court, and which it appeare from the recitals in the sheriff’s deed were alone levied on the lands, and consequently that the sale of the other tract to satisfy the other executions which had not been levied, was without authority and void.

The point involved in this cause, whether a judgment creditor is not preferred to a grantee, under a prior unregistered conveyance, has been under consideration in this court in cases heretofore determined. It has been again argued, and we are called upon to say whether the views heretofore expressed shall be maintained or abandoned.

In the consideration of questions involving the construction of statutes in relation to the same matter, when there has obviously been a departure from the phraseology of an old law in the enactment of a new one, we are compelled to believe that it was not done without reason. The first statute to which our attention has been called as throwing light upon this subject, is that of the 27th Hen. 8th, which declared that no estate should pass by bargain and sale, unless enrolled in six months. It was held under this statute, that the deed is valid except as to subsequent pui chasers without notice. The reason of this decision is plain. It was the object of the law to remedy the mischief growing out of the secret conveyances authorized by the Statute of Uses, which being unknown to the common law, produced inconveniences to those who afterwards purchased the estate, without knowledge of such prior deeds. But if the subsequent purchaser had notice of the previous conveyance, the reason for passing the statute did not apply. It would require great ingenuity to give to these cases a shape which could throw light upon that now under consideration. They decide nothing as to creditors, and they depend upon the peculiar circumstances which produced the law upon which they are founded.

We think we are well warranted in saying that the idea of registering deeds was borrowed from the English statute, 2d and 3d of Anne, cap. 4, which expressly made in the place therein mentioned, all unregistered deeds fraudulent and void against subsequent purchasers and mortgagees for a valuable consideration. The statute of New York, in relation to the registry of deeds, has adopted the phraseology of the English law, and makes unregistered deeds void against subsequent purchasers and mortgagees in good faith and for a valuable consideration.

The interpretation put upon the English statute is well settled, and a mortgage not registered has preference over a subsequent docketed judgment. Hez’e then is a statute which has been in force nearly a century and a half; it has been judicially liquidated; its construction is fixed and settled. Why should the legislature of this, State, abandon ing in this instance the caution and prudence manifested on so many other occasions, in refusing to depart from the language of the English statutes, when incorporating them into our code, adopt a new mode of expression in relation to the registry of deeds, if it were intended that the precise interpretation should be put upon it, and it should have nó other scope or aim than the English statute? We cannot believe that the legislature adopted so unusual a course without design. That a statute, whose language and construction was as familiar as household words, has been dropped, and other language adopted, when the only purpose was to obtain the end sought by the old statute, is an assumption so much at war with our experience on this subject, that we are compelled to disclaim it.

Our statute avoids all unregistered conveyances, except between the parties thereto and such as have actual notice thereof. No doubt is entertained that an unregistered deed will prevail over a subsequent purchaser or mortgagee with notice. But the question is, whether it goes farther and affects a creditor without notice. A similar statute prevails in Massachusetts. In that State suits are commenced by an original writ, and an attachment against the estate of the debtor which is held as security for the debt. Under that statute it is held that an attaching creditor, without notice at the time of his attachment, will be preferred to a grantee under an unregistered conveyance. Our mode of procedure in bringing suits, in the end attains the same results as that produced in Massachusetts, but in inverso ordine. There the lien commences with the service of the attachment; here it commences with the determination of a suit. A creditor is not passive in commencing his suit; he looks to the lien of his judgment as a security, and con , fessions of judgment are taken with an eye to the security of the lien conferred by the law on judgments. There is a difference between the lien of a judgment under our laws, and that created by the 13th Ed. 1st. That statute does notin direct terms create the lien. But courts have so construed the statute which gave the elegit, as to infer a lien from the power to take the lands in execution. The lien grows out of the right to issue the elegit, and is dependent upon it. A judgment with a stay of execution creates no lien on land, until the plaintiff has a right to issue execution thereon; Scriba et al. vs. Deanes et al., 1 Brocken-brough. Our statute in express terms makes the judgment a lien, and continues in force for three years, and permits its indefinite extension, by scire facias, from time to time. The sale of land under a junior judgment or decree, passes the title of the defendant, subject to the lien of all prior judgments and decrees then in force. Liens cannot be said to come involuntarily when suits are brought to obtain them. Nothing is more usual than to obtain judgments in justices’ courts, and file transcripts in the circuit court, with a view to obtain the security of the lien of a judgment; and creditors do not imagine that a right thus secured could be affected by notice of an unregistered deed at the time of the sale of the lands, subjected to these liens. It is begging the question to say that a judgment is only a lien on lands possessed by the debtor at the time of its rendition, and cannot be made to extend to lands that have been conveyed. Whether they have been conveyed as regards the judgment creditor, is the very matter in controversy. Chancellor Kent, speaking of the rule which prevails in Pennsylvania, in which a docketed judgment is preferred to an unregistered conveyance, commends it for its simplicity and certainty in making every encumbrance whether it be a registered deed or a docketed judgment, in eases free from fraud, depend for satisfaction according to the priority of the lien upon the record, which is open for public inspection. And even if it should be, as has been said, that such is not the law of Pennsylvania, yet we may claim in support of the doctrine, the commendation of that jurist, to whom the professi&n is so much indebted, and whose industry has explored, and whose learning has adorned so many branches of our law. No decision of this court has gone farther than the principles above expressed; nor is it necessary that we should go beyond it in determining this case. To some extent the impression prevails that such is the law. The case of Jones vs. Luck, 7 Mo. Rep., which in its circumstances is so much like the case of Cushing vs. Hurd, 4 Pick., a case in Massachusetts, whose statute we have seen, is similar to ours, is an evidence of this. It is of no great importance how this question is settled, but it is of some concern that the law on the subject should he fixed and settled. No good can result from changing the interpretation of our statute. Indeed we may pause and reflect how far under the circumstances we would be warranted in making it. As far back as the year 1835, this court determined that a title under a junior judgment would prevail over a prior unregistered deed. The same principle was involved in the case of Jones vs. Luck, and yet the question wa's not made in the court below. And afterwards came the case of Hill vs. Paul, 8 Mo. Rep., in which the very point involved was determined. In this state of the question, our statutes underwent a revision : the construction put upon the law is reported to the general assembly, and they adhere to the law as it had been before written. They saw no departure from policy or principle in the course of the decisions of the court; or at least none which provoked their interference. Indeed some of the soundest jurists regret the construction that has been put upon the registry act by the English and American courts, and openly avow their preference for the doctrine, that the priority of every instrument affecting real estate shall be determined by the date of its record. Cruise says the utility of the register acts is proved to a demonstration by two facts, namely: that lands in register counties bear .a higher price, and money is lent on the security of those lands at a lower rate of interest, than on estates situate in counties where there is no register; and he continues, it would be a great amendment of the law, if it were enacted by the legislature, that no averment should be admitted either at law or in equity, that a person claiming under a deed that was registered, had notice of a prior unregistered deed. “We might,” he says, “in this case borrow some wisdom from ancient France, where several points respecting substitutions being unsettled, and the laws on this head being different, in different parts of that kingdom, they were all reduced into one by the ordinance of 1747, which was framed by the Chancellor D’Aguesseau, after taking the sentiments of every parliament in the kingdom, upon forty-five different questions proposed to them upon the subject. The 39th question is whether a creditor or purchaser, having notice of the substitution before his contract, a purchaser is to be admitted to plead the want of registration.” All the parliaments, except that of Flanders, agreed that he was. That to admit the contrary doctrine would make it always open to argument, whether he had or had not notice of the substitution. That this would lead to endless uncertainty, confusion and perjury; and that it was much better that the rights of the subject should depend upon certain and. fixed principles of law, than upon rules and constructions of equity, which must be arbitrary and consequently uncertain. The ordinance was framed accordingly.

Our statute relative to the registry of deeds, fixes no time within which they must be recorded. They must then be put, upon the record in a reasonable time; Cushing vs. Heard. 4 Pick. 257. Prudence would dictate this. Urgent considerations alone should influence us to put a construction upon our registry law, which would enable a purchaser to hold a deed for land in his pocket, and suffer his grantor to contract debts on the faith of that land to which he has no title. Prudent men examine the records, to ascertain if there are encumbrances on the estates of their debtors, and if they find none they imagine themselves secure, and will extend the credit, and refrain from steps to make hemselves safe.

As to the question arising on the evidence to show that the property was sold in parcels, and that one parcel sold for a sum sufficient to satisfy the eight executions, which alone were levied on the lands, it may he remarked, that it has been made a question whether a sale under a satisfied judgment, is void or only voidable. But it seems well settled, that it can only be void against him who purchases with notice of the fact and in bad faith; Jackson vs. Anderson, 4 Wendall, 474; Jackson vs. Cadwell, 1 Cowen, 622. The principle of these cases wouldrestrain the court from interfering with the judgment, independently of the doctrine of the cases of Jackson vs. Roberts, 7 Wendall, 83; Jackson vs. Vanderbeyden, 17 John. Rep. 167; Jackson vs. Sternberg, 20 John. Rep. 49, which is, that evidence is inadmissible to contradict the recitals in a sheriffs deed in a collateral proceeding; but that irregularities in conducting a sale, must be corrected by direct application to the court for that purpose.

Judge Napton concurring, the judgment will be affirmed. McBeide, Judge, dissenting.