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The question presented in this case is strictly one of legal title. The plaintiff deduced a good paper title from William Helm, who is admitted to have been the owner in fee of the premises, unless one or more of the objections interposed by the defendant to the evidence are well taken.
First. The deed from Fitzhugh was not acknowledged, and there was no subscribing witness to it, and consequently it had never been recorded. It is urged that this defect rendered it void. (1R.S., 738, § 137.) It was, however, effectual to transfer title as between the parties to it. It would be invalid, as against a subsequent purchaser from or an incumbrancer under Helm. But the defendant does not occupy such a position.
Second. The plaintiff claims to have acquired the title of Smith, by means of a proceeding under the statute, respecting non-resident debtors, and the regularity of that proceeding is questioned. The plaintiff proved the application and oath of witnesses required by the statute, the order for the publication of notice to creditors, and the fact of such publication. (2R.S., 2, §§ 2 to 6.) He also gave in evidence the appointment of trustees, and proved that they took the oath prescribed by the statute. The first mentioned papers were sufficient to show jurisdiction in the officer, and the
act declares that the trustees taking such oath shall be deemed vested with all the estate, real and personal, of the debtor, from the first publication of the notice to him. (1 R.S., 41, § 6.) It is also declared that the appointment of trustees shall be conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor, and that the said appointment and all the proceedings previous thereto were regular. (Id., 13, § 62.) It has been held that this language must be qualified by a condition that the case is one in which the officer had acquired jurisdiction. (Van Alstyne v.Erwine, 1 Kern., 331, and cases cited.) Jurisdiction being shown in this case, we are bound to hold that the appointment of trustees furnishes conclusive, that is, incontrovertible evidence, that all the other proceedings were in accordance with the statute, and that all the property of which the debtor was seized and possessed at the time of the first publication of the notice, was by operation of law vested in the trustees. It was the duty of the trustees to have caused their appointment to be recorded within one month after it was made, and this duty they neglected to perform until nearly three months after the time it should have been done. But the object of this provision was simply to perpetuate the evidence of the transaction, and it cannot be pretended that an omission in this respect would divest the title which had thus been acquired, and render the whole proceeding nugatory. The original appointment of trustees was given in evidence; and should it be held that a record made out of time would not be evidence, it would not affect the validity of the original document. The same remark may be made respecting the report of the judge. If the officer had failed altogether in performing this duty, it would not divest the title of the trustees. (Chautauque Bank v. Risley, 4 Denio, 484.)
Third. The defendant's counsel insists that it was incumbent upon the plaintiff to prove the fact of a sale by the trustees to himself. The trustees being clothed with the
title to the land, any conveyance by them which would, by the common law, pass the title, would be effectual wherever the question of title should arise collaterally. The rule would be different, if they had possessed only a power to sell and convey the premises, for in such cases all the formalities required by law must, in general, be observed, or nothing is effected. In this case the premises were shown to have been advertised for sale for the period required by the statute, and the conveyance set forth that due notice of the sale had been given, and that the plaintiff became the purchaser upon a sale at auction. We do not say that the recitals are evidence; but if it were essential to the validity of the conveyance that the purchase should have been made at auction, we are of opinion that the presumption of the due performance of official duty would be prima facie
sufficient to show that it had been done. Where a levy is necessary, in order to give a sheriff authority to sell real estate, the court will presume it to have been made where it is found that he has sold and conveyed the land. (Jackson v.Shaffer, 11 John., 513.) I am of opinion that the plaintiff made out a prima facie case, showing title in himself.
The defendant attempted to show title out of the plaintiff and in Z.A. Leland, under whom he entered and cut the timber. The most favorable view for the defendant which can be taken of the instrument given in evidence by him, is to consider it a conveyance of an undivided half of all Helm's property, and an equitable mortgage of the other half, to secure any future advances which Leland and Skinner might see fit to make. It would clearly be a conveyance of an undivided moiety of Helm's property, but for the want of a consideration. But no consideration was expressed in the paper, and none was proved outside of it. Leland and Skinner did not undertake to advance anything. They did not execute the deed, and there are no expressions in it by which they were bound to do anything in consequence
of their acceptance of it, or which would have amounted to a covenant on their part if they had executed it; and there was no collateral agreement, verbal or written, by which they undertook to advance anything to Helm, or to do anything for him. If the deed had any operation, it was by way of bargain and sale, under the statute of uses. No livery of seizin is pretended to have been given, and there was no such relationship between the parties as is necessary to support a covenant to stand seized. A bargain and sale, before the statute of uses, rested on the goodness of the consideration, and hence it was that a consideration became the great point upon which deeds of conveyance turned, which were invented after the statute in order to raise and convey uses. (Reeves' His. of the Eng. Law, pp. 162, 163, 353, 355; The Rector of Cheddington's case, 1 Rep.,
154; Wiscman's case, 2 id., 15; Sheppard's Touchstone, ch. 10. p. 5.) It is perfectly well settled in this state that, to constitute a good conveyance by way of bargain and sale, there must be a valuable consideration expressed in the deed or proved independently of it. If one is expressed, no proof of its actual payment need be given, and it cannot be controverted by evidence, and it is sufficient, though the amount be merely nominal. (Jackson v. Alexander, 3 John.,
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The question presented in this case is strictly one of legal title. The plaintiff deduced a good paper title from William Helm, who is admitted to have been the owner in fee of the premises, unless one or more of the objections interposed by the defendant to the evidence are well taken.
First. The deed from Fitzhugh was not acknowledged, and there was no subscribing witness to it, and consequently it had never been recorded. It is urged that this defect rendered it void. (1R.S., 738, § 137.) It was, however, effectual to transfer title as between the parties to it. It would be invalid, as against a subsequent purchaser from or an incumbrancer under Helm. But the defendant does not occupy such a position.
Second. The plaintiff claims to have acquired the title of Smith, by means of a proceeding under the statute, respecting non-resident debtors, and the regularity of that proceeding is questioned. The plaintiff proved the application and oath of witnesses required by the statute, the order for the publication of notice to creditors, and the fact of such publication. (2R.S., 2, §§ 2 to 6.) He also gave in evidence the appointment of trustees, and proved that they took the oath prescribed by the statute. The first mentioned papers were sufficient to show jurisdiction in the officer, and the
act declares that the trustees taking such oath shall be deemed vested with all the estate, real and personal, of the debtor, from the first publication of the notice to him. (1 R.S., 41, § 6.) It is also declared that the appointment of trustees shall be conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor, and that the said appointment and all the proceedings previous thereto were regular. (Id., 13, § 62.) It has been held that this language must be qualified by a condition that the case is one in which the officer had acquired jurisdiction. (Van Alstyne v.Erwine, 1 Kern., 331, and cases cited.) Jurisdiction being shown in this case, we are bound to hold that the appointment of trustees furnishes conclusive, that is, incontrovertible evidence, that all the other proceedings were in accordance with the statute, and that all the property of which the debtor was seized and possessed at the time of the first publication of the notice, was by operation of law vested in the trustees. It was the duty of the trustees to have caused their appointment to be recorded within one month after it was made, and this duty they neglected to perform until nearly three months after the time it should have been done. But the object of this provision was simply to perpetuate the evidence of the transaction, and it cannot be pretended that an omission in this respect would divest the title which had thus been acquired, and render the whole proceeding nugatory. The original appointment of trustees was given in evidence; and should it be held that a record made out of time would not be evidence, it would not affect the validity of the original document. The same remark may be made respecting the report of the judge. If the officer had failed altogether in performing this duty, it would not divest the title of the trustees. (Chautauque Bank v. Risley, 4 Denio, 484.)
Third. The defendant's counsel insists that it was incumbent upon the plaintiff to prove the fact of a sale by the trustees to himself. The trustees being clothed with the
title to the land, any conveyance by them which would, by the common law, pass the title, would be effectual wherever the question of title should arise collaterally. The rule would be different, if they had possessed only a power to sell and convey the premises, for in such cases all the formalities required by law must, in general, be observed, or nothing is effected. In this case the premises were shown to have been advertised for sale for the period required by the statute, and the conveyance set forth that due notice of the sale had been given, and that the plaintiff became the purchaser upon a sale at auction. We do not say that the recitals are evidence; but if it were essential to the validity of the conveyance that the purchase should have been made at auction, we are of opinion that the presumption of the due performance of official duty would be prima facie
sufficient to show that it had been done. Where a levy is necessary, in order to give a sheriff authority to sell real estate, the court will presume it to have been made where it is found that he has sold and conveyed the land. (Jackson v.Shaffer, 11 John., 513.) I am of opinion that the plaintiff made out a prima facie case, showing title in himself.
The defendant attempted to show title out of the plaintiff and in Z.A. Leland, under whom he entered and cut the timber. The most favorable view for the defendant which can be taken of the instrument given in evidence by him, is to consider it a conveyance of an undivided half of all Helm's property, and an equitable mortgage of the other half, to secure any future advances which Leland and Skinner might see fit to make. It would clearly be a conveyance of an undivided moiety of Helm's property, but for the want of a consideration. But no consideration was expressed in the paper, and none was proved outside of it. Leland and Skinner did not undertake to advance anything. They did not execute the deed, and there are no expressions in it by which they were bound to do anything in consequence
of their acceptance of it, or which would have amounted to a covenant on their part if they had executed it; and there was no collateral agreement, verbal or written, by which they undertook to advance anything to Helm, or to do anything for him. If the deed had any operation, it was by way of bargain and sale, under the statute of uses. No livery of seizin is pretended to have been given, and there was no such relationship between the parties as is necessary to support a covenant to stand seized. A bargain and sale, before the statute of uses, rested on the goodness of the consideration, and hence it was that a consideration became the great point upon which deeds of conveyance turned, which were invented after the statute in order to raise and convey uses. (Reeves' His. of the Eng. Law, pp. 162, 163, 353, 355; The Rector of Cheddington's case, 1 Rep.,
154; Wiscman's case, 2 id., 15; Sheppard's Touchstone, ch. 10. p. 5.) It is perfectly well settled in this state that, to constitute a good conveyance by way of bargain and sale, there must be a valuable consideration expressed in the deed or proved independently of it. If one is expressed, no proof of its actual payment need be given, and it cannot be controverted by evidence, and it is sufficient, though the amount be merely nominal. (Jackson v. Alexander, 3 John., 484; Jackson v. Fish,
10 id., 456; Jackson v. Florence, 16 id., 47; Jackson
v. Sebring, id., 515; Jackson v. Cadwell, 1 Cow., 622.) It is no doubt true that the insertion of a consideration has become a mere ceremonial observance. It is, however, a form required by law, where there is no evidence of an actual consideration, and we have no more right to dispense with it than with any other legal requirement. I am of opinion, therefore, that the deed was void for the want of a consideration. It was executed before the enactment of the Revised Statutes, and we are not therefore called upon to consider the effect of the provision which the legislature has made respecting grants of freehold estates. (1 R.S., 738, §§ 136, 137.)
But whatever might have been the effect of the deed to Leland and Skinner at the common law, I am of opinion that it has become invalid, as against the plaintiff, by the operation of the recording acts. Helm, the source of title, conveyed to Fitzhugh, and he conveyed to Thornton. Neither of these grantees could hold the land against the prior grantees of Helm, for the former had knowledge of the prior deed and the latter did not cause his deed to be recorded. But Thornton conveyed to Smith for a pecuniary consideration expressed in the deed, and acknowledged to have been paid, and Smith put his deed on record. Smith was not prejudiced by the knowledge which Fitzhugh had of the conveyance to Leland and Skinner. If one affected with notice conveys to another without notice, the latter is as much protected as if no notice to either had ever existed. (Jackson v. Given, 8John., 137; Varick v. Briggs, 6 Paige, 322, 329.) Smith acquired Fitzhugh's title, by means of the conveyance of the latter to Thornton and of Thornton's conveyance to him, as effectually as though Fitzhugh had conveyed directly to Smith. It was unnecessary for the plaintiff to prove that Smith paid a consideration. The acknowledgment in the deed of the payment of a consideration is, uncontradicted, sufficient evidence of the fact of such payment. (Jackson v. McChesney, 7 Cow., 360.) If Smith acquired a good title against Leland and Skinner by virtue of the recording acts, as I have shown he did, the plaintiff would be entitled to protection, though he had purchased with full notice of the prior deed. It is not material, therefore, to consider whether the plaintiff's purchase, under the attachment proceedings instituted by himself, constituted him a bona fide
purchaser within the construction which has been given to the recording acts. It is enough that the purchase from the trustees gave him the title which Smith had. Smith's title being perfect against Leland and Skinner, the plaintiff, being clothed with that title, can hold the land against them. (Varick v.Briggs, supra; Jackson v. McChesney, supra.) I am, moreover, of opinion that a purchaser, under judicial proceedings instituted by himself, though the purchase be made on account of the debt for the recovery of which the proceedings were had, is a bonafide purchaser within the statute. The legal expenses necessarily incurred, which have to be advanced by the party promoting the proceeding, are something in addition to the existing debt which the purchaser has parted with as a consideration for the conveyance which he receives.
If these views are correct, the case was properly disposed of in the supreme court, and the judgment appealed from should be affirmed.