#### *Guerrant v. Anderson.

May, 1826.

Sheriff — Sale of Mortgaged Slave — Rights of Purchasers. — If a Sheriff sell under execution a slave mortgaged by a deed not recorded, and void against the * creditor, and he sells and the purchaser buys the property, subject to the claim asserted in the deed; the purchaser takes the slave subject to the payment of the mortgage debt. But if, in such case, the Sheriff sells all the title that he has a right to sell in the property, under the execution, whether the deed be .valid or void, the absolute title passes to the purchaser discharged of any claim on the part of the mortgagee.

Unrecorded Deed — Effect of.† — An unrecorded deed is void as to creditors, whether they have notice" or not; but it will be good against purchasers with notice, or who have not purchased for valuable consideration.

Same — Same—Purchaser at Sale In Behalf of Creditor.— A purchaser under a sale in behalf of a creditor, holds the rights and occupies the place of the creditors; and therefor he will not be affected by notice of an unrecorded deed.

' Appeal from the Superior Court of Daw for the county of Buckingham, where Guerrant brought an action of detinue for a female slave, against Apderson. Issue was joined, on the plea of non detinet, a verdict was rendered for the defendant,- and judgment given accordingly.

On the trial, a bill of exceptions was tiled by the plaintiff, stating, that the plaintiff, to support his action, introduced an execution against Catlett and others, which was levied on a female slave of Catlett’s, sold under the said execution, and purchased by Guerrant, the plaintiff; in which sale, Catlett’s title only was sold: that at the time of the sale, the defendant made known his title to the said slave, which was derived from a deed of mortgage, conveying the slave in question, dated the 6th day of August, 1820; and said, that he was ready to relinquish his title to the slave, if the money was paid to him; to secure which the deed was made, and not otherwise; but the plaintiff refused to pay it: that it appeared that the plaintiff knew of the deed before the sale

under the execution: that the Sheriff admitted that he had seen the deed, before the day of sale; and he swore that he sold such right as Catlett had in the slave, subject to the deed, if it was, in law, liable and subject to it; and not subject to it, if the deed was not, in' law, sufficient to subject it; and that the deed was produced and *exhibited publicly on the day of sale by the deféndant, who forbade the sale, and claimed the slave r that at the sale, the Sheriff held the deed in his hand, read it aloud, and proclaimed that he was selling subject to the defendant’s claim under the deed. The plaintiff moved the Court to instruct the jury, that if, from the evidence in the cause, they did believe that the Sheriff did sell the slave for such right as he might sell under the execution, and independent of the deed, the title of the plaintiff under the sale was independent of the deed, and that they were not to regard the deed as evidence in the cause, because the same had not been recorded, or delivered to be recorded. The Court overruled the motion, and permitted the deed to go. as evidence to the jury, and instructed them, that if they believed from the evidence, that the Sheriff sold and the plaintiff purchased the slave in question, subject to the deféndant’s claim asserted by the deed, the plaintiff is not entitled to-recover the slave from,the defendant, without first satisfying the claim, according to-the terms of the deed ; and if they believe, from the evidence, that the Sheriff sold, independent of, and without any reference to, the deed; yet, if they believed, from the evidence, that the Sheriff and plaintiff both had notice of the deed, at and before the day of sale, the plaintiff’s title under the sale would be affected by it, and the deed evidence for the defendant, although not recorded, if otherwise satisfactorily-proved to the jury, and that all the transactions were within eight months after the date of the deed ; to which opinion, the plaintiff'excepted, and appealed.

The ease was submitted, without argument.

*

Absent the President, and Jtose Coalteb.

†

Unrecorded Deed — Effect.—To the effect that an unrecorded deed is void as to creditors whether they have notice or not, but good against purchasers without notice or who have .not been purchasers for valuable consideration, the principal case *is*cited in Roanes v. Archer, 4 Leigh 562; Smith v. Smith, 19 Gratt. 548; Heermans v. Montague, 2 Va. Dec. 19; Delaplain v. Wilkinson, *17*W. Va. 275; State v. Johnson, 28 W. Va. 70; Abney v. Ohio Lumber, etc,, Co., 45 W. Va. 452, 32 S. E. Rep. 259.

May 17.

The PRESIDENT

delivered the opinion of the Court.

The questions which belong to this case, turn on the two instructions of the Judge to the jury, which are set out in the bill of exceptions. The suit is in behalf of the purchaser *of the slave in question, at a public sale, under an execution levied in the property, and proceeded in according to law, against the appellee, who claims the property under an unrecorded mortgage, executed by the defendant in the execution.

The counsel for the plaintiff moved the-Court, upon the evidence exhibited to the jury, to instruct the jury, that if from the evidence, they believed that the Sheriff did sell the slave, for such right as he might sell under the execution, and independently of the deed, that the title of the plaintiff, under the sale, was independent of the deed;, and that they were not to regard the deed as evidence in this cause, because the deed was not recorded, or delivered to be recorded. This motion was over-ruled; and the Judge instructed the *95jury, that if they believed from the evidence in the cause, that the Sheriff sold, and the plaintiff purchased the negro in question, subject to the defendant’s claim, asserted bv the deed, he, the plaintiff, is not entitled to recover the slave from the defendant, without first satisfying the claim, according to the terms of the deed. To this instruction, there seems to be no valid objection. If the plaintiff purchased only the title of the mortgagor, the possession of the mortgagee could not be divested, until his claim under the deed was satisfied.

The second instruction under which the merits of the case turn, was in the following words; that “if the jury believed from the evidence, that the Sheriff' sold independent of, and without reference to the deed, yet if they also believe from the evidence, that the Sheriff and plaintiff both had notice of the deed, at and before the day of sale, the plaintiff’s title under the sale, would be affected; and the deed evidence for the defendant, though not recorded or delivered to the clerk to be recorded, if otherwise satisfactorily proved to the jury; and that all the transactions were within eight months after the date of the deed.” The error in this instruction, consists either in not distinguishing between a purchaser of the rights of a creditor, *from a purchaser from the debtor, or in confounding the condition of a creditor with that of a purchaser, with notice of a prior deed, and must have grown out of a misapprehension of the Statute, in relation to the subject. By the 4tn section of the Act, to reduce into one the several Acts for regulating conveyances, and concerning wrongful alienations, it is declared, that all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to creditors, absolutely and without qualification; and as to subsequent purchasers, with the qualification, “for valuable consideration, and without notice.” The words, “for valuable consideration,” in the section, certainly have no application to creditors, there being none of any other denomination; nor have the words, “without notice,” which make a part of the qualification of a purchaser to resist the unrecorded deed, any relation to a creditor, either by its position in the sentence, or its context. The sentence following this provision in the 4th section, makes this more plain, if it were necessary. Its words are, “but the same, as between the parties and their heirs, and as to all subsequent purchasers with notice thereof, or without valuable consideration, shall nevertheless be valid and binding;” omitting entirely, the word “creditors,” and thereby fully explaining the meaning of the provision in the section that precedes it. The 2d section in the same Act, might be resorted to for the same purpose. In that section, the words, “for valuable consideration, and without notice,” are only applied to subsequent purchasers ; and the provision as to creditors, is included in a substantive sentence coming afterwards, to which those words can have no application. A contrary exposition, would oe in conflict with both the language and intention of the legislature. Before the words “for valuable consideration without notice” were inserted in the Act, it was the settled law oí a Court of Equity, though the unrecorded deed was void at law, to postpone such subsequent purchaser, on the ground that he was guilty of a K'fraud, in purchasing what he knew, in justice, belonged to another. Since the insertion of those words in the Statute, that rule has become a rule of law ; but that rule was never extended by a Court of Equity to creditors, nor was it intended to be so extended by the legislature; because, though a creditor has notice of an unrecorded deed, he commits no fraud by crediting the grantor upon his general responsibility. If, in the lawful pursuit of his rights, he gets a lien on the property by the delivery of an execution to the proper officer, as in the case before us, or otherwise, having equal equity with the party claiming under the deed, he falls within the settled rule of equity; that between parties having equal equity, he who has the law also, shall prevail. That the second instruction of the Judge would violate this rule, is perfectly clear; for, though the appellee was a purchaser and not a creditor, and in that character, in an ordinary case, would fall within the provisions of the Act in regard to purchasers, yet being a purchaser under a sale in behalf of a creditor, he holds his rights and occupies his place in this controversy; otherwise, the rights of a creditor would be of no avail.

On these grounds, the judgment is to be reversed, and the verdict set aside, and the cause ordered for further proceedings, in which the second instruction in the bill of exceptions is not to be given, but a contrary instruction, in the event that a similar motion is made by either party.