#### *Beverley v. Ellis & Allan, and Others.*

March, 1822.

Deeds — Recordation—When It Takes Effect.† — Where a deed is duly proved or acknowledged, and ordered to be recorded, and left with the clerk for that purpose, it shall be considered as recorded from that time, although it may never, in fact, be recorded, but is lost by the negligence of the clerk or other accident.'

Same — Same—Same.—Therefore a deed, under such circumstances, will be preferred to a subsequent deed, which has been duly recorded, even although the party to such subsequent deed may not have had notice of the prior deed.

Appeal from the superior court of chancery for the Richmond district.

Peter R. Beverley filed his bill in that court, setting forth, that Carter Beverley conveyed to him a tract of land containing five hundred .acres in Culpeper county, by deed of bargain and sale, on the day of January, 1808; and on the 18th day of the same month, acknowledged the same in the county court of Culpeper, when the said deed was, by the said court, ordered to be recorded, and was left with the clerk for that purpose; that before the said deed was actually recorded, it was lost or destroyed by the negligence of the said clerk, and cannot now be found: that after the 18th day of January aforesaid, the said Carter Beverley conveyed the same land to Charles Copland and William C. Williams in trust for the purpose of securing the payment of certain sums of money to Ellis and Allan, merchants: that the said land has been since sold under the said deed of trust, and Ellis and Allan became the purchasers: that Ellis and Allan had notice of the complainant’s title, before the sale under the deed of trust aforesaid. He therefore prays, that Carter Beverley and Ellis and Allan may be decreed to convey the said tract of land to him.

Ellis and Allan filed their answer, giving an account of the manner in which the debt arose between them and Carter Beverley: that to secure this debt, the deed of trust *mentioned in the bill was executed: that they had no knowledge or suspicion, that there was any claim or pretended claim whatever by any person or persons to the said land, except the dower right of Mrs. Catlett, and never heard of the complainant’s claim, until the land was advertised for sale: that the sale was postponed in consequence of an advertisement in the name of Peter R. Beverley, announcing to the public his claim, and cautioning them against purchasing the land: that they made diligent enquiry in all the offices where the said deed must be recorded, and found that there was no deed for the said land to the complainant, nor any paper shewing him to have any title: that thereupon the land *47was again advertised for sale, under the trust deed, and another notification was issued by the complainant, like the first; and at the sale, the defendants became the purchasers, and received a deed from the acting trustee. They therefore conceive themselves to be innocent purchasers, without notice, and for a valuable consideration, &c.

The deposition of Munford Beverley proves, that Carter Beverley executed a deed to Peter R. Beverley, for the tract of land aforesaid. William Broaddus, who was deputy clerk of John Jamieson, clerk of the county of Culpeper, states, that on the 18th day of January, 1808, a deed was acknowledged from Carter Beverley to Peter R. Beverley, as appears by the minute book of the said court, in the hand writing of the deponent. He further says, that he believes, that the said deed conveyed two tracts of land to the said Peter R. Beverley, lying on Mountain Run, in the said county: that, before the said deed was copied into the record book, he believes it was taken from the said office, privately, by some person to him unknown: that a diligent search has been made for it, but it has never been found.

The chancellor dismissed the plaintiff’s bill, and the plaintiff appealed to this court.

*Stanard, for the appellant,

contended, that according to the act for “regulating conveyances,”(a) the appellant had done every thing incumbent on him, to give his deed the privileges of a recorded deed. The condition contained in the law, “and be lodged with the clerk of such court to be there recorded,” has been literally complied with. The fourth section of the act must be construed so as to make it consistent with the first. If it should be understood to make the actual recording an essential prerequisite, instead of the being lodged with the clerk to be recorded, the two sections will be at variance with each other. But, the qualification in the fourth section, “according to the directions of this act,” plainly refers to the first section, which'declares that it will be sufficient for the party to lodge the deed with the clerk to be recorded. When the party has lodged the deed with the clerk, he has done all in his power. The deed is no longer under his control; and it depends upon the clerk, whether it shall be recorded or not. It would be highly unjust to make the party suffer for the negligence of the clerk. If the opposite doctrine shall prevail, the effectual recording will depend, not upon the time of acknowledgment, but upon the time when the clerk might find it convenient to record it. This would place the _ rights of land-holders, upon a very precarious footing.

Wickham, for the appellee,

admitted the correctness of the position, that Peter R. Beverley was only required to lodge the deed with the clerk to be recorded. But the deed must be recorded at some time or other, to give a party the benefit intended by the act of Assembly. This is the import of the 4th and 8th sections of the act. By this construction, the supposed variance between the 1st and 4th sections is avoided. The first section declares that it will be sufficient to lodge the deed with the clerk; the 4th ’^section says it must be recorded. Both sections must have their full meaning, if it be possible; and this can only be done by supposing that the legislature meant, that although it is sufficient if the deed be lodged with the clerk, yet that it must be recorded at some time or other afterwards. Here the deed in question never has been recorded and never can be. The act is positive and not to be evaded by any reasons of expediency. The minute made by the clerk does not give notice of any particular quantity of land, and the boundaries and situation are left quite uncertain, But upon general equitable principles, the case is with the appellees. They are defendants and innocent purchasers. Where equity is equal, the parties will be left to their remedy at law. But in point of fact, there is no proof that this land was ever conveyed to Peter R. Beverley. Even if this were proved, there was fraud in Peter R. Beverley, in not securing his title by a lis pendens; which might easily have been done, as Ellis and Allan’s deed was made two years after the acknowledgment. Besides this, the appellant has a clear remedy against the clerk. He has therefore mistaken his remedy.

Stanard, in reply,

enforced his construction of the act of assembly, by referring to the Revisal of 3819, which has inserted in the 4th section of the old act, the words “lodged with the clerk, &c.” which explain the meaning of the old act, and remove the whole foundation of Mr. Wickham’s reasoning. The assumption that Ellis and Allan are innocent purchasers, is nothing but a petitio principii. If the acknowledgment of the deed and lodging it with the clerk, is equivalent to actual recording, it is notice to the world, and Ellis and Allan must be affected with that notice. The minute of the clerk gives sufficient notice to a subsequent purchaser to put him upon inquiry. Peter R. Beverley was not guilty of laches, because it was not his duty to inquire at the office, whether the deed was recorded or not. As to the argument that the clerk is ’'Responsible to the appellant, it is of no force, since he would be equally responsible to the appellees. And it is at least doubtful, whether he would be liable for an accident which did not proceed from negligence or misconduct^ This is a plain case for equitable jurisdiction. The lost deed can only be set up by a court of equity.

*

For seauel of principal case, see Beverley v. Bills, 10 Leigh 1.

†

Deeds — Recordation—When It Takes Effect. — The principal case has been cited and the propositions laid down in Its syllabus have been approved in Old Dominion Granite Co. v. Clarke, 28 Gratt. 620; Shadrack v. Woolfolk, 32 Gratt. 713; Davis v. Beazley, 75 Va. 493. 495; Va. B. & L. Co. v. Glenn, 99 Va. 470, 39 S. E. Rep. 136. In this last case (Va., etc., Ins. Co. v. Glenn, 99 Ga. 470, 39 S. E. Rep. 136) it is said: “The decision in that case has been often cited by this court, and is quoted from by Burks, J., in Davis v. Beazley, 75 Va. 491, who add that if the deed is duly admitted to record, notice in contemplation of law is thereby given as effectually as if it had been spread on the deed book, and the certificate of the clerk written on the deed that it has been so admitted to record is evidence of the fact. The admission to record is in law notice of the deed to the world. For this purpose the admission to record is effectual, though the clerical act of spreading the instrument *in extenso*on the deed book be never performed.”

As bearing on the legal effect and force to be given to an endorsement of the recorder or clerk on a deed as to its reception and admission to record, the principal case; Carper v. McDowell, 5 Gratt. 212; Horsley v. Garth, 2 Gratt. 471; Harkins v. Forsyth. 11 Leigh 294; Taliaferro v. Pryor, 12 Gratt. 277, and Vaughn v. Com., 17 Gratt. 386, are cited in Burley v. Weller, 14 W. Va. 273.

The principal case is also cited in Cunningham v. Smithson, 12 Leigh 64.

(a)

 1 Rev. Code, p. 157, § 1, old edition.

JUDGE BROOKE,

delivered the opinion of the court:*

The court is of opinion, that on a sound construction of the act entitled “an act regulating conveyances,” and upon the facts in the record in relation to the deed in question, the appellees had that constructive notice of the prior right of the appellant to the land sold under the deed of trust, which that act affords to the sub*48sequent purchasers, when its provisions are complied with. The certificate of the clerk that the deed was acknowledged and ordered to be recorded, and the fact proved by his deposition, that it was lodged with the clerk to be recorded, which is also to be inferred from the entry on the record, was, on the part of the appellant a full compliance with the first section of that act; and the court can perceive nothing in the fourth section, that requires him to do more. The words in that section, “and recorded according to the directions of this act,” in the opinion of the court, imposes no farther duty on the vendee in order to perfect and secure his title. Nor would that construction be tolerated, which would make it depend on the acts or omissions of the clerk over whom he has no control, and with whom the law compels him to deposit his deed. ' A different construction would be attended with great mischief. The act having prescribed no time to the clerk to record a deed by spreading it on the record, its validity would be fluctuating and Uncertain, and the object of the act defeated. If there is any defect in the notice when searched for, the subsequent purchaser, perhaps,_ has his remedy against the clerk, if it *was his duty to make it perfect.

If the deed, in this case, would have given more perfect notice by the inspection of it, the appellant being compelled by the act to lodge it with the clerk, his loss of it would more properly subj'ect him to the action of the subsequent purchaser, in the event that he sustained damage. In the case of Douglass v. Yallop, 2nd Burrow, lord Mansfield intimates the rule to be, that if a j’udgment is not actually entered on the roll in due time, a purchaser who should become liable to it, would have an action against the clerk. On these grounds the court is of opinion, that the said decree is erroneous: therefore it is decreed and ordered, that the same be reversed and annulled. The court is further of opinion,* that as the main question in this case was res integra, it would be hard on the appellees having a decree in their favor, to deprive them of their other defence, relied on in their petition to open the decree, and that the refusal of the chancellor to open the said decree is also erroneous. And it is ordered, that the cause be remanded to the said superior court of chancery to be further proceeded in, according to the principles of this decree.

*

Judge Roam absent from indisposition.

*

This part of the decree relates to a petition by the appellees for another hearing of the cause, alledging that they can produce evidence that the contract between Carter Beverley and the appellant was rescinded by mutual consent, if further time should be allowed them for that purpose; and offering an excuse for not having procured that evidence sooner. — Note in Original Edition.