Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-17

e,ecutad n deed of trust to complainant Henry N.
Myers upon certain real estate in Hawkins county,
to secure to Caroline Myers wife OF said Henry NJ
the sum of $4,000, which said Ross owed her.
This deed though acknowledged before the Clerk on
the LIST of January 1850 unregistered uLtn the
I'd of March, 1852.
Subsequent to the execution and acknowledge
ment of said deed and before its registration the
said Frederick A. Ross, who wished to procure a
loan from the Branch Bank of Tennessee at Rogers
Vile as well as to make more secure certain DEBTS
which he owed said Branch Bank, executed another
deed OF trust TO secure the payment of said advances
and debts in which ne conveyed to John Netherand
and Charles J. Mckinney as trustees for that pur-
nose certain lands also situated IN Hawkins county
and which included the real estate previously con-
viewed to Henry NJ. Myers As above stated.
This deed to Netherland and Mckinney was proved
and registered before the registration OF the deed
/ to Myers and the question now IS which Oh these
deeds shall have priority Of payment out OF the
! property common 10 both.
1t is insisted that the Bank had notice OF the deed
/ to Henry NJ Myers and that this entities complain
ant Caroline TO priority of satisfaction over the deed
for the benefit of the Bank though the latter deed
was first registered.
The evidence as 10 the notice rests upon the test
r,op,, of said Ross who proves that before the VIII
tir of the deed for the benefit of the Bank, he men
| TONED 10 John Netherland in a casual momentary
remark in his house the fact that he had given II.
NJ Mve-s a deed for very small part Of the proper
tv he intended to convey TO the BANK cut OeHeEeu
Netherland was counsel for the Bank, that on the
night of that day the witness attended IN the Bank
and then and there the papers were written Tor Tic
! Bank bv 7. y Il. Nelson that there were BANK o.
fcers present not distinctly remembered by the wit
ness only he felt certain that neither Mr.. Neither
land nor c. J. Mckinney were there, that the next
morning and before tine deed to the Bank was wit
messed he met c. J. Mckinney bank director IN
the street near his store and while passing stopped
for a moment and SAID to him just what lie Hau
mentioned to Mr. Netherland
The act of 1881, ch. 80, after enumeraung what
instruments shall be proved and registered declares
in the 9th section thereof that ANY OF sad lnstru-
ments so proved and registered as aforesaid. shall
take effect only from the time they are registered
and any deed of conveyance, bill Of sale or other
instruments above mentioned, which shall be last
executed but first registered, shall have preference
thereof unless it is proved in Court OF equity ac-
clp,r IN the rules of said Court that such subse-
ouent purchaser had full notice Of the previous
conveyance.
In Knowles. VS. MaGterson, ct ais. and Vance,
vs. Masterson, ct ais. Hum. GIG, 1t was hefd tha'
mortgages were within the meaning OF this section
of the act of 1881 And it is most obvious not only
from the principle Of that case, but from the Ian
guage of the act itself that it embraces deeds OF
trust.
1t was also further determined in that case, that
knowledge Of a prior incumbrance on the part OF a
subsequent purchaser though his deed might be
first registered, had the effect to postpone HIM as
against such previous membranes.
! 10 Is.
mIIucsted by F. A. Ross, Of the existence OF deed
To Myers to John Nctherland and Charles j. Mcken
new was notice to the Bank. And we are OF opinion
it was They were the trustees in the deed for the
benefit Of the Bank and such, took the legal IL
tie To the estate Ii Is most manifest that the com
muncation was made to them, nreation to the very
deed then about to be executed, for the benefit OF
the Bank and in which they were to, and DID be
come the trustees, and we think both had the notice
prior to the execution Of the deed But this IS moi
Wnvng pG of fsfI rs Z
both They no doubt believed at the time, as die
Ross himself that he could in a short time adjust
the debt with Myers, but this cannot impair the lie
cal effect of the notice 1t is difficult to perceive
how the beneficiary in deed Of trust can clam
the advantage of its provisions without being at
fected with notice to the trustees Of prior in
CumbranCe
In Leneve vs. Leneye lamb. 1876, 5. c. 3 Atk. GAG.
: Lord Chancellor HardwiCke held that notice to al
agent or trustee was notice to the principal In thai
case lands in register courts were settled in trustees
by deed which not registered and the SAINT
lands were afterwards upon a second marriage
settled IN two trustees, cambridge and Norton, the
latter of whom was the solicitor Of Mary Lenevt
the BENEFICIARY in the second deed and had notice
the former settlement and the decision of the Chan
ceor was that though the second settlement was
registered pursuant the Statute 9TH Anne in bOtf
respects as agent and trustee notice to Norton was
notice to defendant Mary; the beneficiary, likewise
The Chancellor IN the opinion cites the case OF Jen
nings VS.. Moore, BlnCOme and others, 2 Nern, Coz
which was this; Bllncome having notice of an in
cumbrance purchases in the name of Moore anC
then agrees that Moore shall be the purchaser anC
he accordingly pays the purchase money withou
- notice of the inCumbrance. Though Moore did no
employ BncOme know anything of the pur
chase till after it was made yet Moore approving o
it afterwards made Blincome his agent dJ milo anC
therefore shall be affected with the notice to Bin
come See also Union Bank vs.. Campbell 4 Hum
1914
e The decree of the Chancellor to the equities o
the parties under these two deeds Of trust will b.
reversed and priority given to complainants.
WRIGHT.
Il A true copy. Test; Z. W. NELSON, CIerk.