
    
      William Knotts vs. Alexander Geiger.
    
    That express notice of a deed will stand in the place of recording, is too well settled to be now questioned.
    The question was, whether the plaintiff, who had purchased the land from the heirs of 'W'., the grantee, had notice of a prior unrecorded deed from W. to Stark. Knox testified that being employed to survey the land for Stark, and having in his possession the grant to W. and the deed to Stark, he exhibited to the plaintiff “ Stark’s titles.” It further appeared that plaintiff claimed under a junior grant, but that after Knox’s survey he procured a conveyance of the land from the heirs of W. To the testimony of Knox, though contradicted by several witnesses, the jury gave credit, and it was held to be sufficient evidence of express notice.
    
      Before Evans, J., at Lexington, Fall Term, 1850.
    This was an action of trespass to try the title to a tract of five hundred acres of land, granted, in 1794, to one Roland Williams. In 1813, Williams, by a deed, which recited that the land had been surveyed in his name for the Starks, conveyed, in consideration of ten dollars, and without warranty, except as against himself and his heirs, the land to Alexander B. Stark and Robert Stark. This deed was never recorded. The defendant claimed under it by a purchase at public outcry, in 1844, from one Jacob Smith, trustee of Mrs. Stark, widow and sole heir of Alexander B. Stark.
    The plaintiff made out his title by deeds from the heirs at law of Williams, dated in 1846, which deeds were regularly recorded. The land was included in subsequent grants. From these grantees the plaintiff Knotts had purchased; but when the land was claimed by Geiger, under his conveyance from Smith, Knotts endeavored to perfect his title by procuring deeds from the heirs, under a contract that he was to pay only in the event of a recovery. The real question between the parties was, whether Knotts had such notice of the existence of the deed from Williams to the Starks, as would make it good against him, without recording. There was no doubt he knew the land Avas claimed as the property of Stark. But it was not clear that he ever had any knowledge that Williams had made a deed for the land to the Starks, and this was the only point which the case involved.
    One of the subscribing witnesses to the deed from Williams to the Starks was Jonathan Cottin, whose Avife Avas a child and heir of Williams. They afterwards conveyed to Knotts. Cot-tin proved the deed, but said that he had forgotten the fact of attestation when he conveyed to Knotts, or he would not have done it.
    Dr. John Knox, a witness for the defendant, testified that “in May, 1841, (which was after, the death of Alexander B. Stark,) he was employed by Jacob Smith to run this land for Mrs. Stark, Avhich he did, and made a plat of it. He went to Knott’s house and informed him of his business. Knotts, the plaintiff, James Knotts, Leonard and Scott, were the chain carriers. Smith furnished him with the original grant, and the deed from Williams to A. B. & R,. Stark; both of which he had on the survey. He shewed to Knotts Mrs. Stark’s titles to the land, who appeared satisfied with her title, and assisted him in hunting the lines. He shewed the-titles to Knotts in his own-house.”
    Dr. Knox was contradicted by James Knotts, Scott, and several other witnesses for the plaintiff, who testified that, when he went to make the survey, he had with him neither the grant to Williams nor the deed from Williams to the Starks, hut only some papers, which he called Stark’s'field-notes.
    His Honor, the presiding Judge, charged the jury that the notice which the law requires must he certain and explicit, and left it to them to decide whether such notice had been proved. Pie thought it very clear that, if the plaintiff’s witnesses were to he believed, Knox was mistaken. The jury, however, believed his statement, and found a verdict for the defendant.
    The plaintiff appealed, and now moved this Court for a new trial, on the following grounds:
    1st. Because His Honor, the presiding Judge, did not charge the jury that the proof of notice, to the plaintiff, of the deed from Roland Williams to Alexander B. Stark and Robert Stark, which is not recorded, was not explicit, and therefore insufficient to supply the place of registration.
    2d. Because there was not sufficient proof of notice to the plaintiff of the existence of said deed and its contents, to warrant the finding of the jury.
    3d. Because the verdict of the jury is contrary to law and against the decided weight of the 'testimony, and the charge of the presiding Judge.
    
      Boozer, Glover, for the motion.
    
      DeSaussure, contra.
   Curia, per

O’Neall, J.

That express notice of a deed will stand, in the place of recording, is too well settled to be now questioned. Tart vs. Crawford, (1 McC. 265,) McFall vs. Sherrard, (Harp. 295,) and Anderson vs. Harris, (1 Bail. 315,) may, out of many cases decided on this subject, be cited in proof of the position.

The Judge below stated the law correctly to the jury. The only question then for us is, was there evidence of express notice? That there was, is too plain to he questioned. Dr. John Knox proved that the original grant to Roland Williams, and his deed to Alexander B. and Robert Stark, were placed in his hands by Jacob B. Smith, the trustee of Mrs. Sarah Stark, to make the survey, and that he showed the defendant “ Mrs. Stark’s titles.” That he was contradicted by other persons, is true. But the jury had the right to believe him, and, I have no doubt they did right in believing him. For he is an intelligent, respectable man, and had abundantly the best opportunity.of knowing what took place between himself and Knotts.

So too the very fact that Knotts soon after set about acquiring the title of the heirs of Williams, satisfies me, as very probably it did the jury, that he knew of the deed; but thought he could lay hold of the fact of the non-recording, and thus defeat the title in Mrs. Stark under it.

It is, however, enough to say, that the jury have passed upon a question of fact, on both sides of which there was testimony. Their verdict, under such circumstances, will not be disturbed.

The motion is dismissed.

Evans, Waudlaw, Frost and Withers, JJ., concurred.

Motion dismissed.  