
    *Gleeson's Heirs v. Scott and Others.
    Tuesday, March 7, 1809.
    Tenant in Tail — Conveyance of Base Pee — Deed of Bargain and Sale. — Tenant in tail (before our Act of Assembly for aocking- entails) might, by a deed of bargain and sale, convey a base fee (a defeasible estate) voidable by the issne in tail, but not by himself. Therefore, a tenant in tail, having bargained and sold to his own heir at law in fee, ■could not afterwards sue out a writ of ad auod damnum to bar the entail; being no longer seised of an estate tail, which was absolutely necessary to authorise him to sue out such a writ.
    This was an appeal from a judgment of the District Court of Accomac, rendered in favour of the appellees, who were demand-ants in a writ of right, against the now appellants, who were the tenants. Issue being joined on the *mere right, a case was agreed between the parties, from which the following statement is extracted.
    Henry Scott, the elder, was seised in fee of the lands, in question, and by his will, dated on the 19th of January, *1731, devised them to his son, Henry Scott, and the heirs of his body forever ; and died in that year. Henry Scott the younger, and devisee, being thus tenant in tail, on the 2d of March, 1761, executed a deed of bargain and sale for the *same lands to his son and heir at law, Caleb Scott; by which deed in consideration of the sum of fifty pounds, he ■conveyed an estate in fee-simple, to hold to the said Caleb, his heirs and assigns forever, to his and their proper use *and behoof, and to and for no other use, intent or purpose whatsoever; with a covenant that the bargainor was possessed of an indefeasible estate in fee-simple, and that the same was free and clear of all incumbrances; and with a general warranty, and covenant for further assurance at any time within seven years; and concludes with these words: “In witness whereof the party to these presents hath set his hand and seal the day and year first above written. But be it always provided, and it is true intent and meaning of these presents, that he the said Henry Scott, shall have the whole use and benefit of the above bargained land *and appurtenances to him during life. ” This deed Was sealed and delivered in presence of three witnesses, and proved by two of them, within eight months, (viz. in Aug'ust, 1761,) but not by the third till nearly ten years afterwards, (viz. in March, 1770,) when it was admitted to record.
    On the 19th of December, 1769, Henry Scott the younger being in possession of-the premises, sued out of the office of the General Court a writ of ad quod damnum for docking the entail,  directed to the Sheriff of Northampton County, reciting that he was then seised as tenant in fee-tail of the said lands; which writ was executed by John Harmanson, the then Sheriff, on the 17th of January, 1770. The quantity of land mentioned in the writ is one hundred acres, and in the inquisition, ninety-nine. At the time of suing out this writ, Caleb Scott, the bargainee, is admitted to have been dead, leaving issue, four daughters, two of whom died in 1784, under age and without issue; the third died in 1787, leaving a natural son (George Fisher, alias Scott,) one of the demandants; the fourth is Peggy Scott, the other demandant.
    On the ISth of August, 1770, (after the deed from Henry Scott the younger, to his son Caleb, had been fully proved and admitted to record,) the said Henry executed a deed of bargain and sale of the premises, reciting the devise to *him as tenant in taille, and the execution of the writ of ad quod damnum; whereby, in consideration of 1001. to him in hand paid by John Harmanson, he bargained and sold the same to him and his heirs and assigns forever; to his and their proper use and behoof forever, and to no other. There is no clause of warranty, nor any other covenant contained in this deed, which was proved and admitted to record in the General Court at the next term. Harmanson afterwards, on the 13th of February, 1771, sold and conveyed the land to Teakle Robins; whose executor, by virtue of a -clause in his will, directing the land to be sold for the payment of debts, sold and conveyed the same, on the 12th of August, 1777, to Thomas Dalbj'; who, .on the 10th of February, 1778, sold and conveyed it to John Gleeson, senior, who died seised thereof, and by his will devised it in fee-simple, to the tenants, in the writ of right mentioned, who entered thereon, &c.
    It was agreed that John Harmanson had notice of the deed from Henry Scott the younger to Caleb Scott, before the execution of the said Henry’s deed to him, to wit, on the day of executing the writ of ad quod damnum; and that Teakle Robins and Thomas Dalby also h'ad notice thereof before the execution of the several conveyances made to them. But no notice is alleged to have been received by John Gleeson, senior, of that deed, at any time.
    The District Court gave judgment for the demandants; from which judgment the tenants appealed to this Court.
    Call, for the appellants,
    argued that the deed of bargain and sale from Henry Scott the younger to his son Caleb, being a grant of a freehold in futuro was void. But even if it were good, it passed only a life-esiate; because such conveyance by a tenant in taille would only transfer so much as he could lawfully convey. That Henry Scott the younger having obtained possession of the land, not wrongfully from any thing that appears, was remitted to his former estate, and might lawfully defeat the entail of the writ of ad quod *damnum, and afterwards convey the land in fee. But the point, on which the whole cause turned, was, that Gleeson, under whom the tenants claimed was a purchaser, in 1778, for valuable consideration without notice. To this was opposed the deed of Henry Scott the younger, to his son Caleb Scott, in 1761, which was not recorded in due time. By the law then in force no estate of freehold in lands or tenements could pass, but by deed, acknowledged by the party, or proved by three witnesses within eight months, and recorded. The 4th section declares, that all deeds not so acknowledged, or proved and recorded, “shall be void, as to all creditors and subsequent purchasers.” The act of 1785 shews the sense of the legislature on the subject; for in that act, it ié declared that such conveyance shall not be good “against a purchaser for valuable consideration, not having notice thereof, for any creditor,” unless it be proved and recorded as the act directs. But the act of 1748, makes the deed void, whether there were notice or not. In the case before the Court, the deed was proved by two witnesses within eight months, but not by the third, till nearly ten years after-wards. The admission of the deed to probate, on the oath of two witnesses, was merely for safe-keeping, and could give it no additional validity ; and the proof by the third witness was coram non judice; the jurisdiction of the Court being confined to eight months. If it be objected that, after the deed was recorded even though the eight months had elapsed, it would operate as constructive notice, it may be answered, that a party is not bound to look for a paper which is not a matter of record; and no recording in any other manner than the act prescribes, will be a compliance with the law. Hence it is, that Courts of equity entertain bills for new conveyances. On the last point, Mr. Call cited the following authorities, as containing the same principle, viz. 1 Wash. 319, Turner v. Stip; 2 Wash. 64, per curiam, in the case of Currie v. Donald ; 1 Call, 121, Maxwell v. Light; 2 Call, 198, Anderson v. Anderson; 1 Johnson’s (N. Y.) Rep. 498, Jackson, ex dem.; Wyckoff, v. Humphrey; Kippen and Co. v. Walrond, Federal *Court, (MS.) per Judge Chase, who held clearly that a subsequent purchaser should be protected against a deed not fully proved in time.
    Wickham, for the appellees,
    contended, that by the deed of Henry Scott the-younger, to his son Caleb, the whole estate passed to the bargainee; and though a use limited upon a use would be void at law,  yet a Court of Equity would consider it a trust, and enforce it. In Goodright, ex dem. Ts'rrell, v. Mead and Shilson, it is said by all the Judges, to be a settled point, “that a release, or a bargain and sale by the tenant in tail, is not absolutely void; but conveys a base fee, defeasible bj the issue in tail;” but certainly not by the tenant in tail himself. This conveyance, then, operated as a complete divesture of the estate of Henr} Scott the younger, and passed all his estate, not for life only, but in fee-simple, determinable by the issue in tail. On the same principle, it has been decided, that such a conveyance, by tenant in tail, of the wife’s land, would deprive the husband of curtesy,  If Caleb Scott had brought his action at law, he must have recovered, and the father would have been driven into equity to support his life-estate ; the legal estate being vested in the son. It may be contended that the deed from Henry Scott the younger, to his son was wholly void, by the express terms of the act of 1748, sect. 14,  which declares all conveyances for the purposes of defeating an estate tail, void. But the statute de donis had a clause equally comprehensive ; and it has always been held, that as the object of the law was to protect the issue in tail, so far as the deed went to defeat his estate, it was void, only; but was good, as it respected the tenant in tail. Henry Scott, therefore, not having the seisin of the land in tail, was not author-ised to bar the issue by a writ of ad quod damnum.
    Whether a subsequent purchaser or creditor should be bound by constructive notice of a deed after it was recorded, though not within the eight months, is a question of immense importance to the citizens of this country. On *principie, nothing can be clearer than that, after a deed is once recorded, it is constructive notice to the whole world; and such has always been understood as the course of decision under the old General Court system. In England, the Register act says not a word about notice, and yet it has always been construed as if the words “without notice” had been inserted after the word “ purchasers. ” None of the cases cited by Mr. Call apply to the present; because they either turned upon the insufficiency or irregularity of the proof, which did not authorise the Court to receive the deed at all; or contained the opinions of respectable Judges of other States not conversant with our laws. But there is nothing to prevent the Court from receiving proof of the execution of a deed, after eight months from its date. Besides, a deed may bear date prior to the time of its delivery, which is the true date in law, or it may be acknowledged by the grantor; and, if this should not appear from the face of the deed, proof may be admitted to shew it, and (the time of the delivery or reacknowledgment, though posterior to the date, would be the period from which the eight months should be computed. Every person is presumed to have notice of an- instrument when he might have notice; and every thing which puts it in the power of a party to obtain notice, is constructive notice. In the case before the Court, Harmanson not only had actual, but constructive notice; not having purchased till after the deed from Henry Scott the younger, to his son Caleb, was fully proved, and admitted to record.
    
      
       By tbe laws of Virginia, (edit. 1789, p. 145, 146, s. 14, 15, 16.) it was declared that no ñne or recovery should be levied or suffered, whereby to defeat any estate-taille; nor should such estate be cut off or defeated by any means whatever except only by act of Assembly. But for the convenience of poor people, seised m fee-taille of inconsiderable parcels of land, often ignorantly or undesignedly devised In taille. it was further declared that any person or persons seised in fee-taille general or special, of lands, tenements, &c. not exceeding the value of two hundred pounds sterling, might sne out of the Secretary’s office, a writ in the nature of an ad (iuod damnum, directed to the Sheriff of the County where the land lies, to inquire by a jury of its value. And on complying with the requisites of the act, the tenant in taille might afterwards by deed of bargain and sale, reciting the title and inquisition, and expressing a valuable consideration bona fide paid, convey the land in fee-simple to a purchaser, and thus bar the issue in taille. — Note in Original Edition.
    
    
      
       See Laws Virg-. 1748, edit. 1769, p. 142, 143, s. 1, 2, 3, 4.
    
    
      
      lb) See Sess. Acts, p. 51, and Rev. Code, vol. 1, c. 90. s. 1, p. 156, 157.
    
    
      
       Shep. Touch. 510; 2 Black. Com. 335.
    
    
      
       3 Burr. 1703,1705.
    
    
      
       7 Term Rep. 276; Doe, ex üem. Neville, v. Rivers and others.
    
    
      
       See Virg-. Laws, edit. 1769, p. 145.
    
    
      
      fe) 3 Call, 410, per Pendketon, J., in Nelson v.Har-wood.
    
    
      
       Cowp. 712; perLD. Mansfield in Doe v. Rout-ledge.
    
   Wednesday, March, 15th. The President delivered the resolution of the whole Court, (absent,

JUDGE LYONS,)

that there was no error in the record, and that the judgment of the District Court be affirmed.

The reporters are authorised to state, “that the Judges were unanimous upon this ground, that Henry Scott the younger, having by his deed of bargain and sale, with warranty, to his son Caleb, and his heirs, and also with a covenant *that he was seised of an estate in fee-simple, and for further assurance, parted with his whole estate in the lands in question, was no longer seised of an estate tail therein, w’hich was absolutely necessary to entitle him to sue out a writ of ad quod damnum; and by so doing was guilty of a fraud, and nothing passed by virtue of his subsequent deed of bargain and sale to John Harmanson, which was therefore void in law. ’’  