
    M’Clure v. Thistle’s Ex’ors.
    July Term, 1845,
    Lewisburg.
    1. Deeds — Recordation—Judgment Creditors. — A deed executed before judgments have been obtained against the grantor, under which the purchaser ■ has been put in possession and paid the purchase money, but which was not recorded until after the judgments were obtained, is void as against such creditors, and the land conveyed thereby is subject to satisfy the judgments.
    2. Same — Same—Same—Ca. Sa. — The land is equally subject, in such. case, to satisfy a creditor, who has issued a ca. sa. upon his judgment, upon the service of which, the grantor in the deed has been discharged as an insolvent debtor.
    David Agnew, being the owner of a lot of ground in the City of Wheeling, he and his wife, by deed bearing *date the 23d of December 1835, conveyed the same to John M’Clure, and put him in possession thereof. The privy examination of Mrs. Agnew was regularly taken, on the day the deed was executed, but it was not admitted to record until the 21st of May 1842.
    After the execution of the deed, and when M’Clure was in possession of the lot, but before it was recorded, judgments were recovered against Agnew by several of his creditors, and among others bj Benjamin T. Thistle, who sued out a capias ad satis-faciendum against the body of Agnew, upon which he was arrested, and in August 1840, took the benefit of the act for the relief of insolvent debtors.
    In 1843, Thistle instituted 'this suit in the Circuit Superior Court of Daw and Chancery for the county of Ohio, against M’Clure, Agnew, and the judgment creditors of Agnew; and in his bill claimed that, as the deed to M’Clure had not been admitted to record until after his judgment, as well as those of the other creditors whom he named, had been obtained, and Agnew had been discharged as an insolvent debtor on his execution, they were entitled to have the lot then held by M’Clure, applied to the satisfaction of their judgments. He therefore prayed that the Court would fix the priorities among'the creditors, and that the lot might be sold, and the proceeds thereof applied to the satisfaction of their claims.
    M’Clure answered, stating his purchase, and payment of the whole purchase money, and the execution of the deed, and his possession under it; and these facts were admitted.
    The cause coming on to be heard, the Court expressed the opinion, that the lot was subject to the Hens of the judgments; and directed a commissioner to ascertain the judgments which were liens upon it, their amount and priority; and upon the coming in of the report, made a decree for the sale of the lot, and the distribution of the proceeds among the creditors.
    ^Thistle having died during the pendency of the suit, it was revived in the name of his executors; and then the commissioner having reported a sale of the lot, that report was confirmed, and a final decree was made in the cause, upon the principles before declared. From this decree, M’Clure obtained an appeal to this Court.
    Goode, for the appellant.
    The plaintiff having resorted to a ca. sa., and his debtor having been discharged by taking the oath of insolvency, the lien of the judgment is lost, and that of the ca. sa. alone remains. Rogers v. Marshall, 4 Beigh 425; Foreman v. Boyd, 2 Beigh 284. This lien of the ca. sa. bound nothing more than the interest which Agnew had in the land, at the time of its service upon him. The act for the relief of insolvent debtors, provides that all the estate which shall be contained in the schedule of the prisoner and any other which may be discovered to belong to him, for such interest therein as he hath, or “may lawfully depart withal,” shall be vested in the sheriff, for the benefit of the execution creditor. But our statute requiring deeds to be recorded, declares they shall be good and valid between the parties, though ttnrecorded; and therefore, Agnew had no interest in the lot in controversy which he could “lawfully depart withal;” and which could vest in the sheriff for the benefit of the execution creditor.
    Our statute, which avoids unrecorded deeds in favour of creditors, can only be made available by those creditors who have such liens as would bind the land if the deed had not been made; and when, therefore, the lien of the judgment is merged in the lien of the ca. sa., the creditor seeking to enforce that lien, must make out his title under the act for the relief of insolvent debtors; and shew that this statute passes to the sheriff the land which he seeks to subject; or, in other words, that his debtor has an interest therein “which he may lawfully depart withal.” This, I submit, cannot be done.
    *2. In this case, if no deed had been executed, M’Clure would have held a perfect equitable title. He had purchased the lot, had paid all the purchase money, and had been put in possession. Is it the true construction of the statute avoiding unrecorded deeds in favour of creditors, that equitable titles to real estate are of no avail against them? Certainly it has not been so held. And can it then be held, that this perfect equitable title is defeated, because, in addition thereto, the purchaser has received a conveyance of the legal title? Take it that the statute avoids the deed; the equitable title still remains; and it will be giving to a statute, harsh in its operation, the very harshest possible construction, if it is to be held that this void deed, is to avoid an equitable title, which, independent of it, is entirely valid.
    William Smith, for the appellee.
    The statute 1 Rev. Code, ch. 99, § 4, p. 362, says: “All bargains, sales, and other conveyances whatsoever of any lands, tenements, or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for a term of 3ears, and all deeds of settlement upon marriage, whether either lands, slaves, money, or other personal thing, shall be settled, or covenanted to be left, or paid at the death of the party or otherwise; and all deeds of trust and mortgages whatsoever, which shall hereafter be made and executed, shall be void as to all creditors, and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged and proved, and lodged with the clerk, to be recorded according to the directions of this act; 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.” The language of the statute is plain; and indeed it has received a judicial construction, by which it is established that creditors, whether with or without notice of the deed, *are embraced within its provisions. Guerrant v. Anderson, 4 Rand. 208. The simple enquiries, therefore, are: Are the claimants here creditors of Agnew? And was the deed to M’Clure recorded? If the first enquiry is answered in the affirmative, and the second in the negative, as they must be, then I submit, the question is settled.
    But it is said that, the lien of Thistle’s judgment is merged in the lien of the ca. sa. ; and that this last does not bind the property. The mode of argument adopted by the counsel for the appellant, has been attempted before, but without success. In the case of Shirley v. Bong, 6 Rand. 73S, it was insisted that a fraudulent deed was valid between the parties; and, therefore, that the grantor had no interest in the property thereby conveyed, which he might “lawfully depart withal,” but the Court decided against the argument, and held that the sheriff was entitled to recover the property conveyed by the fraudulent deed.
    2. It is said, however, that although the deed is void, M’Clure’s equitable title to the lot is good against creditors. I submit, that his equitable title was merged in his legal title on the execution of the deed to him; and that in no case decided under this statute, is any countenance given to the idea, that the legal and equitable title may be separated, and whilst the first is void, the latter may be valid against creditors.
    It has been decided by the Supreme Court of the United States, in the case of Bayley v. Greenleaf, 7 Wheat. 46, and by this Court in Moore & als. v. Holcombe & als., 3 Leigh 597, that the judgment lien has priority over the equitable lien of the vendor for the purchase money. The principle of these decisions is decisive of this question. The legal title of the grantee being void as to creditors, his equitable title must be void as against the legal lien of the judgment.
    
      
      Deeds — Recordation—Subsequent Judgment Creditors. — For the matter in the first. headnote the principal case'is cited in Delaplain v. Wilkinson, 17 W. Va. 263: Snyd.er v..Martin, ,17. W. Va. 289; Pack v. Hansbarger, 17 W. Va. 323; Anderson v. Nagle, 12 W. Va. 104; Murdock v. Welles, 9 W. Va. 557; Hart v. Haynes, 1 Va. Dec. 206; Campbell v. Nonpareil Co., 75 Va. 295; Powell v. .Bell, 81 Va. 225. See also, foot7 note to Withers v. Carter, 4 Gratt. 409, and Eidson v. Huff, 29 Gratt. 345. See generally, monographic note 
        on “Judgments” appended to Smith v. Charlton, 7 G-ratt. 425.
      Same — Same — Between the Parties. — It is well settled in Virginia that an unrecorded conveyance is good as between the parties to the instrument and their representatives. In re Wynne. Fed. Cas. No. 18,117, citing Glazebrook v. Ragland, 8 Gratt. 8S2; IP Clare, v. Thistle,2 Gratt. 182; Wiley v. Givens, 6 Gratt. 277; Johnston v. Slater, 11 Gratt. 321.
      Principal Case Distinguished — Equitable Title. — The principle of Withers v. Carter, 4 Gratt. 416, and Floyd v. Harding, 28 Gratt. 401, is, that the purchaser having a good equitable title prior to and independent of the writing, will not forfeit it merely because he may afterwards attempt to consummate his right by a deed or title bond. In other words, when there is a parol agreement under which the purchaser is in possession, and which is valid without a writing, the subsequent execution of a writing cannot invalidate the title previously acquired without it. This principle is adverted to and relied upon in Withers v. Carter, 4 Gratt. 416. as distinguishing that case from .if Glare ii. Thistle, 2 Grail. 182.
      
      The principal case is cited in this connection in Eidson v. Huff, 29 Gratt. 345; Delaplain v. Wilkinson, 17 W. Va. 265, 268; Pack v. Hansbarger, 17 W. Va. 328, 334; Anderson v. Nagle, 12 W. Va. 105, 108; Snyder v. Martin, 17 W. Va. 289.
      See also, Snyder v. Botkin, 37 W. Va. 355, 16 S. E. Rep. 591; Campbell v. Nonpareil Co.. 75 Va. 296.
      In Pack v. Hansbarger, 17 W. Va. 338, it was said : “It is true, that the equitable ground of priority, protection and relief is not admitted and administered against the positive provisions of a statute to sustain the prior against the subsequent encum-brancer, as in the case of M’ Clare v. Thistle, 2 Gratt. 182.” The principal case is cited on this point in Delaplain v. Wilkinson, 17 W. Va. 268.
    
   By the Court.

Affirm the decree.  