
    Mary Ring and Charles H. Richardson, Respondents, v. Daniel Steele and Elijah Smith, Appellants.
    Conveyance by A to B, with acknowledgment of receipt of purchase-money, but without payment in fact of any part thereof.
    Subsequent conveyance of same premises by A, to his father, A, sen., with acknowledgment as before, and proof of part payment, also proof of notice to A, sen., of prior conveyance. Conveyance by A, to A, sen., first recorded. Subsequent conveyance by A, sen., to C.
    
      Held, that conveyance to B was good and valid, and nowise impaired by non-payment, for which B was 'of course liable.
    Conveyance to A, sen., being with notice to him of prior conveyance to B, was a fraud upon the rights of B. A, sen., was a purchaser for value, as proved, but not in good faith.
    
    Had A, sen., purchased without notice of previous conveyance, his deed, being first recorded, would have acquired priority over that of B, but this was defeated by evidence of his purchase with notice of prior conveyance to B.
    Appeal from the Supreme Oourt. The action was for the recovery of an undivided half of four acres of land in the town of Java. The cause was tried at the Wyoming Circuit, before Mr. Justice Marvin. Each of the parties claimed under Joseph Steele, the previous owner of the premises.
    It appeared on the trial that on the 16th of February, 1852, the latter conveyed an undivided half of the four acres to the plaintiffs in consideration of $250, the payment of which was acknowledged in the deed, though no payment was made in fact.
    On the 18th of March following, Steele and his wife executed a conveyance of the entire premises to the defendant Daniel Steele, in consideration of $260, the payment of ' which was acknowledged in the deed, the amount actually paid at the time being fifty dollars. When this deed was executed, that given to the plaintiffs had not been recorded, b,ut the defendant Daniel Steele, who was the father of the grantor, purchased with notice of the prior conveyance.
    
      The deed to the plaintiffs was recorded on the 27th of March, 1852, three days after the registry of the deed to Daniel Steele. The latter, on the 15th of March, 1858, conveyed the premises to the defendant Smith, in consideration of $250, the receipt of which was acknowledged on the face of the deed.
    The judge held that the mere recital by Joseph Steele, in the conveyance- to his father, of the payment of the consideration, was not proof that the latter was a purchaser for value, as against the prior grantee; but the fact was established by other evidence, which was met by proof of actual notice of the previous deed.
    The defendants offered to prove that the defendant Smitli purchased from the defendant Steele, without notice of the deed to the plaintiffs, except such notice as the law implied from the registry of that conveyance. The" evidence was rejected. Exceptions were taken to these rulings, and also to the refusal of the court to hold as matter of law that the plaintiffs were not entitled to recover.
    The jury found for the plaintiffs, and the judgment entered upon the verdict was affirmed at General Term in the eighth judicial district. The defendants appealed to this court.
    
      Wm. H. Greene, for the appellants.
    
      L. W. Thayer, for the respondents.
   Porter, J.

■ The effect of the deed to Bing and Bichardson was to invest them with title to an undivided half of the premises. By accepting the grant they became liable for . the agreed price; and the validity of the transfer was not affected by the non-payment at the time of the purchase-money. (Barnum v. Childs, 1 Sandf. 58 ; Meriam v. Harsen, 2 Barb. Ch. 232.). The subsequent conveyance of the premises by the grantor to his father, was a fraud upon the rights of the previous grantees. Through their neglect to put on record the evidence of tlieir title, and the superior vigilance of the defendant Steele, the deed of the latter would have acquired priority, if he had bought without notice of the antecedent grant. (1 R. S. 756, § 1.) He paid a valuable consideration; but, as he did so with knowledge of the previous conveyance, he was not a purchaser in good faith, and cannot claim the protection of the recording act. The defendant Smith occupies no better position. He is chargeable with constructive notice of the deed under, which the plaintiffs claim, as it was recorded before he made his purchase. ( Van Rensselaer v. Clark, 17 Wend. 25; Jackson v. Post, 15 id. 588.)

It is unnecessary to consider the question, whether a mere recital by one who has previously parted with his title, that he hast received value from a subsequent purchaser, is evidence pf that fact as against a previous grantee; for in this ease the proof is clear that Steele was a purchaser for value, but with full notice of the plaintiffs’ rights.

The record discloses no error prejudicial to the defendants, and the judgment should be affirmed, with costs.

All the judges concurring,

Judgment accordingly.  