
    Moore’s Executor v. The Auditor.
    Tuesday, November 23, 1808.
    Hortsiage of Personalty — Recordation — Effect. — All deeds of trust and mortgages of slaves, or other personal estate are void against creditors and purchasers for valuable consideration, not having notice thereof, unless the same be acknowledged by the party, or parties, or proved by three witnesses, and thereupon duly recorded.
    Chancery Courts — Jurisdiction — Property Taken in Execution by Commonwealth. — The Courts of Chancery have jurisdiction in all cases where property taken in execution on behalf of the Commonwealth is claimed by any person under a mortgage or deed of trust, and if such mortgage or deed of trust be found not to have been duly recorded, may (notwithstanding no fraud be proved) decree the same to be void as against the claim of the Commonwealth.
    At a General Court, holden in November, 1799, a judgment was obtained by the Auditor of Public Accounts, on behalf of the Commonwealth, against John Verell, sheriff of Dinwiddle County, for a balance due from him of the taxes for the year 1798, together with damages and costs according to law. On the 4th of February, 1800, an execution was issued against the lands and tenements, goods and chattels of the said John Verell, on which the following- return was made: “April 19, 1800, executed on 697 acres of land, twenty-two negroes, waggon and team, and twenty-five head of cattle, for all which lands, slaves, and chattels, deeds of trust for the benefit of George Pegram and Robert Moore, recorded in the District Court of Petersburg, were produced by the said Pegram and Moore, who forbid the sale. The within mentioned John Verell, *has no other lands, tenements, goods or chattels, within my bailiwick, whereof I can make any part of the within mentioned sum. R. P. Downman, sheriff.”
    Two of the deeds referred to in this return were for the benefit of Robert Moore, dated the 4th of August, 1798, and recorded, on the acknowledgment of the parties, April 17th and 18th, 1799: the other (by which slaves only were conveyed) was a deed of trust in favour of George Pegram, jun. dated the 30th of August, 1799, attested by two witnesses, and recorded, on their evidence, the 19th of April, 1800.
    The Auditor filed a bill in the late High Court of Chancery against John Verell, Robert Moore, George Pegram, jun. and their several trustees, to set aside those deeds as fraudulent; alleging, too, that, if the same were bottomed on good faith, yet the claim of the Commonwealth was paramount thereto. The prayer of the bill was for a discovery of the consideration on which the said deeds were made; that if found void of consideration, they should be cancelled; that at any rate, the judgment of the Commonwealth might be preferred; and for general relief. All the defendants filed answers positively denying fraud, and setting forth valuable considerations, sufficient to authorise the several deeds.
    No depositions were taken in the cause, which being heard on the bill, answers and exhibits, on the 20th of February, 1808, the Court “being of opinion that the deeds in question, not having been recorded within the time prescribed by law, were void as to all creditors and subsequent purchasers for valuable consideration without notice, therefore decreed the same to be void as aforesaid:” from so much of which decree as related to the defendant, William Bowden, executor of Robert Moore, (who had departed this life during the pendency of the suit,) that defendant appealed to this Court.
    *George K. Taylor, for the appellant,
    observed, that the Chancellor was mistaken in saying that all the deeds were not recorded within the time prescribed by law. Pegram’s deed was in due time.
    The plaintiff in this case came into Chancery, charging fraud, which the answers denied; and no fraud being proved, the bill should have been dismissed. If the Auditor had sued for the purpose of having the deeds declared void as to creditors, &c. on the ground of their not having been recorded in time, the Court might have dismissed his bill, this being no ground for going into equity, the law having already provided for the very case. The prayer of the bill then being for relief against fraud, ought the Chancellor to have gone on to relieve on mere legal grounds? He should have dismissed the bill, reserving to the Commonwealth its right under the general law, made for its benefit and that of all other creditors.
    The Attorney-General admitted the mistake, concerning Pegram’s deed; which he said arose from an error committed by himself in drawing the bill. But this was not important; for the deed was proved by two witnesses only; whereas, under the 1st and 4th sections of the act for regulating conveyances,  three were requisite to the proof and recording of “all deeds of trust and mortgages.” True it is, the statute of frauds requires only two witnesses to conveyances of goods and chattels ; but that statute says nothing of deeds of trust and mortgages, which, it is evident, the Legislature intended to put on a different footing from other deeds. The provisions of the two acts differ in another respect. The conveyances mentioned in the statute of frauds must be recorded in the General Court, or in the Court of the County where one of the parties resides: but it is by virtue of the act for regulating conveyances, that deeds of trust, &c. may be recorded in a District Court. This deed was recorded under the last mentioned act, and must be governed by its provisions; if it was not, it was admitted to record in the improper Court.
    *As to the question whether the Chancellor ought to have decreed in favour of the Commonwealth, on the ground that the deeds had not been duly recorded, this suit was instituted under the act of Assembly,  to try the validity of those deeds; and the bill stated two grounds of relief; first, fraud; secondly, that the claim of the State under the judgment was paramount to the deeds; concluding with a prayer for general relief, which prayer was fully sufficient to cover the whole case; and indeed under the act, it was the duty of the Court to investigate, generally, the validity of the deeds.
    Mr. Taylor, in reply,
    said, that, according to the Attorney-General’s interpretation of the act for regulating conveyances, there was no provision as to the place where a mortgage of slaves in Richmond, made by a person residing in Hampton, to another in Staunton, should be recorded; for the first section relates to lands only, and directs the deeds therein mentioned to be recorded in the General Court, or the Court of that District, County, City, or Corporation, in which the land lieth.
    
      
      Mortgages— Recordation. —The principal case is cited in foot-note to Clayborn v. Clayborn. 1 Wash. 177; Jennings v. Attorney Generan 4 Hen. & M. 4.35: Roanes v. Archer. 4 Leigh 560, 584, 565; Gentry v. Bailey, 6Gratt. 60S); Twiggs y. Chevallie, 4 W. Va. 47». See monographic note on “Mortgages" appended to Porkner v. Stuart, 6 Gratt. 197.
    
    
      
       Rev. Code, 1 vol. c. 90. p. 156, 157.
    
    
      
      
         Ibid. p. 16, c. 10, s. 2.
      
    
    
      
       Rev. Code, 1 vol. c. 84, s. 31, p. 139.
    
   JUDGE TUCKER

observed that this difficulty was removed by the case of Claiborne’s Executor v. Hill, 1 Wash. 177.

Friday, November 5. The Judges delivered their opinions.

JUDGE TUCKER. Three questions arose in this cause. 1. Whether a deed of trust, or mortgage of lands, or slaves, *or other personal chattels, not proved or acknowledged within eight months from the execution thereof, be void as against creditors; and, consequently, the property thereby conveyed, liable to be taken in execution to satisfy a judgment obtained in behalf of the Commonwealth ; under the act of 1792, (Rev. Code, 1 vol. c. 90, s. 4,) concerning conveyances, which declares that all deeds of trust and mortgages, whatsoever, thereafter to be executed, shall be void as to all creditors and subsequent purchasers, unless they shall be acknowledged, or proved according to the directions of that act; and ibid. c. 84, s. 9, 10, 17, concerning the recovery of debts due to the public.

2. Whether a deed of trust of slaves or personal estate be also void as against creditors, &c. if not acknowledged by the party delivering the same, in Court, or proved by three witnesses pursuant to the first and fourth sections of the same act first mentioned, concerning conveyances.

3. Whether the Court of Chancery hath jurisdiction in cases where property taken in execution in behalf of the Commonwealth, shall be claimed by any other person, under any deed of trust or mortgage for the same, under the provisions contained in the 22d and 31st sections of the act concerning the recovery of debts due to the public. Ed. 1794, c. 84.

X am clearly of opinion that all deeds of trust and mortgages, coming under either of the above descriptions, are void as against creditors and purchasers without notice for a valuable consideration, and that the lands, slaves, or other property thereby conveyed, are liable to the Commonwealth’s execution; and finally, that the Court of Chancery hath jurisdiction in all such cases.

JUDGE ROANE

was of the same opinion.

JUDGE FLEMING.

On my first inspection of the record, I supposed that the deed from Verell to Pegram and Nicholas, conveying personal estate only, and having been admitted to record within eight months from its date, was *valid against subsequent purchasers and creditors; but upon recurring to the act of Assembly for regulating conveyances, passed in the month of December, 1792, it appears not to have been proven as the law directs.

In the 4th section it is enacted, that all deeds of trust and mortgages whatsoever, which shall thereafter be made and executed, shall be void as to all creditors and subsequent purchasers, unless they shall be acknowledged or proved, and recorded, according to the directions of the act; which directions, by the first clause of the act, are, that the deed be either acknowledged by the party or parties, who shall have sealed and delivered it, or be proved by three witnesses, to be his, her, or their act, &c. and the deed in question having been attested and proved by two witnesses only, is void as to creditors and subsequent purchasers without due notice; I am therefore of opinion, that the decree is correct and ought to be affirmed.

By the whole Court, the decree was affirmed. 
      
       Note. It appears from the record of that case, that Herbert Claiborne resided In New Kent County, and Augustine Claiborne in Sussex: that the slaves conveyed by the mortgage from Herbert to Augustine Claiborne, bearing date the 1st of February, 1783, were on a plantation in King William County: and that the mortgage, which was recorded in New Kent, (where the mortgagor resided,) was declared by the Court of Appeals to have been duly recorded. —Note in Original Edition.
     