
    Lambert v. Nanny.
    Tuesday, April 9th, 1811.
    a. Deed of Trust — Equitable Title to Land. — A debtor, holding an equitable title to land, may convey it, by deed of trust, to secure a creditor: and a court of equity, on a bill exhibited by the cestuy que trust, will compel another creditor who, with notice of such deed, (though not recorded,) has obtained a conveyance of the legal title, by means of an order from the debtor) to convey such legal title to the trustee, for the purpose of applying it to the object of the trust.
    
      2. Same — Same—Notice.--In such case, the notice is binding, if received at any time before the conveyance.
    See Blair v. Owles, 1 Munf. 88, and Hoover v. Don-ally, 3 H. & M. 316. to the same effect.
    3. Same — Same—Suit in Equity — Parties.—A debtor, holding an equitable title to land, having conveyed it by deed of trust, to secure a creditor, and having afterwards caused a conveyance of the legal title to be made to another creditor, who had notice of the prior deed, need not be a party to a bill in equity exhibited by the cestuy que trust to compel a conveyance of the legal title, and per-iormance of the trust.
    The appellee being a creditor of a certain John Quinn to the amount of 1601. 17s. 6 l-2d., and also bound as his security in two bonds, one to Andrew Kennedy for 391 dollars and 72 cents, and another to David M’Cormack for 333 1-3 dollars, the said John Quinn, for the purpose of securing the payment of the first-mentioned sum, and indemnifying the appellee as his security, on the 19th day of July, 1798, executed a trust deed to a certain William Graham, as trustee, conveying to him (besides many articles of personal property) a house and lot in the town of Liberty, which Quinn had purchased of a certain John Lynch and paid for, but without receiving a conveyance, or any note or memorandum in writing of the contract.  The trust deed from Quinn to Graham for Nanny’s benefit, was proven, by two of the three subscribing witnesses thereto, in the ^county court of Bedford, on the 24th day of July, 1798, but was not recorded.
    On the 6th, day of May, 1799, the appellant, George Lambert, who was also a creditor of Quinn, obtained a written order from him to Lynch, in whom the legal title was, directing him to convey the said house and lot to the appellant; which was accordingly done by deed, bearing date the 13th day of July 1799, and-duly proved and admitted to record on the 22d of the same month. Whereupon Nanny the appellee filed his bill in chancerji in the county court of Bedford against George Lambert and William Graham, (the trustee,) to compel a conveyance from the former, and a due execution of the trust by the latter. The bill stated that the plaintiff had been compelled to pay the debts for which he was bound as security for the said Quinn.
    The answer of Lambert denied that he had any knowledge of the plaintiff’s claim at the time he received the conveyance from Lynch; but the contrary was fully proved by depositions, showing that, although he might have known nothing of the trust deed when he made the arrangement with, and obtained the order from, Quinn, he was fully apprized of it before he received the conveyance from Lynch.
    The county court was of opinion “that John Quinn had the power and did convey the lot, in the town of Liberty, in the proceedings mentioned, by the trust deed to Graham; and that the defendant George Lambert purchased the same, subject to the equity of the said conveyance.” It was therefore adjudged, ordered, and decreed, that the said Lambert (having received the legal title from Lynch) do convey the same to the said William Graham, the trustee aforesaid; that he the said trustee proceed to sell the said lot, with its appurtenances, under the limitations in the said trust deed; and that the said Lambert pay to the complainant his costs.
    *Upon an appeal, this decree was affirmed by the superior court of chancery for the Richmond district; whereupon the appellant again appealed.
    Wickham, for the appellant,
    made three points.
    1st. Proper parties to the suit were wanting. Quinn is materially interested. The debts for which the deed of trust was given may have been satisfied, and he may have the evidences of payment. He ought, therefore, to be a party, to afford him an opportunity of showing this, and of thereby protecting himself from Lambert’s claim: for if Lambert loses the land, Quinn is responsible to him. Kennedy and M’Cormack, the creditors mentioned in the deed of trust, should have been parties also; because the money due to them may not have been paid.
    In support of this point, Mr. Wickham cited Harrison v. Harrison, 1 Call, 428; Hoover v. Donally, 3 H. & M. 316; Wag-goner v. Gray, 2 H. & M. 603; Cooper’s Eq. PI. 33 — 37; Wyatt’s Pr. Reg. 299; Call v. Scott, MS.
    2d. Admitting that Lambert had notice of the claim of Nanny before he obtained the legal title, he had no such notice before he made his arrangement with Quinn. His ca^-e, therefore, resembles that of a subsequent mortgagee, not having notice of a prior mortgage, and afterwards purchasing a mortgage precedent to both; in which case the rule is established that the last mortgagee shall hold the land till he be satisfied what is due upon both securities; though he had notice of the intervening, before his purchase of the prior mortgage. S Bac. 55, (Gwill. edit.) A .subsequent purchaser (though without deed) stands on the same footing as a subsequent mortgagee. Ibid. 57.
    3d. If Lambert cannot protect himself as a purchaser without notice, he is entitled as a creditor; the deed of trust having never been recorded,  The clause in the *act of assembly makes a deed not recorded,- void against “any creditor,” whether with notice or without.
    Samuel Taylor and Munford, contra,
    1st. There was no necessity to make Quinn a party; because, with respect to the subject in controversy, he stands indifferent between the present' parties; it being certain that the property in dispute is liable to one or the other; and the only question being which of them has the preference; a point in which he is not interested. Quinn is responsible, indeed, if Lambert loses the land: but he is equally so if Nanny should lose it. And should he prove that Nanny’s deed of trust was satisfied, he would not be benefited; for the only effect would be to remove an obstacle to Lambert’s title. If Lambert wished the assistance of Quinn to defeat the plaintiff, he might have taken his deposition, or filed a cross-bill, and made him a party; Nanny was not bound to do so, since he wanted no decree against Quinn, but against the property only.
    Neither was there any necessity to make Kennedy and M’Cormack parties. If Nanny has not paid them the debts for which he was surety, they have still their remedy against him.
    2d. Lambert was a purchaser with full notice of Nanny’s equitable title; it being in proof that he had such notice before he obtained the conveyance, 
    
    3d. The act of assembly relating to deeds not recorded does not apply; for Nanny and Lambert are both creditors of Quinn ; and Nanny has the preference in equity, by virtue of his prior deed, (of which Lambert had notice,) though not recorded.
    
      
       Deeds of Trust. — See monographic note on "Deeds of Trust" appended to Cadwallader v. Mason, Wythe 188.
    
    
      
       Note. The statute of fraud was not pleaded in this ease, nor in any way relied upon. In the deed Lambert admitted the validity of the contract between Quinn and Lynch, because he claimed under it hi mself. That the statute does not apply in eqii ity where the parties admit the contract, and do not insist upon thestatute; see 1 Font). b. 1, c. 3, s, 8. and tile notes thereto; and 3 H. 4 M. 162, part of Judge Tüokmh's opinion in Argenbright v. Campbell and Wife. — Note in Original edition.
    
    
      
       Rev. Code, vol. 1, c. 90, s. 1, p. 156,157.
    
    
      
       Hoover v. Donally, 31-I. & M. 816.
    
   Saturday, April 20th. The president delivered the opinion of the court that the decree be affirmed.  