
    Caroline Nelson vs. Charles E. Henry et al.
    Equity. No. 7968.
    5 Decided March 20, 1883.
    
      I Justices Cox and Jambs sitting.
    1. A deed of bargain and sale of real estate not recorded within six months from its date, and containing no trust expressed upon its face, is void against creditors whose judgments were obtained prior to its record, although subsequent to the date of the deed.
    2. While it is true that a judgment creditor does not levy upon any other or better title than that which the debtor has, and that he takes it subject to all outstanding equities, yet the Statute of Frauds has made it necessary that any trust attaching to property in the hands of an ostensible, owner shall be expressed in writing.
    3. The rule established by the Statute of Frauds and the registry laws-is, that the creditor is entitled to pursue the ostensible title even though-it may not be the real title of the debtor.
    STATEMENT OE THE CASE.
    Appeal from a decree of the Special Term.
    Daniel Nelson, being seized and possessed of lot 29, in ar subdivision of square 893, in the District of Columbia, conveyed the same on the 25th day of May, 1877, by a deed •duly recorded, and absolute on its face, to A. A. Marr, the intention being to vest the title in Nelson’s wife, Caroline, by a deed to be subsequently made to her by Marr. In pursuance of this intention, Marr, on the 6th of June, 1877, executed to her afee-simple deed of the property, but did not place it upon record until the 2d day of August, 1881. In the meantime a judgment was obtained on the 6th of April, 1881, by Ring-wait & Hack against Marr, and on the 30th of August, 1881, a fieri facias was issued thereon, and a levy made by the United States marshal, Charles S. Henry, upon the property described. Whereupon Catherine Nelson filed this bill, setting forth the above facts, and claiming the property as her separate estate, and alleging that no title existed in Marr, the conveyance having been made to him as trustee for the purpose of conveying the property to plaintiff. The bill concluded with a prayer that the judgment be declared no lien upon the property, and that the defendants be perpetually enjoined from selling the same, and for general relief.
    The answer of the defendants, Ringwalt & Hack, denied that the property was the separate estate of plaintiff; admitted the execution of the deed from Nelson to Marr, but denied that he held the same as trustee for the purpose of making a conveyance to plaintiff, or for any other purpose than that expressed upon the face of the deed itself. They averred that said declaration of trust was not in writing, and claimed the benefit of the Statute of Frauds ; that the indebtedness represented by said judgment was contracted by Marr after said conveyance to him, and while the records showed that he was the legal owner thereof, and on the faith of such ownership unusuaL forbearance and indulgence was granted him by defendants touching said indebtedness, both before and after said suit at law was begun, and even after said judgment was obtained; that they incurred great expense in bringing said suit at law, and in marshal’s fees, advertising, etc., which they would not have done had they received notice that said Marr had no interest in said property.
    The answer of the defendant Marr admitted the substantial allegations of the bill. The defendant Henry disclaimed any knowledge of the material parts thereof, and neither denied nor admitted the same ; he admitted that he held the office of marshal, and that he levied on said real estate by virtue of said fi. fa.} and caused the same to be advertised for sale.
    The facts, as stated by the bill, were substantially proved by the evidence; and on the hearing the court below passed a decree enjoining the defendants as prayed and declaring the judgment no lien upon the property. From this decree defendants appealed.
    T. F. Miller and Charles Pelham for complainant.
    C. M. Matthews and E. A. Newman for defendants :
    The trust attempted to be established in this cause is an express trust, and not a “trust or confidence” contemplated by section 8 of the Statute of Frauds.
    As to what are resulting trusts see Browne on Statute of Frauds, secs. 80 and 84; Parker’s Heirs vs. Bodeley, 4 Bibb, 102; Osterman vs. Baldwin, 6 Wall., 123.
    Being an express trust, under the Statute of Frauds, it must be “ manifested or proved by some writing signed by the party who is by law enabled to declare such trusts.” Statute of Frauds, sec. 7.
    Assuming, for the sake of argument, that the trust alleged in the bill could be proved by parol, the testimony in this cause is insufficient to warrant a court in passing a decree, the well-settled principle being that where the defendant in express terms negatives the allegations in the bill, and in the evidence only one person affirms what has been so negatived, the court will not make a decree. 1 Dan’l Ch. P., 843 (note 7); Morrison vs. Shuster, 1 Mackey, 190.
    The complainant has no separate estate in said real estate, having according to her bill, acquired the same during her marriage by gift and conveyance from her husband. She can, therefore, maintain no suit in reference thereto. Revised Statutes (D. C.), sections 727-8-9.
    The judgment rendered April 6th, 1881, is a prior lien to the deed from Marr to Nelson, dated June 6, 1877, and recorded August 2, 1881. Revised Statutes (D. C.), secs. 446, and 447; Act of Congress, April 29, 1878, Statutes at Large, vol. 20, p. 39; Hill vs. Paul, 8 Mo., 482; Reed vs. Austin Heirs, 9 Mo., 722; Knell vs. Building Association, 34 Md., 71; Helm vs. Logan, 4 Bibb, 78; Sicard vs. Davis, 6 Peters, 124; Freeman vs. Douglass, No. 6,071, Eq. Doc. 18.
    Without multiplying authorities, we assert that in the following States the principle has been adopted that a deed or mortgage, though valid without record, as between the parties and their heirs, is not valid as against even the process of the grantor’s creditors without notice, except from the time of recording, viz., Ohio, Massachussetts, New Hampshire, Vermont, Khode Island, Minnesota, California, Colorado, Kansas, Arkansas, Kentucky, Tennessee, Louisiana, Texas, Florida, North Carolina, Virginia and West Virginia.
    In all other States where a different doctrine prevails, the ■statutes do not protect a judgment creditor of the grantor from the effect of a prior unrecorded deed or mortgage as the statute in this District does.
   Mr. Justice Cox

delivered the opinion of the court.

In this case we are constrained, with no little reluctance, to reverse the decision below and award the decree in favor of the judgment creditor. We feel reluctance in doing this because the case is a very hard one. A man named Nelson, represented as a poor and ignorant man, conveyed certain property to a third party, with the understanding that it ■should be reconveyed to his (Nelson’s) wife. The deed from Nelson was put on record, but the deed to his wife was not recorded for three years after its date. In the meantime, certain parties obtained judgment as creditors against the grantee, and levied on the same property, and this bill was filed by Mrs. Nelson to restrain action on that judgment. Under the law in regard to registration, as it has been held by the Supreme Court of the United States, and by a number of other courts, we are satisfied that this deed back to Mrs. Nelson must be treated, as regards the judgment creditor, as if it had no existence ; it has no operation as against such creditor, except from the time it was actually recorded. If it had been recorded within six months, it would have operated from its date ; but it was not recorded for over three years, and, therefore, as against a judgment creditor, it is simply void, and the property must be regarded as if it had remained in the trustee, and was his property. It is true that the judgment creditor does not levy upon any ■other or better title than that which the debtor has, and that he takes it subject to all outstanding equities ; but the Statute of Frauds has made it necessary that any trust attaching to property in the hand of an ostensible owner, shall be expressed in writing. We have sought to find, in the deed back to Mrs. Nelson evidence of a trust for her benefit, but we have been unable to find it. It purports to be simply a transaction of bargain and sale for a money consideration ; if that be evidence of a trust, then in all such cases, where deeds have been held void as against creditors, they ought to have been held to contain evidence of a trust: which has not been the case. This deed is no evidence of anything beyond what it purports on its face to be; and taking the Statute of Frauds and the registry laws together, the rule which they establish is, that the creditor is entitled to pursue the ostensible title, even though it may not be the real title of the debtor. The case is a hard one, but at the same time it is no harder than if the trustee had sold the property to a third party for value, without notice; in which case there is no question that the equity of the purchaser would prevail over that of the cestui que trust. The decree is set aside and the bill dismissed.

[Note. — A motion for leave to reargue this case was, on .June 27, 1888, overruled.]  