
    TEN EYCK v. WITBECK.
    
      N. Y. Court of Appeals ;
    
    October, 1892.
    [Reversing 15 N. Y. Supp. 418 ; S. C., 39 State Rep. 634.]
    1. Recording deeds ;purchaser.] A conveyance for a nominal consideration, or for a good consideration depending merely upon love and affection, etc., does not make the person to whom such conveyance is made a purchaser entitled to priority under the recording act.
    
    2. The same.] A deed by a father to a daughter conveying a farm. worth $20,000 recited a consideration of $10, and the annual payment to the father during his lifetime of the entire net proceeds of the farm, and after his death of a part of the proceeds, in certain portions to his wife and other daughter.—Held, that neither the nominal consideration of $10, although it had actually been paid ; nor the consideration to pay over the proceeds, although a good consideration between the parties, were sufficient to make the daughter “ a purchaser in good faith and for valuable consideration ” within the meaning of the recording act,* so as to entitle her deed to prevail over a prior unrecorded conveyance by the father.
    3. The same.] Whether a purchaser can be considered a purchaser for value as to the entire title, where the consideration, is partly valuable and partly good, Query.
    
    4. Cases disapproved,] Webster v. Van Steenbergh, 46 Barb. 211; and Hendy v. Smith, 49 Hun, 510, disapproved.
    Appeal by plaintiffs from a judgment of the General Term of the Supreme Court, third department, affirming a judgment for defendants entered upon a verdict, and from an order denying plaintiffs’ motion for a new trial.
    Action in the nature of ejectment brought by Maria Ten Eyck and Cornelius H. Slingerland against Catharine A. Witbeck and others.
    
      The facts are fully stated in the opinion.
    
      J. H. Clute and Nathaniel C. Moak (Wm. C. McHarg, attorney), for appellants.
    I. The words “ purchaser in good faith,” as used in the statute relating to the recording of deeds, are to be interpreted in their ordinary sense and do not include one who, on the conceded facts, is not the real purchaser, but one who acquires title for a nominal consideration as a gift or advancement (citing Pratt v. Foote, 9 N. Y. 463 ; 10 Id. 599 ; Beach v. Smith, 30 Id. 116; aff’d 53 Super. Ct. 381 ; Wright v. Nostrand, 103 N. Y. 688; Van Rensselaer v. Clark, 17 Wend. 25 ; Grimstone v. Carter, 3 Paige, 421 ; Fort v. Burch, 6 Barb. 60 ; Raynor v. Wilson, 6 Hill, 469; Stuyvesant v. Hall, 2 Barb. Ch. 151 ; Kohl v. United States, 91 U. S. 367; Devens, Atty. Gen., 16 Opin. Atty.-Gen. U. S. 326; Black’s Law Dict., tit. “ Purchaser;” Bouv. Law Dict., tit. “ Purchaser;” Burrell's Law Dict. tit. “ Purchaser ;” Whart. Law Dict., 7th ed. tit. “ Purchaser ;” Bank for Savings in N. Y. v. Frank, 45 Super. Ct. 404; Delancey v. Stearns, 66 N. Y. 157 ; Ellis v. Herrman, 90 Id. 466 ; Ring v. Steele, 4 Abb. Ct. App. Dec. 68 ; Spicer v. Waters, 65 Barb. 227; Black. Law Dict. tit. “ Bona fide purchaser;” Westbrook v. Gleason, 79 N. Y. 23; Aubuchon v. Bender, 44 Mo. 560; Snodgrass v. Ricketts, 13 Cal. 356; Way v. Lyon, 3 Blackfords [Ind.] 76; Rhoades v. Canfield, 8 Paige, 544; Spicer v. Waters, 65 Barb. 227; Pickett v. Barron, 29 Barb. 505 ; Frost v. Beekman, 1 Johns. Ch. 288 ; Boone v. Chiles, 10 Pet. 177 ; Wormley v. Wormley, 8 Wheat. 449; Brown v. Welch, 18 Ill. 346; Roseman v. Meltes, 84 Id. 297; Spurlock v. Sullivan, 36 Texas, 516; Anderson’s Dict, of Law, title “ Faith,” “ Good faith,” p. 446; 1 Abb. Law Dict. tit. “ Good faith ;” Canajoharie Nat’l Bank v. Diefendorf, 123 N. Y. 191 ; Fullenwider v. Roberts, 4 Dev. & Bat. 278 ; Upton v. Bassett, Cro. Eliz. 445 ; Doe v. Routledge, Cowper, 705 ; Worthy v. Caddell, 76 N. C. 82; Lyon v. Wing, 20 
      Weekly Dig. 144; Brown v. Valkening, 64 N. Y. 76; Wood v. Chapin, 13 Id. 509 ; Cook v. Travis, 20 Id. 400; Webster v. Van Steenbergh, 46 Barb. 211).
    II. The clause in defendants deed that the net rents .and profits of the real estate conveyed should during his life be paid to him, and after his death one-third to his widow and a portion to plaintiff Marie during her life, did not make defendant a purchaser in good faith and for valuable consideration (citing Stockwell v. Couillard, 129 Mass. 231; Boone Real Prop. §§ 106, 303 ; Cunningham v. Knight, 1 Barb. 399; Langdon v. Mayor, 6 Abb. N. C. 321 ; Gale v. Coburn, 18 Pick. 397).
    
      Matthew Hale (C. M. Barlow, attorney), for respondents.
    I. Defendant, Catharine Witbeck, was a purchaser in good faith and for valuable consideration (citing Hendy v. Smith, 49 Hun, 510; Webster v. Van Steenbergh, 46 Barb. 211; Wood v. Chapin, 13 N. Y. 509; Jackson v. Peek, 4 Wend. 302).
    II. The other consideration expressed in the deed, namely, the obligation on the part of the grantee to collect the proceeds of the property, to pay expenses and taxes and to pay over the proceeds, is sufficient to sustain the •claim that the grantee was a purchaser in good faith and for valuable consideration (citing Trotter v. Hughes, 12 N. Y. 74; Belmont v. Coman, 22 Id. 438; Spalding v. Hallenbeck, 30 Barb. 292, aff’d in 35 N. Y. 204; Jackson v. Pike, 9 Cow. 69 ; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 ; Bowen v. Beek, 94 Id. 86 ; Post v. West Shore R. R. Co., 123 Id. 580 ; 3 Washburn on Real Property, 4th ed. 370 ; Young v. Ringo, 1 Mon. 32 ; Howe v. Warnack, 4 Bibb. 234.
    
      
       1 R. S. 756 (4 Id. 8th.ed.,p. 2469), § 1. See note at the end of this case.
    
   Maynard, J.

The single question presented by this .appeal relates to the rights of the parties under the recording act. The property in controversy is a farm in the town of Coeymans, concededly worth $20,000. Peter W. Ten Eyck is th.e common source of title. The plaintiffs claim under a deed prior in date; the defendant, Catharine Witbeck, under a deed prior in registry. The plaintiff’s conveyance is declared by statute to be void as against the defendant, providing she was a purchaser in good faith and for a valuable consideration. In the sense that she had no notice of the existence of the prior deed, the bona fides of her purchase is not disputed. The issue is therefore narrowed to the question whether she was a purchaser for a valuable consideration.

The deed was executed July 7, 1877. The grantor was her father, and it recited a consideration of §10 and the annual payment to the father during his lifetime of the entire net proceeds of the farm, and of one-third of such proceeds to his wife during her lifetime, if she survived him, and of one-third thereof to another daughter for the same period, and of one-half of such proceeds to her after the death of both parents. The grantee was given power to sell the property after the mother’s "death, and, if sold, the use of one-half of the proceeds of sale should be paid to the sister during her life; but the principal should be managed and controlled by the defendant.

It was proved that $10 in money was actually paid by her to her father at the time of the execution of the deed. Peter Ten Eyck’s family then consisted of his wife and two daughters, who lived with him upon the farm, except the defendant, Mrs. Witbeck, who lived with her husband upon another farm in the same town. Immediate possession was not taken by her under her deed, but her father, with the rest of the family, continued to reside upon the farm, and, by himself and tenants, to manage and control it until his death, in 1883, after which it was in the same manner occupied by the mother and unmarried daughter until the death of the mother in 1885. In September, 1871, Ten Eyck, through an intermediate grantee, conveyed this property to his wife, who, in January, 1883, conveyed it to the plaintiffs. The defendant’s deed was recorded December 5, 1879, but Mrs. Ten Eyck’s deed, nnder which the plaintiffs claim, was not recorded until February 21, 1883. After Mrs. Ten Eyck’s death the defendant took possession, and the plaintiffs brought this •action in ejectment.

The defendant challenged the validity, of the plaintiff’s title upon the ground of the mental incompetency of Mr. Ten Eyck, and the undue influence of his wife over him when the deed to her was executed, and of its alleged nondelivery, as well as the non-delivery of the deed from Mrs. Ten Eyck to the plaintiffs ; and upon the further ground that Mrs. Ten Eyck’s deed was void as to the defendant under the recording act.

The trial court held that the defendant was not a purchaser for a valuable consideration, and was not, therefore, within the protection of the statute ; but submitted to the jury the question whether the deeds under which plaintiffs claimed had ever been delivered, and whether Peter W. Ten Eyck was of sound mind, and free from undue influence, when he executed the conveyance to his wife.

The verdict was for the defendant, and the General Term intimate very plainly that, in their opinion, it was not supported by the evidence, and that they would have set it aside were it not for the decision of the General Term in the fifth department in the case of Hendy v. Smith (49 Hun, 510; 2 N. Y. Supp. 535), which holds that a grantee for a consideration of one dollar paid is a purchaser for a valuable consideration, as the terms are used in the recording act. They felt constrained to regard this authority as controlling, and to hold, as matter of law, that the defendant had a superior title because of the prior record of her deed, and that the verdict and judgment were therefore right. The order of affirmance states that, but for the recording acts, the judgment appealed from would have been reversed.

From the relationship of the parties, the recitals in the defendant’s deed, and the circumstances attending its execution, as disclosed by the evidence, it is, we think, apparent that she cannot be regarded as a purchaser for a valuable consideration, so as to avoid the effect of the plaintiff’s prior conveyance. While every legal mode of acquisition of real property, except by descent, is denominated in law a “ purchase,” and the person who thus acquires it is a purchaser, it is evident that the word is used in this statute in a much more limited sense. It is there applied only to such grants of real estate as are obtained for money, or some other valuable consideration. It denotes a buyer of property, and has reference to one ■of the actors in a transaction of bargain and sale, which is presumably controlled by commercial considerations. We think it would be a perversion of language to say that a father, who had conveyed to a daughter property of the value of $20,000 for no greater sum than $10 paid, had sold the property to his child, or that she had bought it of him. The transfer would be recognized by the popular, as well as the judicial, mind, as possessing all the ■essential qualities of a gift. It has been frequently so held. In Hayes v. Kershow (1 Sandf. Ch. 265) the consideration recited in the deed was one dollar paid, and love and affection, and the vice-chancellor said that this nominal sum was not such a valuable consideration as would support a bargain and sale. In Duvoll v. Wilson (9 Barb. 487), the conveyance was to the grandchildren of the grantor, and recited a consideratio.n of five dollars paid; and it was held that it was not sufficient to support a covenant to stand seized. In Morris v. Ward (36 N. Y. 587), the conveyance was to a granddaughter, and recited a consideration of one dollar paid and natural love and affection ; and this court held that it was an advancement, and not a sale, and that the grantee took as donee, and not as purchaser; and that it was competent, when the whole instrument shows the money consideration to have been intended as nominal merely, to give effect to :such proof, and to the intention which it indicates. It is true that in these cases it was assumed or conceded that, the nominal money consideration expressed had not been actually paid, but we do not understand that any emphasis was placed upon that fact. The decision in each case seems to have been put upon the ground that the nominal was not the real consideration.

In the case before us every feature of the transaction is indicative of a gift. The grantor was eighty-two years of age, and the grantee was his eldest daughter. He was-evidently conscious that the end of his life was near, and desired to make some final disposition of his real property for the benefit of his family through the medium of this-daughter, in whom, for the time being, he seems to have had especial confidence. If in the full possession of his-mental faculties, he must have known that he had previously conveyed the property to his wife. Apparently there was a struggle between the different members of his household for the possession and control of the farm, which destroyed that quietude and repose so grateful to-old age. He may have thought that in this way he-could appease both factions, trusting that each might remain in ignorance of the status of the other until he-died, when the result of the complications which he had created would be a matter of indifference to him. But we need not speculate as to his motives. We must deal with the fact of the execution of the later deed as we find it on the record, and the extent and quality of its-consideration as shown by the proofs. It is plain that the real consideration which the grantor had in mind when he made the conveyance was not the receipt of an insignificant sum of money, but the provision which he was thereby making for the benefit of the different persons who composed his family, and all of whom had just claims upon his bounty. By its terms no one in fact would enjoy the use of the property until after his death,, for he reserved to himself the entire net rents and profits-■during his lifetime. The instrument was therefore most. emphatically of the character, and intended to take the place,of the usual testamentary distribution of a decedent’s property.

So far as the cases of Webster v. Van Steenbergh (46 Barb. 211) and Hendy v. Smith (supra) hold a contrary doctrine, they do not have our approval. On the other hand, the cases of Fullenwider v. Roberts (4 Dev. & B. 278); Worthy v. Caddell (76 N. C. 82 ;) Upton v. Basset (Cro. Eliz. 445); Doe v. Routledge (Cowper, 705); and Metcalfe v. Pulvertoft (1 Ves. & B. 180),—so far as they hold that a purely nominal consideration is insufficient to protect the subsequent purchaser, are in harmony with the views we have expressed.

We deem it unnecessary to undertake to determine here what degree of adequacy of price is required to uphold a subsequent deed, first recorded. Upon this branch of the case we have no occasion to go further- than to hold that a small sum, inserted and paid, perhaps because of a popular belief that some slight money consideration is necessary to render the deed valid, will not, of itself, satisfy the terms of the statute, where it appears upon the face of the conveyance or by other competent evidence that it was not the actual consideration. Where the subsequent conveyance is a mortgage, and only part of the consideration paid, there can be but little difficulty in properly adjusting the equities of the parties, for the mortgagee can then be considered as a bona fide purchaser pro tanto, and the mortgage enforced to the extent to which he has parted with value upon the faith of it (Merritt v. Northern Railroad Co., 12 Barb. 605 ; Pickett v. Barron, 29 Id. 505; Williams v. Smith, 2 Hill, 301; Stalker v. McDonald, 6 Hill, 96; Peabody v. Fenton, 3 Barb. Ch. 451). But in case of a deed having a mixed consideration—that is, partly valuable and partly good-such a rule would be difficult of application, if not impracticable; and no case has been cited where the question has arisen in that form. There is an obiter remark by Judge Hand, in Merritt v. Northern Railroad Co., that such a grantee may be considered a purchaser for value as to the entire title. The point, however, is not involved in a case like the present, where the money consideration is purely nominal, or infinitesimal in amount, when compared with the value of the property granted, and is shown not to have been the real inducement of the grant. It "is proper to observe here that the good faith of a purchaser may be seriously impaired, if not destroyed, by the inadequacy of the price at which the property is offered by a person claiming to be its owner. If the sum which the seller is willing to take is grossly disproportionate to the value of the thing which is the subject of the negotiation, it is strong proof of a defective title, and sufficient to put a prudent man upon inquiry ; and, if the buyer neglects to diligently prosecute such inquiry, he may not be awarded the standing of a bona fide purchaser. It may be said that this rule would not hold good where the relation of parent and . child exists, because of the natural and laudable desire of the former to share his worldly possessions with the latter, which is merely equivalent to saying that the actual consideration in such cases is not a pecuniary one.

It is strenuously urged by counsel that the considerations expressed in defendant’s deed, other than money, are sufficient to invest her with the title of a purchaser for value. It is not important to determine how these provisions should be construed; whether as reservations out of the property granted, or as creating a trust for the benefit of the grantor and others, or as implied covenants on the part of the grantee to annually account for the net income of the property iq the manner specified. Unquestionably, as between the parties, the defendant, by the acceptance of the deed, became bound to observe its conditions, and to render to the beneficiaries named their respective shares of the net rents and profits of the farm. But this was simply an obligation to account for the use •of the property, which was the subject of the grant; and, while it might be a good consideration for the conveyance, it was in no respect a valuable consideration, as that term has been judicially defined. If for any cause the grant fltself becomes nugatory, the covenant ceases to be operative. In order to give effect to the promise, effect must be given to the deed; and if the defendant is deprived of .the land she is relieved from the obligation which she assumed on the faith of the grant (Dunning v. Leavitt, 85 N. Y. 30; Rice v. Goddard, 14 Pick. 293).

There is a wide distinction between a good and a valuable consideration when the latter term is used in the statutes defining the rights of a subsequent purchaser. Blood, love and affection, future support, a precedent indebtedness, and the like, are, either of them, sufficient as a consideration between the parties ; but neither is potential enough to override the prior equities of others in the property conveyed. The phrase “ a purchaser in good faith and fora valuable consideration,” is not peculiar to the recording act, but is one of frequent occurrence in the statutes. It can be found inthe chapters on trusts (4. Rev. St. 8th ed. p. 2437, §§ 5 r, 54, on powers ; Id. p. 2451, § 132) ; on conveyances (Id. p. 2452, § 144) ; and on frauds (Id. p. 2593, § 5). It is an expression which has been borrowed from the language of courts of equity, and should be interpreted in the sense in which it is there understood. As pointed out by Chancellor Walworth in Dickerson v. Tillinghast (4 Paige, 215), it has a curious and instructive history in connection with its introduction into the recording act. The English registry law made the prior unrecorded deed wholly void as against the subsequent grantee, without reference to the question of notice or the payment of value. Immediately the court of chancery, with characteristic diligence, sought to relieve the earlier grantee from the hardship which the enforcement of the letter of the law might inflict, and, while respecting the command of the statute, which made his deed void at law, it invested him with an equitable title, which it declared should prevail over the legal title of the subsequent purchaser, if it appeared that he had notice of its existence, or did not part with value at the time of the purchase. This rule of judicial construction was incorporated by the legislature into the lex scnpta in almost the identical words in which it had been phrased by courts of equity. A valuable consideration has been defined by writers upon equity jurisprudence as something “which the law esteems as an equivalent given for the grant, and it is therefore founded on motives of justice ” (1 Story Eq.Jur. 10th ed. § 354). If the subsequent grantee does not give up any security or divest himself of any right, or place himself in a worse situation than he would have-been if he had received notice of the prior equitable title- or lien previous to his purchase, he will not be permitted to retain the legal title to the injury of' the prior grantee. Or, as it was tersely stated by Allen, J., in Weaver v. Barden (49 N. Y. 291) a purchaser fora valuable consideration is a purchaser “ for value paid.” This limited application of the term is entirely consistent with the purpose of the recording act, which was declared by the chancellor in Dickerson' v. Tillinghast to be the protection of those “ who should part with their money, property, securities, or other valuable rights, upon the faith of a conveyance or mqrtgage of real estate, supposing they were getting a good title thereto, or a legal or a specific lien thereon, without notice, or having any reason to believe that there was any previous mortgage or conveyance which could defeat such title or lien.” If the rejection of the later conveyance will leave the grantee in the same position with respect to his property rights as he occupied before its execution and acceptance, he cannot be permitted to aid, however innocently, the fraudulent grantor in his effort to defeat a prior conveyance by him of the same lands. Where the grantee parts with nothing of substantial valúe, he must be satisfied if he receives nothing, because his grantor had nothing which he could honestly convey. The considerations other than money, upon which the defendant relies, when submitted to this equitable test, fall far short of satisfying its requirements. If her deed is adjudged void, she has not lost or sacrificed anything which she possessed when it was executed, nor become encumbered with any promise or obligation which will result in a future loss or sacrifice. She has, therefore, failed to establish her title as a purchaser for a valuable consideration.

Whether there was sufficient evidence to go to the jury upon the issue of fraud and undue influence in the execution of the deeds under which the plaintiffs claim, or of their non-delivery, we cannot now consider. The General Term has not yet passed upon that question.

The order appealed from must be reversed, and the case remitted to the General Term for a review upon the facts, with costs to abide the. event of the action.

All the judges concurred.

Note on how far a want of adequate consideration or BADGES OF FRAUD APPEARING ON THE RECORD AFFECT A SUBSEQUENT PURCHASER WITH NOTICE.

Statute of frauds.] By 2 R. S. p. 137 (4 Id. 8th ed. p. 2593) pt. II. chap. VII, tit. 1, § 1, it is provided that “ every conveyance of any estate or interest in lands, or the rents and profits of lands, and every charge upon lands ór upon the rents and profits thereof, made or created, with the intent to defraud prior or subsequent purchasers for valuable consideration of the same lands, rents or profits as against such purchasers, shall be void.” [Prior purchasers are included because of the preference given to registered over unregistered deeds, see Reviser’s Notes, 2 R. S. 2 ed. p. 654.]

§ 2. No such conveyance or charge shall be deemed fraudulent in favor of a subsequent purchaser who shall have actual or legal notice thereof, at the time of his purchase, unless it shall appear that the grantee in such conveyance or person to be benefited by such charge was privy to the fraud intended.

[This section was intended to settle the question whether a subsequent purchaser with notice can set aside a prior voluntary conveyance (Reviser’s Notes, 3 R. S. 2 ed. p. 654) see Verplank v. Sterry, 12 Johns. 536.]

2 R. S. p. 137 (4 Id. 8th ed. p. 2593), § 4. “ The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact and not of law ; nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers solely on the ground that it was not founded on a valuable consideration.

§ 5. “The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.”

Recording Act.] Section 1 of the Recording Act (1 R. S. p. 756 7. 4 Id. 8th ed. p. 2469) provides that: “ Every conveyance of real estate within this State hereafter made shall be recorded in the office of the clerk of the county where such real estate shall be situated 7 and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”

The Recording Act (1 R. S. p, 761 ; 4 Id. 8th ed. p. 2475), § 37 declares that “ the term ' purchaser ’ as used in this chapter, shall be construed to embrace every person to whom any estate or interest in real estate shall be conveyed for a valuable consideration and also-every assignee of a mortgage or lease or other conditional estate.”

Assignment on the eve oj insolvency, no excuse for refusal to take title against oral evidence ofgoodfaithi\ Bayliss v. Stimson, 53 Super. Ct. 225, affirmed on opinion of the court below in 110 N. Y. 621. Action at law by the vendee to recover back earnest money paid and for damages by reason of the breach of a contract for the assignment of a lease. Plaintiff sought to rescind on the ground that the defendant had recently derived his title from a third person by an assignment expressed to be in the consideration of “one dollar and other good and valuable consideration” and that such third person had in the meanwhile failed and assigned for the benefit of creditors. Defendant gave parol evidence showing that the assignment to him was bona fide and for a valuable consideration.—Held, that plaintiff could not recover.

The court say: “ There is a plain distinction between an action in equity and for a specific performance, and an action at law for the recovery of money paid on the execution of a contract of sale of land. In an action for specific performance the rule is stated, that equity will not interfere and decree a specific performance unless the plaintiff establishes to the satisfaction of the court that his title is a marketable title...... In an action at law, however, the plaintiff seeking to recover either damages for the failure to perform the contract, or the amount paid on the contract, is bound to show that the defendant has broken the contract, and that he (the plaintiff) has tendered performance or was able to perform the contract on his part. That burden is on the plaintiff, the party seeking to recover.”

Royer Wheel Co. v. Fielding, 31 Hun, 274. Where a conveyance was given for a nominal consideration and it also appeared that the grantor was insolvent at the time of the conveyance.—Held, that the conveyance was fraudulent as to creditors.

Assignment by trustees to one of themselves.] Priessenger v. Sharp, 39 State Rep. 260; S. C., 14 N. Y. Supp. 372. In an action to recover back a payment made in the purchase price "of real property, together with the expense incurred in examining the title, brought on the ground of the failure of defendants to give good title, it was shown that a prior owner, under whom the defendant claimed, had been one of two trustees to whom a mortgage on the property was given ; that it had been assigned by the trustees to him individually and that he brought an action to foreclose it and became the purchaser at the sale.—Held, that the title obtained in this way is presumptively voidable at the instance of the beneficiaries of the trust, and any person taking the title from him takes it with notice of the fact that the mortgage was held by him in trust and defendant failing to show that in fact this trust created no defect, the title was not marketable.

The court say': “ It was competent, however, for the defendants to show that in fact this trust created no defect. But the burden was upon them to show it. They gave no evidence to that effect. Moreover, the plaintiff gave evidence that at the time fixed for closing of the title the defendant’s attorney stated that somebody might be interested in the mortgage besides the trustees.”

Trustee or executor conveying to himself through third person.] People v. Open Board Stock Brokers B’ld’g Co., 92 N. Y. 98. Proceedings to compel a purchaser at a receiver’s sale to complete his purchase. The purchaser’s examination of the title disclosed two deeds which constituted links in the chain of title, one from an executor to a third person, and the other by a third person to the executor, both being recorded upon the same day. A search in the surrogate’s office showed that the executor had not accounted before the surrogate.—Held, that as the purchaser with knowledge of Such facts before the payment of the purchase money could not be protected as one buying in good faith and without knowledge of the breach of trust, he could not be compelled to complete the purchase.

Bona fide purchaser from dummy.] Very v. Russell, 65 N. H. 646. A mortgagee sold the mortgaged premises under a power of sale contained in the mortgage to his own agent and gave him a quit-claim deed. ■ The agent sold to a bona fide purchaser for value.—Held, that as against the mortgagor the purchaser was protected in his title according to the legal interpretation of the instrument of conveyance by which he held.

Purchaser from fraudulent grantee.] Ledyard v. Butler, 9 Paige, 131. A bona fide purchaser or mortgagee from a fraudulent grantee, is entitled, if neither has actual nor constructive notice of the fraud, to preference over' a subsequent purchaser under a judgment against the fraudulent grantor, if such prior deed or mortgage is first recorded.

Mortgage by fraudulent grantee to bona fide creditor of grantor,J Brooks v. Wilson, 53 Hun, 173. In an action by a judgment creditor to set aside a fraudulent conveyance,—Held, that where an insolvent debtor, with intent to defraud his creditors, has conveyed his property,‘and the fraudulent grantee, at his request, for the purpose of securing a valid indebtedness of the insolvent debtor to a third person, executes a mortgage upon such property to such third person, such mortgage constitutes a just appropriation of the property of the insolvent debtor to the payment of his debt, and the mortgagee becomes a bona fide purchaser; and the right of the creditors to set aside the conveyance to the prejudice of the mortgagee was, therefore, cut off.

Deed as security for pre-existing debt.] Bingham v. Hyland, 6 N.Y. Supp. 75. One .who takes a deed to land as security for a pre-existing indebtedness, and for no other consideration, is not a purchaser for a valuable consideration within the meaning of the recording act.—So held, in an action in equity to establish title under an unrecorded deed, and to have a subsequent recorded deed declared void, where it appeared, by evidence extrinsic to the recorded deed, that the consideration for which it had been given was a prior indebtedness.

—in parti] Merritt v. Northern R. R. Co., 12 Barb. 605. One who takes a deed which is not absolute, but in the nature of a security for a consideration consisting in part of a precedent debt, must be considered a bona fide purchaser only to the amount he paid or advanced in consequence of receiving the deed.

Pickett v. Barron, 29 Barb. 505. Foreclosure. The assignment ■of the bond and mortgage to plaintiff purported upon its face to have been made “ as collateral security for $177.68.” It appeared by the evidence that only $100 in cash was advanced at the time •of the assignment and that $77.68 was for a pre-existing debt. Held, that plaintiff under the recording act had-priority over a previous assignee of the same mortgage whose assignment had not been recorded, only to the extent of the $100 actually advanced.

The court say: “ When a party has obtained the legal title, if he has paid but a part of the consideration or value of the property he is entitled to be considered a bona fide purchaser pro tanto •(citing Peabody v. Fenton, 3 Barb. Ch. 451; Stalker v. McDonald, 6 Hill, 93). The case last cited, it is true, was a case of a promissory note. But the anology between the case of a person claiming the rights of a bona fide holder of negotiable paper, and a person claiming to be a subsequent purchaser for a valuable consideration, under the recording acts, is quite perfect, and there is no reason why the rule of law should not apply to them alike.”

Deed in payment.] Dickerson v. Tillinghast, 4 Paige, 215. One who without notice of a prior unrecorded mortgage takes a conveyance of land in payment of an existing debt, or as a security therefor, without giving up any security, divesting himself of any right, or doing any act to his own prejudice, on the faith of the title before he has notice of the mortgage, is not a bona fide pur•chaser for valuable consideration within the meaning of the recording act.

See, also, S. P., Evertson v. Evertson, 5 Paige, 644; Westernvelt v. Haff, 2 Sandf. Ch. 98; Coddington v. Bay, 20 Johns. 636; Woodburn v. Chamberlin, 17 Barb. 446.

Sipley v. Wass (N. J. 1892,) 24 Atlantic Rep. 233. A conveyance in absolute payment and discharge in whole or in part •of a debt, and not merely as security therefor, is sufficient to make the creditor”a bona fide purchaser for a valuable consideration under the twenty-second section of the New Jersey statute concerning mortgages (Revision, p. 706, § 22),—providing that unrecorded ■mortgages shall be void against a subsequent judgment creditor or bona fide purchaser or mortgagee for a valuable consideration not having notice thereof.

Power to sell defeasible on devisee’s marriage, followed by sals before marriage]. Pemplew v. Chambers (Neb. 1891), 45 Northwest Rep. 268 ; Id. 1103. A will contained a devise to testator’s wife of all testator’s real estate, for her own use during her life, with full power to sell and convey. There was also a provision, that in case the wife remarried, her authority should cease and determine, and the remaining estate should be equally divided among his children. About two years after the probating of the. will, the widow conveyed the real property to N. for an expressed consideration of $2,500. A few weeks afterwards she married one, S.,. and soon after the marriage N. conveyed the land to Mrs. S. for an expressed consideration of $500. Held, that a purchaser at a sale upon the foreclosure of a mortgage given by Mrs. S. without actual notice of any infirmity in the title, acquired a good title as against the children of testator.

Tardy deed by official assignee, for trivial consideration!) Palmer v. Morrison, 104 N. Y. 132. It seems, that the facts that the title proffered by a vendor comes through a deed executed by an assignee, in bankruptcy, in a case where no debts were proved against the estate of the bankrupt, before his dischage, and but one small debt afterwards; that the land was sold by the assignee for but two. dollars, without any proof that even that was paid, or that any binding contract for the sale was made; that no deed was given by the assignee .until after the lapse of 22 years, when no conveyance could have been compelled, and that the deed was then given without order of court, and that no possession ever accompanied the: title under the assignee’s sale,—leave the title involved in so much infirmity and uncertainty, that a court would decline to compel a vendee entitled to a good marketable title to take a conveyance thereof.

Deed not expressing consideration.) Boyton v. Rees, 8 Pick. (Mass.) 329, 332. Trespass in tearing down a dam. At the trial the plaintiff offered in evidence an unrecorded deed which conferred, upon him the privilege of maintaining the dam, but did not mention any consideration. Held, that the deed was not void because it failed, to express any consideration, as the deed itself imported a consideration ; and to avoid it as a voluntary conveyance against subsequent, purchasers, the party objecting must prove that no consideration, was given.

Quit claim.) Smith v. Rudd (Kan. 1892), 29 Pacific Rep. 310. A party receiving a quit-claim deed for real estate is presumed to take it with notice of all outstanding interests and claims of which he could obtain knowledge by the exercise of a reasonable degree of diligence in the examination of all the public records affecting the title to the-property included in such deed, and from inquiries which he might make of persons whom the records show had redeemed the property from tax sale and had paid subsequent taxes thereon,, or were otherwise ostensibly interested in such property.

McDonald v. Belding, 145 U. S. 492. In Arkansas, although the rule obtains that a person holding under a quit-claim deed may be ordinarily persumed to have had knowledge of imperfections in the vendor’s title, yet that rule is not universal, and one may become entitled to protection as a bona fide purchaser for value, although holding under a deed of that kind. So held, where the deed accepted by the purchaser was not drawn, a quit-claim deed pursuant to any specific direction given by him, and it appeared that he had paid full value.

“ In trust,” notice .] Budd v. Munroe, 18 Hun, 316. The words- “ in trust,” contained in a certificate of stock, are sufficient notice of a trust to impose the obligation of ascertaining authority of the trustee to sell or hypothecate the same.

Diversion imposes burden of proof.] Consalus v. McConihe, 22 Weekly Dig. 180. Where a bond and mortgage were assigned for a particular purpose from which the assignee diverted them,—Held. that those claiming under him must show themselves purchasers in good faith and for value.

Amount paid.] Macauley v. Smith, 132 N. Y. 524. A grantee-can not claim to be a bona fide purchaser for value under the recording act, unless he has paid all- the purchase money. If only a portion of the purchase money has been paid, he is only protected to the extent of amount innocently paid.

Neglect to foreclose not enough.] Weaver v. Edwards, 39 Hun, 233. The owner of land gave a first and second mortgage, and subsequently by fraud secured the satisfaction of the first mortgage. The holder of the second mortgage, seeing that the first mortgage was satisfied of record, neglected to enforce his mortgage. In an action by the first mortgagee, brought some eight years after such satisfaction had been given, to set it aside, and to have his mortgage restored ás lien prior to that of the second mortgage, Held, that he was entitled to the relief sought.

The court say: “ The difficulty with the executors [the holders, of the second mortgage] in this case is that mere neglect to sue does not make them bona fide purchasers for value. To put themselves in that position they must have parted with value in consideration of some lien given on the premises or conveyance thereof. All which they did was to delay enforcing an old security, because they thought that old security was good.  