
    *M’Clanachan & als. v. Siter, Price & Co.
    July Term, 1845,
    Lewisburg-.
    (Absent Brookb and Axken, J.)
    Husband and Wife — Land Belonging to Wife — Conveyance of Equity of Redemption — To Sell for Use of Grantors. — Husband and wife convey the equity of redemption in land belonging to the wife to a trustee, in trust to sell the same for the use and benefit of the grantors. Held.
    1. Same — Same—Same—Same—Conversion.—This is a conversion of the land into personalty.
    2. Same — Same—Same—Powers of Husband. — The husband may, in the lifetime of the wife, dispose of the trust property.
    3. Same — Same—Same—Effect When Husband Survives Wife. — The husband surviving the wife, the whole trust property remaining, whether it be the land unsold, or the proceeds of the land, belongs to the husband; and her heir at law has no interest therein.
    4. Same — Same—Same—Failure of Trustee to Sell— Bona Fide Mortgagee. The land not havingbeen sold by the trustee, he is not entitled to hold it as against a subsequent bona fide mortgagee without notice, in satisfaction of debts due to him from the husband, or advances made by him to the husband before the mortgage.
    5. Same — Same — Same — Same — Parol Evidence.— Parol evidence is not admissible, as against a subsequent bona fide mortgagee without notice, to prove that at the time of executing the deed it was agreed between the parties thereto that the trustee should hold the property in trust to secure debts due from, and advancements to be made to the husband.
    
      6. Same — Same—Conveyance of Land by Husband and Wife — Deed—Inoperative as to Wife — Effect.—A subsequent conveyance of the property, as land, by the husband and wife, by deed of bargain and sale, to a bona fide mortgagee, is valid to convey all their interest therein. And this, though the privy examination of the wife is so taken, that the deed is inoperative as to her.
    7. Equity Practice — Ta'cking.—The trustee being a prior mortgagee of the equity of redemption in the land, cannot tack his debts due from the husband to his mortgage, as against a subsequent Iona fide mortgagee without notice.
    John Gantt intermarried with Virginia A. M’Clanachan, who inherited from her father a tract of land containing some 250 acres, and including a part of the town of Lewisburg in Greenbrier county.
    On the 10th of June 1829, he and his wife, then resident in St. Louis, Missouri, joined in a deed by which *the whole of her property was mortgaged to Byers & Butler for 293 dollars 44 cents, to Samuel Coolr for 204 dollars 50 cents, and to John Meur, Asher Philips and George Gwathmey, for 136 dollars.
    On the 13th of June 1829, John Gantt executed a single bill of that date for the payment to George H. Kennerly, sixty days after date, of 1106 dollars 45 cents. On the same day, he and his wife joined in mortgaging the same property to the said Ken-nerly, who seems to have been extensively engaged in the mercantile business in St. Louis, to secure the debt of 1106 dollars 45 cents. Both deeds were recorded in Green-brier on the 17th July 1829.
    In the spring of 1330, Gantt visited the county, of Greenbrier, and laid off a part of the mortgaged land in lots, and made considerable sales to various persons. Deeds from himself and his wife to the purchasers, were left in the hands of John A. North, Esq., and Dr. Hugh Wilson, of Lewisburg, to be delivered when the purchase money should be paid; and bonds to the amount of 2957 dollars 78 cents, were left in the hands of those gentlemen, who were moreover authorized and directed to collect the same and appl3 the proceeds towards the payment of the two mortgages.
    On the 2d September 1830, Gantt drew on his agents, Messrs. North & Wilson, in favour of Kennerly, the second mortgagee, in manner following:
    “St. Louis, Missouri,
    2d September 1830.
    “ To Doctor H. Wilson,
    John A. North.
    ‘ ‘Pay to George H. Kennerly, or to his order, the sum of 837 dollars 17 cents, on or before Dec’r 31, 1830, when a relinquishment of the mortgage now of record in Greenbrier County Court, will be made.
    “John Gantt.”
    *This draft was endorsed by George H. Kennerly to Samuel Kennerly, and by him to James Kennerly, who on the 9th May 1831, received and gave a receipt for 700 dollars, in part satisfaction of the same.
    The remainder of the mortgaged property, (to wit: that part which was not sold by Gantt on his visit to Virginia in 1830,) was conveyed by Gantt and his wife, on the 3d day of March 1831, to the same George H. Kennerly, by a deed which witnesseth: That for the purposes and for the considerations hereafter mentioned, the said party of the first part have granted, bargained and sold, enfeoffed and confirmed, and do by these presents grant, bargain, sell, en-feoff and confirm unto the said George H. Kennerly, the several tracts of land hereinafter described, situate in the county of Greenbrier in the State of Virginia, and lying adjacent to the town of Lewisburg: in trust, however, and for the following purposes: That said George H. Kennerly may sell and dispose of said tracts of land for the best price he can get therefor, for the use and benefit of the said party of the first part, and for the purpose of enabling the said George H. Kennerly to make and acknowledge according to the laws of Virginia, a good and sufficient deed, or good and sufficient deeds, for all and any of said land, to the purchaser or purchasers,” &c.
    The deed then proceeds to describe the lots conveyed, eight in number, and these lots are all that remained of the land of Mrs. Gantt, after the sales of 1830.
    The certificate made by the Missouri justices of the execution of this deed states, that John Gantt and his wife executed and acknowledged the deed in their presence, and they go on to say: “She, the said Virginia A., having been by us first made acquainted with the contents of said deed, and examined separately and out of the-hearing of her said husband, whether she executed the same freely and voluntarily, and without any compulsion or under influence of her said husband or *fear of his displeasure, she acknowledged that she executed said deed freely and voluntarily, and without any compulsion or infiuence of her said husband, and that she does not wish to retract it; and the said grantors desired us to certify this deed and the acknowledgment to the clerk of Green-brier County Court, in order that the same may be recorded.” March 4, 1831. This, deed was admitted to record May 9, 1831.
    On the 28th of April 1831, John Gantt and. his wife joined in a deed to Mrs. Mildred M’Clanachan, (her mother,) by which, to> secure to her the payment of 2000 dollars, they mortgaged to her the first, second, fourth and fifth of the eight lots described, and conveyed by the deed last mentioned, of March 3, 1831.
    The Missouri justices certify that Mrs. Gantt came before them on the 10th of May, “and acknowledged the same to be her act and deed; and the said Virginia A. Gantt being by us first made acquainted with the contents thereof, and examined separately and apart from her husband, whether she executed the said deed and relinquished her dower to the said lands and tenements therein mentioned, voluntarily, freely and without compulsion, or under influence of her husband, acknowledged and declared that she executed the said deed- and relinquished her dower in the said lands and tenements therein mentioned, vol-untarilj, freely and without compulsion, or under influence of her said husband. ’ ’ This deed was recorded October 19, 1833.
    Before the date of this deed, viz: on the 23d August 1830, John Gantt had given his note to A. B. Maginnis, for 150 dollars, payable March 10, 1831. The note was assigned by Maginnis to the same George H. Kennerly, and by him to Siter, Price & Co., but at what time does not appear.
    On the 5th June 1831, Gantt and Blackwell gave their note at six months, for 3612 dollars 96 cents, to the same George H. Kennerly, by whom it was assigned *to A. B. Maginnis, and by him to Siter, Price & Co. The assignments are without date.
    It appears, moreover, that between the 1st of January 1831, and the 24th March 1832, John Gantt ran up an account in the store of George H. Kennerly, to the amount of 3524 dollars 44 cents. James Kennerly, a witness for the plaintiffs, swears that the account is just, and also that the note for 3612 dollars 96 cents, given by Gantt and Blackwell to George H. Kennerly, on the Sth June 1831, was given for goods furnished by G. H. Kennerly to Gantt and Blackwell, to trade in what was called the mountain trade, upon the express condition that the above debts were to be secured by a lien which George H. Kennerly had upon the’ lands belonging to said John Gantt and wife in Greenbrier county. And this affiant (he adds) well knows that the said lands were in like manner to be bound for any and all other subsequent liabilities of said George H. Kennerly, for and on account of said John Gantt. There were at the time the first two debts above mentioned were created, other debts then due to G. H. Ken-nerly for assumptions made by him for John Gantt, and for which said lands were considered as bound. This affiant states also, that at the time of the above transactions, some deeds or conveyances were made by the said John Gantt and w-ife to George H. Kennerly, and which this affiant understood at the time, from both parties, to be absolute, and that said George H. Kennerly might sell and dispose of the lands absolutely, without any claim of mortgage, de-feasance or trust whatsoever: It was, however, well understood between said John Gantt and George H. Kennerly, that said Kennerly should account to said Gantt for any overplus remaining on hands after payment of the liabilities for which said George E. Kennerly was bound as aforesaid for said Gantt, and the debts also due to said Kennerly. The deponent further states that the note given by Gantt and Blackwell, *dated 5th June 1831, he well knows was given for goods which were to have been furnished by said George H. Kennerly in consequence of said Gantt having previously executed the deeds and conveyances to said Kennerly for the lands in Greenbrier, and by which said Gantt assured Kennerly, he was fully and amply secured, and in which G. H. Ken-nerly thought he was fully secured by the conveyance of the lands, or he would not have let Gantt have the goods, which were purchased only on th.e understanding that the lands indemnified George H. Kennerly from any and all losses whatsoever.
    The same witness, re-examined March 15th, 1839, states that immediately after these debts were contracted, John Gantt went into the Rocky Mountains and prairie country, and was absent till the fall of 1838, when he returned to St. Bouis, as witness supposes, insolvent.
    In December 1837, Siter, Price & Co. exhibited their bill on the chancery side of the Circuit Superior Court of Baw and Chancery for Greenbrier county, for the recovery of the debts hereinbefore mentioned, as transferred to them, and in their bill after stating the debts, and the deed to Byers & Butler and others, and the two deeds to Kennerly, they say, “Your orators allege that all the debts aforesaid, to wit: the debt of 1106 dollars 45 cents, the debt of 150 dollars, the account of 3524 dollars 44 cents, and also the debt of 3612 dollars 96 cents are still due and unpaid, and have been transferred to your orators for value received, with the foregoing securities for their payment.” They farther say they ‘ ‘are informed, and so allege, that the true design of the deed to Kennerly of March 3, 1831, was to create a fund for the payment of the debt of 150 dollars aforesaid, and the other debts which were then so accumulating in the hands and on the books of said Kennerly. They .charge that at the time the said deed was executed, it was expressly understood, that upon the sale *of said land or any part thereof, the proceeds were to be applied to the payment of the aforesaid debts and any other which said Kennerly might have upon said Gantt.”
    The bill recognizes the priority of the lien of Byers & Butler, and others, but avers that their claims have been nearly discharged.
    It also adverts to the mortgage to Mrs. M’Clanachan, of April 28, 1831, to secure 2000 dollars, but insists that Mrs. Gantt’s relinquishment of her title and interest annexed to said deed, is fatally defective and passes nothing; her interest being described in the certificate of the justices as a “dower” interest, whereas she was the owner in fee. And “further charges, that they should first have their debts discharged out of this mortgage fund, whether they can tack their debts to the debt mentioned in the first mortgage to Kennerly or not; or whether the deed executed to Mildred M’Clanachan passed a fee simple interest or not; because the second mortgage to Kennerly was executed before the deed to Mildred M’Clanachan was executed, and the entire debt to Kennerly was contracted before it was recorded; and because it was designed and intended at the time their debts were contracted, that they should be paid out of this mortgage fund in manner aforesaid.”
    They aver that “Messrs. John A. North and Hugh Wilson, of Uewisburg, have received and yet retain in their hands large sums of money,' payable to the said John Gantt, the precise sum or sums they cannot state.”
    They then state the death of Virginia A. Gantt, and that she left an only child, Nor-borne Beall Gantt, an infant, who is her heir at law. They make him and all the other parties interested, defendants to their bill, and ask that “the mortgaged premises aforesaid may be sold and the proceeds distributed according to the rights of the parties ; that the money remaining in the hands of the said North and Wilson may be attached and applied to the payment of their debts,” and for general relief. *The bill was taken for confessed as against Gantt, Kennerly, Wilson, and Byers & Butler; Mildred M’Clanachan, N. B. Gantt, by his guardian ad litem, and North filed their answers.
    Mildred M’Clanachan’s answer states, that she is advised that her deed is valid, having been “substantially acknowledged by Virginia Gantt, according to the true intent and meaning of the act of assembly; avers that Messrs. North and Wilson have funds sufficient to pay Kenneriey’s mortgage for 1106 dollars 45 cents; believes that the first mortgage,(to Byers & Butler),_ has been paid off. This defendant is, advised that the said deed (of March 3, 1831), on its face is not, nor was it intended as a mortgage, but is and was without any valuable consideration, and that by law a trust at once resulted to the grantors in the said deed, and that the said deed was intended as a naked authority to the said Kennerly to sell and convey the said lands for the benefit of the said Gantt and wife. And this defendant is advised that it is not competent in law or equity, to the said Kennerly or his assignee, by parol to set up and prove a secret trust and security, by way of mortgage, under the said deed. And the said defendant pleads, insists and relies on the statute against fraudulent conveyances, in bar of the claim of the complainants under said deed of March 3, 1831, as a security for their claims in the bill mentioned.” She also pleads the statute of limitations in bar of the store account of 3524 dollars 44 cents; denies the right to tack any other claim of Kennerly’s to that secured by mortgage. Bastly. “This defendant requires strict proof of all the allegations of said bill not herein admitted.”
    N. B. Gantt’s answer, by John A. North, his guardian ad litem, demands “strict proof of the matters and things set forth in the bill. ”
    John A. North’s answer states, that Mr. Wilson and himself received bonds from John Gantt (as hereinbefore ^mentioned), amounting to 2957 dollars 78 cents, of which they had collected 2139 dollars 35 cents, and disbursed 1256 dollars 97 cents, leaving yet in hands 882 dollars 31 cents. Also, bonds uncollected, 618 dollars 43 cents. But he states that 100 dollars was to be deducted, due to the executor" of Jacob Kinney, deceased. He "states that only 137 dollars 17 cents, with interest, remains due to Kennerly on his debt of 1106 dollars 45 cents, and only 281 dollars 59 cents, with interest, due to Byers & Butler and others on their mortgage.
    On the 20th May 1839, the cause came on to be heard, whereupon it was decreed that one of the commissioners of the Court should state, settle, and to the Court report, the amount of the several claims due from the defendant Gantt to the defendant Ken-nerly.
    The commissioner reports the whole debt of 1106 dollars 45 cents to be due, except the sum of 700 dollars, paid by Mr. North. And he also reports the other debts claimed by the plaintiffs as assignees of Kennerly.
    The defendants, M. M’Clanachan and N. B. Gantt, excepted to the report, because the commissioner had reported as due, the 150 dollars, the account for 3524 dollars 44 cents, and the note for 3612 dollars 96 cents, which they consider barred by the statute of limitations.
    They also except to the statement made, as above, of the 1106 dollars 45 cents debt, insisting that it ought to have been considered as discharged, except as to 137 dollars 17- cents, and interest.
    The Court overruled the first exception, being of opinion that “it is not competent for third persons to set up the statute of limitations against the claim of Kennerly in this cause;” and sustained the second, “being of opinion that the draft of the said John Gantt to George H. Kennerly, of September 2d, 1830, which was accepted and received by the said Kennerly, furnishes evidence that the whole of said debt secured by *the first mortgage to the said Kennerly, was adjusted and paid to the said Kennerly, except the sum of 837 dollars 17 cents.
    “And the Court is further of opinion, that the creditors secured by the mortgage of the 10th June 1829, in favour of Byers and others, are entitled to priority of satisfaction ; that in the next place, the residue of the debt due to said Kennerly, secured by the mortgage of the 13th June 1829, should be satisfied.
    “And the Court is further of opinion, that as the said Gantt and wife, by their deed of the 3d March 1831, conveyed the equity of redemption in a portion of said mortgaged premises to said George H. Kennerly, absolutely, with authority to sell the same for the best prices he could get therefor, for the use and benefit of the grantors, and that the said Kennerly, upon the faith, of such security, made large advances to said Gantt, the said Kennerly has a right to retain the title vested in him, until such advances are satisfied, and that, to the extent of such advances, the said property was converted into a personal fund, liable to the debts of said Gantt, contracted on the faith thereof; and that, therefore, after the payment of the two mortgages first mentioned, the residue of the property embraced in the said deed of March 3, 1831, should be subjected tg the payment of the debt due to said Kennerly.
    “And the Court is further of opinion, that as the certificate of relinquishment of the wife of said Gantt, to the deed in favour of M’Clanachan, is materially defective, in not shewing that she consented that the said deed should be recorded, or that she did not wish to retract it, the deed is not obligatory on herand the Court being of opinion, that as the estate incumbered was held by said Gantt in right of his wife, the equity of redemption, after the payment of the debts secured by the mortgages, and the deed to said Kennerly, which were properly acknowledged by him, belonged to her; and upon *her death the reversion in fee descended on her son and heir. But the Court is of opinion, that after the satisfaction of the said mortgages and the debts due Kennerly; the life estate of the said John Gant't in any property remaining, is liable for the payment of the debt due to said M’Clan-achan, and it appearing by the answer of North, that a portion of the property embraced by the first two mortgages ',w,a.s' sold and conveyed by said Gantt and wife, in the lifetime of Mrs. Gantt, and that ' from the proceeds arising from the sale, there is and will be sufficient funds in the hands'of North and Wilson to pay oft the debts secured by the first two mortgages, the Court is of opinion that the said fund should be applied and paid over to the satisfaction of said debts, and the residue be applied to the payment of the Kennerly debts, and after the application of the said fund, the property conveyed by the deed to said Ken-nerly, dated 3d March 1831, is to be sold to satisfy the same, or so much of said prop-ert3' as may-be necessary, selling first such of the property embraced by the deed of March 3d, 1831, as is not embraced b.y the mortgage in favour of Mildred M’Clan-achan, and after the payment of the said debt, the life estate of the said John Gantt in any of the property embraced by the mortgage in favour of M. M’Clanachan, which remains unsold, to be subject to sale to satisfy the debt secured in said last mentioned mortgage. It is therefore adjudged, ordered and decreed,” &c. The decree is in conformity with the opinion.
    From this decree, Mrs. M’Clanachan and N. B. Gantt applied for, and obtained an appeal to this Court.
    William Smith, for the appellant
    M’Clan-achan, insisted that the decree of the.Court below was erroneous.
    1st. Because the parol agreement attempted to be set up in connection with the deed of the 3d of March 1831, from Gantt and wife to Kennerly, was void, as *being contrary to the provisions of the statute of frauds and perjuries. And on this point the Court was referred to Henderson v. Hudson, 1 Munf. 510; 4 Kent’s Com. 144-5, 168-9; 2 Story’s Equ. 288-9; Norris v. Wilkinson, 12 Ves. R. 192; Hooper, Ex parte, 19 Id. 477; Colquhoun v. Atkinson, 6 Munf. 550.
    It was also insisted that such a parol trust, not appearing on the face of the deed, but contradicting it, was against the policy of our registry acts, and it would be to repeal the statute requiring mortgages and deeds of trust to be recorded, to make them valid against subsequent purchasers for value without notice, to enable a party to set up a secret trust of which the registry gave no notice, against such a purchaser. And the Court was referred to Shields v. Anderson, 3 Leigh 729; Bird v. Wilkinson, 4 Leigh 266.
    2d. That the deed of the 28th April 1831, from Gantt and wife to Mrs. M’Clanachan passed the whole interest in the property remaining in the grantors to the grantee. To sustain this proposition, the counsel examined the certificate of the justices to shew that it was a substantial compliance with the statute. But whether this were so or not, he insisted that the deed of March 3d, 1831, to Kennerly, upon trust to sell and convey the property for the use and benefit of,the parties of the first part, created either an unlimited estate in the husband, or a new estate in the husband and wife: and Gantt the husband having survived .the^ wife, the whole interest passed by his deed to Mrs. M’Clanachan, even though the deed as to the -wife was improperly executed. Thornton v. Thornton, 3 Rand. 179.
    Cooke, for the appellant
    N. B. Gantt, insisted that the deed of the 28th of April 1831, from Gantt and wife to Mrs. M’Clan-achan, passed nothing of Mrs. Gantt’s interest in the property thereby conveyed, for the reasons assigned by the Court below; and for the additional *reason, that the deed was mis-explained to her by the justices, who told her that she parted thereby with her dower only.
    Patton, and Price, for the appellees.
    1. After the first mortgage to Byers & Butler, and the second to Kennerly, the equity of redemption is conveyed absolutely to Ken-nerly, to raise funds, to be applied to the satisfaction of advances made by him to Gantt; and the Court will not take the fund out of his hands, until his advances made upon the faith of it are satisfied. In England, the deposite of title papers has been considered as prima facie evidence of part performance of a contract, and the foundation for the admission of parol evidence to explain it. 2 Brown’s Ch. Cas. 268. And this was admitted to be the practice in Colquhoun v. Atkinson, 6 Munf. 550. See on this subject Shirras & ais. v. Craig & Mitchel, 7 Cranch’s R. 50, 51; 2 Sugden on Vend. 76 or 84; Hendricks v. Robinson, 2 Johns. Ch. R. 283; United States v. Hooe, 3 Cranch’s R. 73, 89.
    A judgment or other security may be taken and held for future responsibilities. Brinkerhoff v. Marvin, 5 Johns. Ch. R. 326. And when it was a part of the original agreement, a judgment may be entered and held as a security for future advances, beyond the amount then actually due, in like manner as a mortgage may be held as a security for future advances. The limitation to this doctrine would be, that when a subsequent judgment or mortgage intervened, further advances after this period could not be covered. Brinkerhoff v. Marvin, supra; Livingston v. MTnlay, 16 Johns. R. 16S. In these cases, the understanding must be proved by parol. And this species of evidence is admissible to prove that a deed absolute on its face, is a mortgage. James v. Johnson, 6 Johns. Ch. R. 417; Ross v. Norvel, 1 Wash. 14; Thompson v. Davenport, 1 Wash. 12S; Chapman v. Turner, 1 Call 244; King v. Newman, 2 Munf. 40; *Robertson v. Campbell & als., 2 Call 354. And see on this subject, Brace v. Dutchess of Marlborough, 2 P. Wms. 491; Bank of U. S. v. Carrington, 7 Leigh 566; 2 Eonb. Equ. 267; Baker v. Harris, 16 Ves. R. 397.
    We concur with the appellants’ counsel in the proposition that the deed of March 3d, 1831, converted the property thereby conveyed into personalty. Tazewell v. Smith, 1 Rand. 313; Pratt v. Taliaferro, 3 Leigh 419; Commonwealth v. Martin, 5 Munf. 117. That being personal estate, and a mere equitable interest, it did not pass by deed of bargain and sale, as there being no legal estate, no use arises on which the statute can operate to transfer any possession.
    The fund transferred to Kennerly being personalty, it belonged exclusively to Gantt; and Kennerly had a right, either under the agreement with Gantt, or in the absence of any such agreement, to retain until he had received satisfaction for his claims, in preference to any subsequent assignee either with or without notice.
    If a purchaser or incumbrancer had such notice as to put him on enquiry the effect is equal to actual notice. And in this case Mrs. M’Clanachan had such notice. The deed informed her that the property was conveyed to Kennerly. By subsequently taking her own mortgage, she shews she knew he did not hold it absolutely; and therefore it was her own neglect if she did not enquire upon what trusts he held it.
    2. The deed was not properly admitted to record as the deed of Mrs. Gantt; and was therefore of no avail against other creditors. Todd v. Baylor, 4 Leigh 498.
    
      
      Jtjdse AiiiiEN decided the cause in the Court below.
    
    
      
      Husband and Wife. — See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Equitabie Conversion. — In the principal case it is held that, where the equity of redemption in land belonging to the wife is conveyed to a trustee, in trust to sell for the use and benefit of the grantors, such conveyance is a conversion of the land into personalty. Por this proposition the principal case is cited and approved in the following : Harcum v. Hudnall, 14Gratt. 379, and. foot-note-, foot-note to Davis v. Christian, 15 Gratt. 11; Ropp v. Minor, 33 Gratt. 109 (see foot-note)-, Efflnger v. Hall, 81 Va. 107; Carr v. Branch, 85 Va. 602, 604, 8 S. E. Rep. 476; Shanks v. Edmondson, 28 Gratt. 811, 813, and foot-note-, Bell v. Humphrey, 8 W. Va. 19; Zane v. Sawtell, 11 W. Va. 49, 50, 51. See also, Turner v. Street, 2 Rand. 404; Tazewell v. Smith, 1 Rand. 313; Pratt v. Taliaferro,. 3 Leigh 419; Phillips v. Ferguson, 85 Va. 509, 8 S. E. Rep. 241. See monographic note on “Conversion and Reconversion” appended to Vaughan v. Jones, 23 Gratt. 444.
    
    
      
       Assignment of Property to Secure Creditors — Antecedent Debts — Consideration.—In Western Mining. etc., Co. v. Peytona Coal Co., 8 W. Va. 441, it is said: “It was settled in Virginia previous to the creation of West Virginia — whether on tenable principle or not —that the existence of antecedent debts is a valuable consideration for a conveyance or assignment of property to secure the payment of the debts, and that the trustee and creditors are purchasers for a valuable consideration. Siter, Price & Co. ¶. McClanachan and Others, 2 Gratt. 280; Richeson v. Richeson and Others, 2 Gratt. 497; Wickham and Goshorn v. Lewis, Martin & Co., 13 Gratt. 427; Evans, Trustee, v. Greenhowand Others, 15 Gratt. 153.” See also, citing the principal case on this subject, Kimmins v. Wilson, 8 W. Va. 591; Cox v. Wayt, 26 W. Va. 817.
      Same — Notice.—Upon the question of notice and what constitutes such notice as to fix upon the trustee and creditors the imputation by mala fides, the principal case is cited in Vest v. Michie, 31 Gratt. 151, and foot-note-, Floyd v. Harding, 28 Gratt. 410; Alexandria Savings Inst. v. Thomas, 29 Gratt. 489; National Bank of Staunton v. Harman, 75 Va. 608; Moorman v. Arthur, 90 Va. 489, 18 S. E. Rep. 869; Kelly v. Lehigh, etc., Co., 98 Va. 408, 36 S. E. Rep. 511; Weinberg v. Rempe, 15 W. Va. 858; Pack v. Hansberger, 17 W. Va. 347; Ellison v. Torpin, 44 W. Va. 444, 30 S. E. Rep. 194. See monographic note on “Assignments for the Benefit of Creditors” appended to French v. Townes, 10 Gratt. 513; monographic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
       Deeds — Married Women’s Acknowledgment — Certificate — Requisites.—The certificate of a married woman’s acknowledgment of a deed must comply substantially to every requisite of the statute. Hockman v. McClanahan, 87 Va. 37, 12 S. E. Rep. 230, citing Langhorne v. Hobson, 4 Leigh 225; Tod v. Baylor, 4 Leigh 498; McGlanachan v. Site)-, 2 Gratt. 280; Watson v. Michael, 21 W. Va. 568. See also, citing the principal case on this subject, Hurst v. Léckie, 97 Va. 563, 34 S. E. Rep. 464; Va. Coal & Iron Co. v. Roberson, 88 Va. 118,13 S. E. Rep. 350; McCormack v. James, 36 Fed. Rep. 21; Blair v. Sayre, 29 W. Va. 610, 2 S. E. Rep. 100; Laidley v. Land Co., 30 W. Va. 513, 4 S. E. Rep. 705. See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
       Equity Practice — Tacking.—In Compton v. Jesup, 68 Fed. Rep. 324, it is said: “The doctrine established by the tacking cases proper — that a third mortgagee, without notice, may buy in a first mortgage, and thereby exclude a second mortgage — is not enforced in the courts of this country, in consequence of the effect of our registration system, which gives effect to conveyances in the order of registration. The policy underlying- registration is that a mortgage shall not be a security for more than is expressed therein, as against subsequent purchasers or mortgagees. I quite agree with what was said by the Virginia supreme court, through Baldwin, J.. in McClnnachan v. Siter, 2 Grail. 304.” See also, citing the principal case, Houston v. McCluney, 8 W. Va. 150.
    
   BALDWIN, J.

The merits of this cause turn upon the force and effect of the deed of the 3d of March 1831, by which the defendant Gantt and his wife conveyed to the defendant Kennerly certain real estate, of which the wife was the fee simple owner. There is no substance, *1 think, in the objection taken to the certificate by the justices of the privy examination of the feme. They certify that she was examined “separately and out of the hearing of her husband.” This I consider equivalent to the words used in the form given by the statute, “privily and apart from her husband. ’ ’

The effect of this deed was, in the contemplation of a Court of Equity, to convert the property thereby conveyed from realty into personalty. It is well settled ‘ that land directed or agreed to be sold and turned into money, (upon the principle that' what is agreed or ought to be done is considered as done,) shall be treated as immediately assuming the quality of personalty, and as. continuing impressed with that character, until some person entitled to the proceeds shall elect to take the subject in its original, character of land. In this case, the'pur-noses of the conveyance to the trustee are declared" to be, that he may sell the lands for the best price he can get therefór', for the use and benefit of the partj' of the first part, (meaning the grantors Gantt and his wife,) and to enable him the trustee to make good and sufficient deeds to' the' purchaser or purchasers. The obvious intent of the instrument was to divest the title of the feme, and vest it in the trustee, in order to effect sales of the property,' from time to time, and place the proceeds at the disposal of the grantors.

The subject of the deed was thus converted from realty into personalty, and in its new character the equitable right to it was conferred upon the husband and wife jointly. The husband thereby acquired the power to alien or incumber it without the concurrence of the wife, and in the event.,'(.which has happened) of his surviving. her, the whole interest, so far as undisposed, of by him, became his absolute property.' This is unquestionable upon principle,' arid the case of Collingwood v. Wallis, .1 Eqii. Cas. Abr. 395, is directly in point, as regards the right of the surviving hustiamd.

*In that case, husband and wife, with intent to raise money to' pay husband’s debts, and other debts charged on wife’s estate, by lease and release and fine, conveyed wife’s real estate to" trustees, to sell and dispose thereof for payment of the debts; and any balance in the trustees’ hands to be paid to the husbárid and wife, as they should by writing direct or appoint. The trustees sold all the' lands, except two farms in A., and paid all the debts. The wife died in the lifetime of the husband, leaving a daughter, issue of the marriage. The husband devises his lands in A. to his brother; leaving no other lands but the two farms, which remained unsold after his death ; ’ and bequeaths to his bastard children a surplus of money from the sales which' had been made: thus disinheriting the legitimate daughter of himself and wife; who Claimed the two farms as heir of her mother'. The Lord Chancellor decreed the trustees to convey the unsold lands to the devisee of the husband; saying that the trustees having the power to sell the whole, it must be considered in equity as if actually sold, in which case the money would go to the hus-baud; and so must the land too, else it would be in the power of the trustees to make it land or make it money at their pleasure, and so give it to whom they should think •fit':'',b,ut 'the intention appearing [from the nature of the case] that the residue should go to the husband and wife and the survivor of them, it must go accordingly, whether land or money.

In the case before us, the conversion of the subject from realty into personalty, is decisive against the pretension of the defendant Norborne Beall Gantt, claiming as the heir at law of Mrs. Gantt, his mother. The Chancellor supposes that there was an equity of redemption in Mrs. Gantt, which descended to her heir; but this, it seems to me, cannot be so. The whole of her rierht, title and interest in the subject was divested by the deed to the trustee, and the change thereby effected *in the character of the property; which has passed to her surviving husband, and those entitled under him, to the total exclusion of her representatives.

The only possible ground upon which the claim of Mrs. Gantt’s heir at law could be sustained, is a reconversion of the property from personalty^ into realty, by the exercise of some election' (of course made subsequently to the deed of March 1831), to hold the subject as land instead of money. But there was no such election, at least none which could have the effect of reinvesting Mrs. Gantt with any title to the property. If it should be supposed that the mortgage of the 28th of April 1831, executed by Gantt and wife to Mrs. M’Clanachan, is evidence of an election to waive a sale of the property by the trustee under the deed of March 1831, and hold the subject as realty; inasmuch as it conveys the same to the mortgagee as land, and provides for its redemption, or foreclosure and sale, as if it were real estate; I answer that I deem it unnecessary to enquire into the correctness of that suggestion. If the giving of the incumbrance to secure a debt of the husband, (the form of which is unobjectionable, whether the prooerty thereby conveyed was supposed to be realty or personalty,) could be considered an election to hold it as land instead of money; still the election would not be that of the wife, who during the coverture had no power so to elect. Pratt v. Taliaferro, 3 Leigh 419. The election would be that of the husband, he having complete control and dominion over the subject, and would enure to his sole benefit; unless shewn to have been made for himself and his wife jointly; and in that'case the resúlt-would be, not .a remitter of the wife to her former estate in the land, but a transmutation of their joint interest in the personalty to a joint estate in the realty. They would thus be constituted joint owners of the land, but not joint tenants; and the estate would devolve upon the survivor, for each would have the entirety, and there *could be no partition between them. Thornton v. Thornton, 3 Rand. 179.

In no point of view, therefore, has the heir at law of Mrs. Gantt shewn any title, legal or equitable, to the subject in controversy. And this brings us to the consideration of the rights of the other parties claiming under the surviving husband.

The deed of March 1831, to the trustee Kennerly, having impressed upon the property the character of personalty, it follows necessarily that the husband, at least while it continued impressed with that character, had the perfect power to alien or incumber it without the concurrence of the wife. It cannot be pretended that any thing occurred to remove the impression so received, between the date of that deed and the mortgage to Mrs. M’Clanachan made within two months thereafter. It was therefore wholly unnecessary for the wife to unite in that mortgage. Her doing so could not affect its validity as the act of her husband; and consequently the objections which have been taken to the certificate by the justices of her privy examination require no consideration. Nor can it be supposed that the mortgage is less effectual because it does not notice the new character impressed upon the land thereby conveyed. It was still land, and properly described as such, though impressed with the character of personalty; and the instrument embraced all the right and title of the mortgagor in and to the subject, of whatever nature that may have been in the contemplation of a Court of Equity.

Thus it will be seen that the attitude of Mrs. M’Clanachan, one of the defendants, is that of an incumbrancer, under a mortgage duly executed to her, by the legitimate owner of the property, to secure a just debt: and the question is, whether her rights are subordinate to those of Siter, Price & Co. the plaintiffs in the cause.

*Siter, Price & Co. in the first place, claim under a mortgage, dated the 13th of June 1829, executed by Gantt and wife to the defendant Kennerly, to secure a debt due to him from Gantt by bond. But this incumbrance was subject to a prior mortgage executed by Gantt and wife to the defendants Byers & Butler and others, to secure debts due from Gantt to them respectively. There are sufficient funds within the control of the Court, produced bjr sales of parts of the mortgaged premises, to discharge the sums due upon the two in-cumbrances ; and an appropriation of those funds, so far as requisite, to that object, has been made by the decree of the Chancellor. The mortgages may therefore be considered as having been paid off. Still, however, a question arises whether the plaintiffs can tack to Kennerl3r’s mortgage other claims derived from him, but not secured by that incumbrance. These claims consist of Gantt’s promissory note to Ma-ginnis for ISO dollars, due the 10th of March 1831, assigned to Kennerly; Gantt and Blackwell’s negotiable note to Kennerly for 3612 dollars 96 cents, dated the Sth of June 1831; and Kennerly’s open account against Gantt, for 3524 dollars 44 cents, in-currcd between the 1st oí January 1831, and the 24th of March 1832.

The English doctrine of tacking, in the cases to which it is applicable, prevents a mortgage from being redeemed or discharged, without the payment also of other debts contracted by the mortgagor to the mortgagee; and subjects an intermediate incumbrancer to the necessity of paying off a lien subsequent to his own, as the condition of redeeming a mortgage prior to both. When the doctrine is applicable, it is in favour of an elder mortgagee, holding another debt not secured by the mortgage; or of a junior mortgagee, who has advanced his money, without notice at the time.of an intermediate incumbrance, and 'after-wards purchases in a prior mortgage, in order to protect himself against the mesne incumbrance, though then having notice thereof.

*Upon the first branch of this doctrine, the early cases held, that if the mortgagee was also the creditor of the mortgagor by bond, the latter could not redeem without paying off the bond as well as the mortgage. This was required of him as a supposed equitable condition: but in truth it had no just foundation in equity. The mortgagor when he conveyed away his land, did so with the reservation of a right to redeem, by paying the debt which was the consideration of the contract; and to impose another condition not contemplated bj' the parties, instead of leaving the creditor to his personal remedy, was an unjust and oppressive exaction. Eater decisions have restrained the rule to narrower limits, within which it is now placed upon a different principle. The mortgagee is no longer permitted to tack his bond debt as against the mortgagor himself, or a subsequent incumbrancer, nor as against other creditors over whom he is not otherwise entitled to priority; but he may tack as against the heir of the mortgagor, or a beneficial devisee, who stands in the place of the heir. And the reason for the distinction is, that the bond is no charge upon the land; which, however, being assets in the hands of the heir or devisee, the tacking the bond to the mortgage is allowed against him, merelj- to prevent a circuity of suits, and from no other consideration whatever.

The first branch of the doctrine of tacking, also embraces the case of a mortgagee invested with the legal title, who makes further advances to the mortgagor, upon the credit of the land mortgaged. If future advances be provided for by the mortgage itself, then a subsequent incumbrancer must take subject to that provision of the contract; as much so as in regard to the primary debt, even though the mortgagee have notice of the subsequent incumbrance. The same consequence will follow from a written agreement between the mortgagor and mortgagee, subsequent to the, mortgagee, by which further *advances are made upon the credit of i the same security; provided, as regards a ' mesne incumbrance, the advances have been made without notice thereof. So, though there be no express agreement, yet if a further sum be lent by the . mortgagee upon a statute or judgment, inasmuch as that gives a general lien on the land, it shall be intended to be upon the same security.

The second branch of the doctrine allows a bona fide mésne incumbrance to be squeezed out by a junior mortgagee, who had laid out his money without notice of the mesne incumbrance; and this is effected by the contrivance of purchasing in a prior incumbrance and uniting it to his own. As in the case of three successive mortgages, or of a first and second judgment and then a mortgage; the last incumbrance by mortgage, if he had no notice of the mesne incumbrance at the time of taking his own, may purchase in the first, and so obtain priority for both.

This whole doctrine of tacking, unless in the case of further advances originally provided for by contract, is extremely harsh and unreasonable. Natural justice obviously requires that valid incumbrances should be paid according to their priority in point of time. The first incumbrance is an appropriation of the property, by the consent of the owner, or the operation of law, to the satisfaction of a just demand; and so a second incumbrance is an appropriation, in like manner, of what shall remain after satisfaction of the first. The same is true in regard to every successive incumbrance; and there is no more reason for placing a third incumbrancer over the head of the second, than for placing the second over the head of the first. The first incumbrancer who, after a second in-cumbrance, enlarges his demand beyond the effect of his original contract, is in truth as regards the second, only a third incumbrancer; and a third incumbrancer is nothing more as regards his original demand, though he purchases in the first in-cumbrance.

*The doctrine is justified by no one, upon the principles of natural justice, and rests for its support upon artificial reasoning. It was introduced and is sustained upon the ground, that the mortgagee entitled to its benefit has the advantage of the legal title, and has equal equity, and therefore the law shall prevail. Marsh v. Lee, 2 Vent. 337; Brace v. Dutchess of Marlborough, 2 P. Wms. 491; Worthley v. Birkhead, 2 Ves. R. 571." But the assumed equality of equity is not well founded. 4 Kent’s Comm. 178; 1 Story’s Equ. 399. There is no colour for it, except in the idea that each claimant is a bona fide purchaser for a valuable consideration; but that does not produce equality in point of right. He whose incumbrance is thus overreached is prior in point of time, and at least equal in equity; and therefore should have the benefit of the maxim, Qui prior est in tempore portior est in jure.

The elements of the doctrine, it will be seen, are the possession by the preferred mortgagee of the legal title, and the preexistence or accession of a distinct equity, without notice of the mesne incumbrance. Hence it. is obvious, that it could never have been introduced into a country enjoying the benefits of a general registry, intended to give notice to the whole world of all conveyances and incumbrances, and. to supply the place of actual notice. In England, a general registration law has never ' existed — a defect in her jurisprudence which has occasioned much inconvenience and litigation, and many difficulties in the adjudication of conflicting equities. It is true they have partial registration laws,, applicable only to the county of ■Middlesex, (exclusive of London,) parts of ' the county of York, and the town of Kingston- upon Hull; and these seem to have been intended to make the registry notice to all persons, and to dispense with the necessity of parol proof of notice: and such was the opinion of a great Judge, Lord Hardwicke, in Hine v. Dodd, 2 Atk. 275; an opinion, however, which has ' hot *prevailed; and the contrary doctrine is now well established.

The English Courts seem to have construed’ these partial registration laws in connection with the rules of equity in regárd to constructive notice. The statutes provide that memorials of deeds shall be registered in offices established for the purpose, and that unless so registered they shall be adjudged fraudulent and void, against subsequent purchasers or mortgagees for a valuable consideration. But they ’do not provide what shall be their effect- when registered; and it is held that they give no more efficacy to those that are registered than they had before, and consequently that the registration is not notice to a subsequent purchaser or mortgagee. This interpretation is founded, in a great measure;, upon the supposed- mischievous consequences of regarding the registry as constructive notice; for then it would, have to be taken as notice of every thing contained in the memorial, and to be notice though the deed be not duly registered. Bushell v. Bushell, 1 Sch. & Lef. 103; Latouche v. Dunsany, Id. 157. These consequences might have been avoided by holding the registry, when duly made, and to the extent of the information which it gives, to have been intended by the Legislature to stand in place of actual notice. And'this in effect is the construction which has been given to the Irish registration act of 6’Anne, ch. 2, which isa general law for the whole of that country; (but is different in its terms from the English statutes;‘)’for it has been held that it gives preference to instruments affecting lands, both at law and in equity, according to the priority of registration. Bushell v. Bushell, supra; Eyre v. Dolphin, 2 Ball & Beat. 299.

To my mind, it is difficult to conceive a systém of general registration, introduced for the purpose of giving information to purchasers and incumbrancers in regard to the true state of the title, in which the Legislature *could contemplate their -being at liberty to neglect the safe and certain means thus provided, and deny having resorted to them; and so put a prior purchaser or incumbrancer upon pa-rol proof of actual notice, or actual search of the registry. In nearly all the States of this Union, the registry is held to be notice to subsequent purchasers and mortgagees, provided the deed has been duly proved or acknowledged. 4 Kent’s Comm. 174; 1 Story’s Equ. 392; Johnson v. Stagg, 2 Johns. R. 523. And this concurrent construction of the registration laws of various States, is believed to be founded as much upon the general scope and policy of such laws, as the particular provisions of the statutes.

In Virginia, prior to the revisal of 1819, our registration acts will be found embodied in the act of 1792, regulating conveyances. Old Rev. Code, p. 156, 157. The provisions of which bearing on this subject are contained in the 1st and 4th sections, which must be construed together. It will be seen that they are not copied from the English local registration laws, and that although in most respects substantially the same, they are not identically so. In the 1st section there is a modification of the general provision which has an important bearing in weighing the terms of the statute. The language employed is, “nor shall any such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless” &c. The notice he referred to of course means actual notice. Now, what is the obvious meaning of the provision so modified? Is it not that though a subsequent purchaser have no actual notice of the deed, yet if it be acknowledged or proved and lodged with the clerk to be recorded according to the provisions of the act, it “shall be good against him?”

The interpretation of the act of 1792, was presented to the consideration of this Court in the case of Doswell v. Buchanan’s ex’ors, 3 Leigh 365. The question there *was as to the effect of the registration of a deed conveying an equitable title only; but the three Judges who sat in the cause expressed their views upon the operation of the statute generally. Judges Carr and Green, conforming to the English authorities, were of opinion that though the statute requires deeds to be recorded, and makes them void as to subsequent purchasers without notice if not recorded; 3'et that the recordation is not notice to subsequent purchasers, and gives them no additional effect. Judge Cabell’s opinion, on the contrary, was that the English authorities were not applicable, and that the true policy, spirit and meaning of our statute was to make the registry notice to subsequent purchasers. In consequence of this division of the Court, the construction of the act of 1792 is still unsettled.

But now by the revised act of 1819, 1 Rev. Code, p. 362, 365, there is an express provision, giving effect and validity to all duly registered deeds against subsequent purchasers, though for a valuable consideration and without notice; and a further provision that the regular registration of title bonds, and other written contracts in relation to land, shall be taken and held as notice to all subsequent purchasers of the existence of such bond or contract.

It is easy to perceive that the operation of the registry laws of Virginia, and of other States of the Union, is to cut up by the roots the English doctrine of tacking, so far as it affects intermediate purchasers and incumbrancers. 4 Kent’s Comm. 178; 1 Story’s Equ. 405, n. 2; 1 Lomax’s Dig. 390 ; 2 Rob. Prac. 68. Such is the effect of the Irish registe act, and the reason (equally applicable to the registry laws of this country) is thus lucidly and forcibly stated by Lord Redsdale: “The meaning and intention of the act was to secure persons taking charges upon estates — to provide that they should have that to resort to which would enable them to take *with more security. Now tacking does tend most strongly to prevent purchasers (in which description mortgages are included)from being so secured, because by its operation all intermediate incum-brancers are to be prejudiced: they cannot be secured, unless the effect of the act be to require all instruments affecting the estate to be brought by proper memorials upon the registry. The provisions of the act seem intended to enable a person dealing with the estate to say, ‘all instruments that can have effect against me are brought on the registry, and none which are not there can be brought against me.’ This necessarily excludes tacking; for that is giving effect to an instrument which a person is not enabled by means of the registry to discover; and the manner in which the act is framed shews that such was the idea of the Legislature. ’’ Latouche v. Dunsany, 1 Sch. & Lef. 159.

If this were not so, still the doctrine of tacking would avail the plaintiffs nothing; for they have not presented a case falling within its principles. The doctrine is purely artificial, and as remarked by Lord Hardwicke, in Wortley v. Birkhead, 2 Ves. R. 573, could not prevail in any other jurisprudence than the English, by which the jurisdiction of law and equity is administered in different Courts, and creates different kinds of rights in estates. It is based upon the supposed advantage gained by him who holds the legal title, and is not applicable where that advantage does not exist. It cannot be enjoyed by one who has not obtained the legal title, or the better right to call for it. In all cases where the legal title is outstanding, the several incumbrances must be paid according to their priorities in point of time; and therefore in Brace v. The Dutchess of Marlborough, 2 P. Was. 491, it was held that a puisne incumbrancer who has bought in a prior mortgage, in order to tack it to his puisne incumbrance, cannot do so where there is a still prior mortgage. 1 Story’s Equ. 405; Coote on *Mortg. 507. Nor will even the possession of the legal title enable an incumbrancer to tack, where he does not hold it in his own right, but in autre droit, as trustee for another. Coote on Mortg. 497; Morret v. Paske, 2 Atk. 52. Tacking takes place only where' the party holds both securities in the same "right. 1 Story’s Equ. 404 ; 2 Covt. Pow. Mortg. by Rand, 559; Barnet v. Weston, 12 Ves. R. 130. And a regularly executed mortgage cannot be enlarged by tacking subsequent advances to it, in consequence of any agreement by parol. Ex parte' Harper, 19 Ves. R. 477.

In the casé before us, Kennerly, under whom the plaintiffs claim, is not a mortgagee of the legal title, but only of the equity of redemption incident to the prior mortgage executed to the defendants Byers & Butler, &c. Nor did Kennerly obtain the legal title by the conveyance to him of the 3d of March 1831; which conveyance, moreover, was made to him not in his own right, but in his character of trustee. And the agreement, if any be proved, under which the plaintiffs seek to tack further advances by Kennerly, rests altogether in parol. In addition to all this, it is not pretended in the bill that the further advances were made upon the credit of Kennedy’s mortgage, or without notice of Mrs. M’Cianachan’s mortgage.

In every point of view, therefore, the claim of the plaintiffs, so far as it rests upon the doctrine of tacking, is utterly ■without foundation. Indeed, that ground is but faintly presented in the bill, and has not been urged in the argument; and I would have said very little on the subject, but for the light which the discussion of it serves to throw upon the other grounds on which the plaintiffs insist that they have a priority of lien; and which I will now proceed to consider.

Independently of Kennedy’s mortgage, the plaintiffs in their bilL assert a lien upon the lands in question, and seek to subject them in the character of incumbran-cers, *for debts not secured by that mortgage. This they’ attempt to do by force of the deed of the 3d of March 1831, executed to Kennerly, upon the trusts already mentioned; connected with an allegation that the deed was made with an intent and for purposes different from those apparent upon the face of the instrument.

The bill, after setting forth Gantt’s promissory note to Maginnis for 150 dollars, made the 23d of August 1830, and payable the 10th of March 1831, and endorsed to Kennerly; represents “that the said John Gantt being thus indebted to the said George H. ICennerly, and having in addition thereto a large and rapidly accumulating account in the store of said Kennerly, none of which he was prepared to discharge ; with his wife, the aforesaid Virginia A., executed to the said Kennerly another deed of the 3d of March 1831.” It then describes the property and the trust declared by the deed, and proceeds thus: “But your orators are informed, and so allege, that the true design was to create a fund for the payment of the debt of 150 dollars aforesaid, and the other debts which were then so accumulating in the hands and on the books of said Kennerly. They charge that at the time the said deed was executed, it was expressly understood that upon the sale of said land, or any part thereof, the proceeds were to be applied to the payment of the aforesaid debts, and any other which said Kennerly might have upon said Gantt. They are informed, and so charge, that the accounts of said Gantt upon the books of said Kennerly:commenced on the 1st day of January 1831, and terminated on the 24th day of March 1832, and the unsettled amount thereof on that day, was 3524 dollars 44 cents, all of which remains due; and they are further informed, and so charge, that upon the credit of the fund to be raised by the sales of the lands mentioned in said deed, the whole of said account was contracted.” The bill then sets forth the negotiable note of Gantt and Blackwell, made the *5th of June 1831, and payable,six months thereafter to Kennerly; and by him endorsed to Maginnis, and charges “that said note was given for that amount of goods furnished, to be used in the mountain trade up the Missouri river, upon the express condition that the payment thereof should be secured out of the proceeds of the land conveyed as aforesaid.” And in another part of the bill, it speaks of the deed to Kennerly as a second mortgage, and the fund thereby provided as a mortgage fund, out of which it was designed and understood, at the time the above mentioned debts to Kennerly were contracted, that they should be paid.

It will thus be seen that this is an at tempt to convert by parol, a trust for the benefit of the grantors into a mortgage for the benefit of the trustee. If such evidence be admissible against subsequent purchasers and incumbrances, without notice of the alleged parol agreement or understanding, then, it seems to me, there can be:but little efficacy in the statute against frauds and perjuries, or in our registration laws.

There is no principle more elementary, both at law and in equity, than that which excludes parol evidence offered to explain, enlarge, or vary the terms of a deed or other written contract. This rule of evidence has, by operation of the statute of frauds, become in relation to real estate, a canon of property. It has in some cases been broken in upon by the Courts of Equity, from considerations arising out of fraud, accident, mistake, or breach of confidence. These considerations have led, amongst other instances, to relief against absolute deeds intended by the parties to operate as mortgages. But no such considerations arise in the case before us; and it would be difficult, I think, to find an example where a party to a deed, with a. full knowledge of its legal import and effect, has been permitted to shift a declared trust in favour of the grantor, or any other person, so as to make himself the cestui que trust, instead of the trustee. ^'However this may be, between the parties themselves, it is surely inadmissible against bona fide purchasers and incumbrancers, having no other notice than the contents of the instrument itself.

Our law, unquestionably in its present state, avoids deeds and conveyance, if unregistered, to the prejudice of subsequent purchasers and incumbrancers in good faith; and when duly registered, makes them effectual as notice to all the world. But.the notice is of the contents of the instrument, and of nothing more; not of any secret condition, or trust, or equity, between the parties. Frost v. Beekman, 1 Johns. Ch. R. 288; 18 Johns. R. 544, S. C.; Parkit v. Alexander, 2 Johns. R. 510; St. Andrew’s Church v. Tompkins, 7 Johns. Ch. R. 14; Davison v. Waite, 2 Munf. 527; Colquhoun v. Atkinson, 6 Munf. 550; Bell v. Hammond, 2 Heigh 416. If this were otherwise, then the registry, instead of being a protection, would be a snare to others dealing with the subject. As against bona fide subsequent purchasers and incum-brancers, a registered deed or conveyance must be taken to express truly the agreement between the parties; and all extrinsic stipulations, dealings and arrangements can stand upon no better footing than an unregistered contract; and if by parol, of a contract incapable of registration. They cannot operate to the prejudice of the subsequent purchaser or incumbrancer; but may prove beneficial to him, by destroying the effect of the deed or conveyance as a registered instrument. Thus, if a deed absolute on its face, and unaccompanied by any defeasance, be intended and agreed between the parties to operate as a mortgage, it can have no effect, in either character, against a subsequent purchaser or incumbrancer, who has not actual notice of the true nature of the transaction. Day v. Dunham, 2 Johns. Ch. R. 182; 15 Johns. R. ,555.

In a contest for priority between incum-brancers, the 'purposes- of - justice do not require the admission of parol *testimony, to ■ vary the terms or legal effect of a registered instrument; and the necessity of resorting to it, can only arise from the negligence or want of good faith of the party who offers it, or of those under whom he claims. There can be no better illustration of the mischiefs of such evidence than is furnished by the case before us.

It is not denied that Mrs. M’Clanachan is a bona fide creditor, to the full amount secured by her incumbrance. There can be no objection whatever to the consideration of the debt due to her, stated in her mortgage to be her interest in lands sold and conveyed to the mortgagors; in all probability her do.wer interest in the very lands in question. No notice on her part at the time of taking her incumbrance is charged in the bill, even of the existence of the deed of March 1831; much less of the secret matters of equity relied upon by the plaintiffs ; and all notice is expressly denied in her answer. That deed, as a registered instrument, could give her no information whatever, of any agreement or understanding between the parties, that it was to operate as a mortgage in favour of the trustee; or even of any indebtedness to him, prospective or otherwise, on the part of the grantors. The instrument on its face was in no wise for the benefit of the trustee, but wholly for the convenience and benefit of the grantors, whose right under its provisions to alien or incumber the property conveyed was quite as unlimited as before its execution. If the deed had been lying before Mrs. M’Clanachan at the time she took her mortgage, it would not have furnished the slightest hint of any objection to the title she was about to acquire.

The parol evidence introduced by the plaintiffs is that of a single witness, whose testimony is remarkably loose, general and sweeping; and though I do not question the veracity of the witness, notwithstanding some discrepancies in his statements, yet it is obvious that such ^ptoofs could be easily manufactured to suit the occasion, without much danger of detection. The objections, however, to the admissibility of any parol evidence upon the subject, stand out in bold relief upon the face of the bill, and require no analysis of that which has been produced.

Thus I think it clear that the plaintiffs cannot derive the priority asserted by them, otherwise than from the true import and legal effect of the instrument under which they claim: and these I take upon this question to be the same, whether the property be regarded as realty or personalty.

The rule of equity which treats land directed to be sold as personalty, and money directed to be invested in land as realty, was not devised for the advantage of the agent or trustee by whose agency the commutation was to have been effected; but for the advantage of the beneficiary or cestui que. trust. In truth, the trustee is supposed to have no interest in the matter, and his convenience or benefit is so far from being contemplated by this fiction of equity, that the tendency of it is to restrain or defeat his power and authority over the subject. And the very reason for the rule assigned in the books is, that otherwise, it would be in the power of the trustee to make the property land or money, at his choice; and so give it to those entitled to it, in the one character or the other, at his pleasure. The effect of the rule is to give to the cestui que trust the dominion and control of the subject; to enable him to strip the trustee of his agency and revoke his authority; and to take or dispose of the property in its new character, or leave it to the disposal of the law at his own option.

It is true, an equity in favour of the trustee dehors the instrument may arise out of transactions between him and the cestui que trust. Thus if the latter should seek to bring the former to an account of his proceedings in execution of the trust, or to divest him of the *title, whether legal or equitable, which had been conveyed to him, without allowing him his just and proper set-offs and advancements; a Court of Equity might impose equitable conditions upon the relief sought, resulting in a kind of lien upon the subject, as between the parties. And I will not say that in the present case equity would not, upon the application of the trustee, or those claiming under . him, create and enforce such a lien, as against the cestui que trust and his representatives. But the claim of the trustee assumes quite a different aspect when asserted against a bona fide purchaser or incumbrancer, who had no actual notice of the dealings of the former with the trust subject, and who could derive none from an inspection of the trust deed. In this case, the registry, if examined, would (had it then been made), have informed Mrs. M’Clanachan of the conveyance to the trustee, for the benefit of the grantors; of the authority conferred on the trustee to make sale of the property, with the acquiescence of the grantors; and of his dut3' to account with them for the proceeds of the sale; and it might further have informed her negatively of a matter notorious in itself, that no such sale had been made, and of course, that the trust remained unexe-cuted by the trustee. But it could have informed her of nothing more; it could not have informed her of dealings between the trustee and cestui que trust, not provided for or contemplated by the provisions of the trust deed. Nor was she bound to make enquiry after any such dealings. There was nothing in the instrument to put her upon the enquiry, and if there had been, she was not bound to make it.

The doctrine that whatever puts a party upon enquiry amounts to notice, is inapplicable to the provisions of the statute, in regard both to registered and unregistered conveyances. The registry is not intended to put subsequent purchasers and incum-brancers upon enquiry, but to put an end .to the necessity of all enquiry. It is notice *in point o'f la'vt ' to all persons of the contents, import and legal effect of the registered instrument; but not of other matters connected with the subject, not apparent upon the face of the instrument. The statute contrasts this notice in point of law of registered conveyances, with notice in point of fact of unregistered conveyances, and by fair construction, with notice in point of fact of any title or claim not disclosed by a registered instrument. The notice in point of fact must be such as to affect the conscience of the subsequent purchaser or incumbrancer. It may be either actual, in other words direct and positive, or it may be circumstantial and presumptive. But it is not sufficient if it merely puts the party upon enquiry. It must be so strong: and clear as to fix upon him the imputation of mala tides. Day v. Dunham, 2 Johns. Ch. R. 182.

The error in the argument of the appel-lees’ counsel is in the assumption, that the fiction of equity which converted the property in question from realty into personalty placed it, in its new character of personalty, in the hands of the trustee Kennerly. But this assumption is, I think, without any just foundation. The property is still land, though impressed with the character of personalty; and the actual possession of it is in no wise changed. Before the deed of March 1831, it was in the possession of the grantors; and so it is still, as regards the survivor, notwithstanding that conveyance. The deed conveyed to the trustee the title, (I mean the equitable title,) but nothing more. It is not pretended that there was any tradition of the possession to the trustee. The right to the possession until a sale should be accomplished, and to the perception of the intermediate profits, continued in the grantors. The trustee could not have evicted them by an action at law, for want of the legal title; and if he had been clothed with the legal title, a Court of Equity would have restrained him from using it for such a purpose.

*How then did the trustee Kennerly acquire any right to, or interest in the subject? There is no pretence of his having claimed it as assignee or purchaser; and if he had, then a question would have arisen whether his claim in that character, the assignor or vendor still retaining the possession, would have been good against a subsequent purchaser or incumbrancer without notice. But no such question arises in this case. His claim is, as I have shewn, that of an incumbrancer by parol, for debts due to him individually, and is equally invalid whether the property be regarded as real or personal. The law requires all incumbrances by way of mortgage or trust, of personal as well as real property, to be in writing, and to be duly registered, as against subsequent purchasers or incumbrancers. There was not, nor could have been from the nature of the subject, any pawn or pledge of the property to the trustee, as there may be of chattels movable, for example a slave or a horse; a species of security which the law tolerates, because thé notoriety of. the possession gives notice 'to every one that the pawnee is either the absolute or the qualified owner. And if the subject be considered as a chose in action, there was not, nor could have been any transfer or deposit of the evidences of title. An equitable mortgage by a deposit of title deeds is a much stronger case; but since our registration laws, there can be no such security against a subsequent bona fide purchaser or incum-brancer, and we are happily rid of so pernicious a doctrine. 4 Kent’s Comm. 151; 2 Story’s Equ. 289; Sug. on Vend. 694, 5; Colquhoun v. Atkinson, 6 Munf. 550.

The result of the foregoing views, if correct, is that the Chancellor’s decree is erroneous in giving priority to the plaintiffs over Mrs. M’Clanachan. And it matters not how far Gantt’s indebtedness to Kennerly may have accrued before or after the deed of March 1831, or before or after Mrs. M’Clanachan’s mortgage, or before *or after the registration of either, or whether in the whole or in part it be called debts or advancements. It is certain, if that were material, that it did not arise out of any performance by Ken-nerly of his trust duties under the deed of March 1831; in regard to all which he has been wholly quiescent.

In this result there is no injustice. If Kennerly thought fit to trust Gantt upon his personal responsibility or good faith, or with the expectation that trust moneys would come to his hands, or upon any parol agreement or understanding with him that he should have a lien upon the land in question, without taking the proper steps to secure such lien; he and those claiming under him must bear any loss consequent upon such imprudence, and cannot be permitted to throw it upon a bona fide lawful incumbrancer, who may have been misled into dealing with the subject by the negligence of her adversary, and who has both law and equity on her side.

I do not perceive any errors in the decree besides those indicated by the views above presented. And the other objections taken to it require no consideration, after what has been said. If priority over the plaintiffs be given to Mrs. M’Clanachan, to the extent of her mortgage, she can have no remaining cause of complaint. The elder mortgagees will be satisfied by the provisions of the decree. The appellant Nor-borne Beall Gantt, as I have shewn, has no interest in the subject. And the defendant Gantt has taken no appeal.

The proper modifications of the decree, I think, will be to direct a sale of the fee simple in the whole of the lands embraced by the deed of March 1831, and Mrs. M’Clanachan’s mortgage; the satisfaction of the latter out of so much of the proceeds of sale as shall arise out of such of the property as is thereby conveyed; and the application, first, of the residue of the funds in the hands of the defendants North and Wilson towards the satisfaction *of the personal decree in favour of the plaintiffs against the defendant Gantt; and next the application to the further satisfaction of that personal decree of the residue of the proceeds of such sale, so far as requisite for that purpose; and finally the payment of any still existing residue of those proceeds to the defendant Gantt.

CABELE, P., concurred in the results of Baldwin’s opinion.

STANARD, J., dissented.

The decree of the Court was as follows:

The Court is of opinion, that by the deed of 3d of March 1831, from John Gantt and Virginia A. his wife to the trustee Ken-nerly, the whole estate of the grantors in the lands thereby conveyed became vested in said Kennerly, upon the trusts thereby declared, that is to say, that he should sell said lands for the best price he could obtain therefor, for the use and benefit of the grantors, and convey the same to the purchaser or purchasers thereof by one or more good and sufficient deeds; that the obvious intent of said instrument was to divest the fee simple title of the feme and vest it in the trustee, in order to accomplish sales of the property, from time to time, and place the proceeds at the disposal of the grantors ; that the effect thereof was, in the contemplation of a Court of Equity, to convert the property thereby conveyed from realty into personalty, and to confer it, in its new character, upon the husband and wife jointly; that the husband thereby acquired the power to alien or incumber it without the concurrence of the wife, and in the event (which has happened) of his surviving her, the whole interest, so far as undis-posed of by him, became his absolute property; and that the appellant Norborne Beall Gantt, the heir at law of the *female grantor, has in no point of view shewn an3r title, legal or equitable, of the subject in controversy, or any interest therein. The Court is further of opinion, that the character of personalty ■having been thus impressed upon said lands, it was wholly unnecessary for the said Virginia A. Gantt to unite with her husband in the mortgage to the appellant Mildred M’Clanachan; that her having done so cannot affect its validity as the act of her husband; and consequently, that the objections which have been taken to the certificate by the justices of her privy examination, require no consideration. And the Court is further of opinion, that the said deed of trust of the 3d of March 1831, to the trustee Kennerly, appears upon its face to be in no wise intended for his benefit, and conferred upon him no beneficial interest whatever in the subject thereby conveyed: that the parol evidence introduced by the appellees Siter, Price & Co. for the purpose of proving that at the time of the execution of said deed of trust there was a parol agreement or understanding between said John Gantt and said Kennerly that the same should operate as an incum-brance in favour of said Kennerly to secure debts to him from said Gantt, whether then existing, or thereafter to be contracted, is wholly inadmissible; and that whatever equity the said Kennerly, or the said Siter, Price & Co. claiming under him, may have 'as against said Gantt to treat such debts as advancements made to him upon the credit of the trust subject, and as constituting a lien in their favour thereupon, they can have none as against the appellant M’Clan-achan, the aforesaid trusts declared by said deed of the 3d of March 1831, remaining wholly unexecuted, and she appearing to be a subsequent bona fide incumbrancer, without notice, actual or by implication of any such advancement. And the Court is further of opinion, that the said Kennerly, and the said Siter, Price & Co. claiming under him, have no right, at least as against the said M’Clanachan, to tack to their ^mortgage of the 13th of June 1829, the debts asserted in the bill which are not embraced in that mortgage. The Court is therefore of opinion, that though the said decree of the said Circuit Court properly directs the funds in the hands of the defendants North and Wilson, arising out of the sales of portions of the property embraced in the mortgage to Byers & Butler and others, and in the said mortgage to said Kennerly of the 13th of June 1829, to be applied, so far as requisite, to the satisfaction of the balances due upon those mortgages, in the order by said decree prescribed; yet that said decree ought not to have given priority to the plaintiffs over said M’Clanachan for the other debts claimed by the plaintiffs under said Ken-nerly, in regard to the property embraced in her mortgage; but ought to have given her priority of satisfaction out of the property conveyed by that mortgage: and that, instead of the sales directed by said decree, a sale ought to have been directed of the fee simple in the whole of the lands embraced by the deed of the 3d of March 1831, and said M’Clanachan’s mortgage; and the satisfaction of the latter out of so much of the proceeds of sale as should arise out of the property thereby conveyed; and the application, first, of the residue of the aforesaid funds in the hands of the defendants North and Wilson, after the discharge of the balances due upon the first two mortgages, towards the satisfaction of the personal decree in favour of the plaintiffs against the defendant Gantt; and next the application to the further satisfaction of that personal decree, of the residue of the process of such sale, so far as requisite for that purpose; and finally, the payment of any still existing residue of those proceeds to the defendant Gantt. Wherefore it is adjudged, ordered and decreed, that so much of the said decree of said Circuit Court as is in conflict with the foregoing opinion, be reversed and annulled, and that the residue of said decree be affirmed, with costs to the ^appellants against the appellees Siter, Price & Co., and this cause is remanded to the said Circuit Superior Court to be there further proceeded in, in conformity with the principles of the foregoing opinion and decree.  