
    Samuel A. Beman, Respondent, v. Martha J. Douglas and Others, Appellants, Impleaded with Henry Yell.
    
      Recording Act—a purchaser at a sheriff’s sale is protected under a recorded deed, as against a purchaser of the judgment debtor’s interest as vendor in a contract of sale of the land — burden of proof of notice to the purchaser.
    
    In the absence of fraud a judgment takes effect only upon the actual interest which a judgment debtor has in lands at the time when the judgment is recovered.
    In an action brought to foreclose an executory contract for the sale of land, it appeared that the owner of the premises, Nathan Beman, entered into a written contract in February, 1870, to sell the land to certain persons, and in November, 1870, assigned the contract to a person under whom the plaintiff claimed title. In 1873 a judgment was entered against Nathan Beman, and the sheriff sold, under an execution issued upon the judgment, the interest of Nathan Beman in the property in question, to William S. Douglas and John W. Beman, to whom he subsequently gave a deed, which was recorded in August, 1876; in March, 1880, John W. Beman conveyed his interest to Douglas. It did not appear that either Beman or Douglas had any notice of the contract of sale, or of any claim of the vendees named in it, at the time when they took the sheriff’s deed. The defendants in the action, the widow and children of Douglas, claimed to own the premises under the sheriff’s deed.
    
      Held, that the position of the defendants was correct;
    That while it was true that Nathan Beman had only a naked legal title to the premises at the time of the sheriff’s sale, the purchasers at that sale were nevertheless protected by the Recording Act;
    That the burden of showing notice rested upon the person who sought to impeach the good faith of the purchaser of record;
    That in the absence of proof of notice to Douglas and John W. Beman of the existence of the contract of sale made by Nathan Beman, they acquired by their priority of record a better title than that of the vendees named in the contract of sale.
    
      Appeal by the defendants, Martha J. Douglas and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Clinton on the 5th day of April, 1895, upon the decision of the court rendered after a trial at the Clinton Circuit, before the court without a jury, directing the foreclosure of an executory contract for the sale of land.
    Nathan Beman, being the owner of the premises in question in this action, did, February 15, 1870, enter into a contract in writing under seal with Henry Yell, Amos Yell and Joseph Sampiea,, whereby Beman agreed to sell to the Yells and Sampiea said premises for $1,000, $50 of which they then paid, and agreed to pay the balance in five equal annual successive payments, with interest, and upon payment being fully made said Beman was to execute and deliver to the vendees a good and sufficient deed of the premises; November 5, 1870, Beman assigned the contract to Wead, whose administratrix afterwards, and on July 2, 1884, assigned the same to plaintiff. The premises consist of 119 acres of uninclosed, unoccupied wood and swamp land in Clinton county. Some payments were made by the vendees, but there remained due and unpaid on the contract, November 20, 1894, when the action was tried, $1,619.03, principal and interest.
    September 11, 1873, a judgment was entered and docketed in Clinton county for $1,660.83 against the vendor, Nathan Beman, in favor of Seba Johnson and Darius Ayer, and execution afterwards issued thereon against the property of said Nathan Beman, under which execution the sheriff sold the premises described in said contract to William S. Douglas and John W. Beman, and afterwards in due time gave them a sheriff’s deed thereof, which deed they recorded in the Clinton county clerk’s office August 11, 1876. March 18, 1880, John W. Beman conveyed his interest to said Douglas. There is no evidence that Beman or Douglas, up to the time of receiving the sheriff’s deed, had any notice of the contract of sale or of any claim of the vendees therein named to the premises.
    The defendant Martha J. Douglas is the widow, and Hiram and Effie Douglas are the children of said William S. Douglas, who died • intestate March 24, 1887, and they defend, alleging that by virtue of the sheriff’s deed to said Douglas and John W. Beman and the due record thereof without notice of the said contract, they are the owners of the premises and that their title is not affected by said contract. The court held otherwise, and they appeal.
    
      Cantwell & Cantwell, for the appellants.
    
      T. F. Conway, for the respondent.
   Landon, J.:

The trial court held that the purchasers under the sheriff’s deed could take only the actual interest which the execution debtor, N athan Beman, had in the premises at the time the judgment was. docketed against him, September 11, 1873, and that, as he had, November 5, 1870, by his assignment of the executory contract to Wead, under whom plaintiff holds, parted with all his interest, the sheriff’s grantees took nothing by the deed, and had nothing to protect by recording it. There is no evidence that William S. Douglas and John W. Beman, the purchasers at the sheriff’s sale, had notice- or were charged with notice of the contract or of the rights or-claims of any of the parties to it. They bid and paid $327 for the-land ; this is some evidence — perhaps as much as it is reasonable to-expect—in support of a negative sought to be proven after the death of the purchaser Douglas. We think the finding of the learned trial judge that William S. Douglas was not a bona fide purchaser and was not without notice of the lien of the contract cannot be sustained. This finding seems to be based upon the assumption stated in the opinion of the learned judge that “ the case is entirely barren of evidence in that particular.” But the burden of showing notice: rested upon the plaintiff, who sought to impeach the record purchaser’s good faith. (Brown v. Volkening, 64 N. Y. 76.) Assuming that William S. Douglas was a purchaser in good faith and not charged with notice of the contract, we think the sheriff's deed to-him and Beman was within the protection of the Recording Act. It is the law of this State that in the absence of fraud a judgment only takes effect upon the actual interest in land which the judgment debtor has at the time of the recovery of the judgment. (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Frost v. Yonkers Savings Bank, 70 id. 553; Clute v. Emmerich, 99 id. 342.)

The judgment debtor, Nathan Beman, had the legal title, but had sold the equitable title. This naked legal title, destitute of any beneficial interest, the sheriff sold upon the execution to Douglas and John W. Beman. Apart from the Recording Act, Douglas and John W. Beman practically acquired nothing. They recorded their deed, and, being purchasers in good faith, without notice of the equities arising under the contract of sale, they acquired by their priority of record the better title. (Hetzel v. Barber, 69 N. Y. 1.)

If Nathan Beman, instead of giving a contract of sale, had given a deed of the land to the plaintiff, and he had failed to record it, the subsequent recorded deed to the defendants would be preferred. If the unrecorded deed is not protected, much less the contract for it.

The judgment should be reversed, new trial granted, costs to abide event.

An concurred.

Judgment reversed, new trial granted, costs to abide the event.  