
    *Doswell v. Buchanan’s Ex’ors.
    December, 1831.
    [23 Am. Dec. 280.]
    (Absent Tucker, P., and Brooke, J.)
    Deed of Bargain and Sale — Equitable Title without Warranty — After-Acquired Title — Effect—Case at Bar.— H. having only an equitable estate in land, conveys the land by deed of bargain and sale, without any warranty, to'M. and F. in trust to secure a debt to B. and this deed of trust is duly recorded: afterwards, H. acquires the legal title: and then he sells the land to D. and conveys it to him with .warranty: Held,
    i. Same — Same—Same—Same.—That as the deed of trust executed by H. to M. and F. to secure the debt to B. was executed when H. had not the legal estate, and as that deed contained no clause of warranty, the legal estate subsequently acquired by H. did not enure to the trustees M. and P. to secure the debt to B. so that B. had only alien on the equitable estate,
    a. Same — Recordation—When Not Notice to Subsequent Purchaser. — That the recording of the deed mortgaging H.’s equitable estate to secure the debt to B. was not constructive notice of that deed ■ to D. the subsequent purchaser from H. Por.
    3. Same — Same—Same.—The statute requiring deeds to be recorded, makes them void, as to subsequent purchasers without notice, if not recorded, but gives them no additional validity if recorded.
    
      4. Bona Fide Purchaser — When Complete. — To sustain a plea of purchaser without notice, the party must be complete purchaser before notice; that is, must have obtained a conveyance and paid the whole purchase money.
    The late general Thomas Nelson, by deed dated the 30th December 1788, conveyed a tract of 1500 acres of land called Bullfield in Hanover, to Nathaniel Burwell and three other trustees, upon trust to sell the same for certain purposes therein mentioned. General Nelson was in possession of the whole tract at the time of this conveyance; but he had purchased a part of it (it did not appear what part) from James Harris, who never made any conveyance thereof to him: in this part, therefore, he had only an equitable title: in the residue, his title was complete. He died in January 1789. In December 1789, the trustees, in execution of the trust, sold the whole of Bullfield, at auction, to John Lyons; and they put him into possession of it, but made him no conveyance, retaining the title (it seemed) asa security' for the purchase money. Lyons, after continuing in possession of the land, for some time, sold it to John Hopkins, and put him in possession; Hopkins undertaking *to pay that part of the purchase money, which yet remained due and unpaid by Lyons to Nelson's trustees.
    Some years afterwards, Hopkins and Lyons brought a suit in the superiour court of chancery of Richmond, against Burwell, now the only survivor of the trustees who had made the sale to Lyons, under general Nelson’s deed of trust of December 1788, and the heirs of Harris, to compel those defendants to convey the legal title of the whole tract to Hopkins; and the chancellor, by a decree in that cause, made the 1st September 1808, directed, that Burwell, the surviving trustee, and the heirs of Harris, should, with the assent of Lyons, execute deeds of conveyance of Bullfield to Hopkins, he defraying the expenses of such conveyances. A deed was accordingly prepared, purporting to be a deed between Burwell the surviving trustee and Mrs. Nelson the general’s widow, and Lyons and wife, of the one part, and Hopkins of the other, conveying the land in pursuance of the decree. This deed was dated, and executed by Bur-well and Mrs. Nelson on the 2nd December 1810, and, as to them, was duly recorded in the county court of Hanover in June 1811; but Lyons and wife, who had been made parties to the deed, in order to signify Lyons’s assent to the conveyance as required by the decree, never executed it till 1814, Lyons having till then remained exposed to a claim of Nelson’s trustees for a balance of the purchase money he had contracted to pay them, and which Hopkins had thus long failed to pay. In 1814, the deed was duly executed by Lyons and wife, and recorded in the same court as to them. No conveyance was ever executed, in pursuance of the decree, by the heirs of Harris.
    Meantime, and while Hopkins yet held only the equitable title of Bullfield, he borrowed 5000 dollars of John Buchanan; and by.indenture of bargain and sale dated the 7th May 1808, Hopkins conveyed 800 acres parcel of Bullfield, to Thomas Marshall and George Fisher, in trust to secure the debt to Buchanan. But this deed contained no covenant of warranty, or covenant of any kind for assurance *of the title. It was duly recorded in the general court, at June term 1808.
    After the deed of December 1810 was executed by Burwell and Mrs. Nelson to Hopkins, and recorded, but before it was executed by Lyons and wife, namely, on the 31st July 1811, Hopkins, by articles between him and James Doswell, of the last mentioned date, covenanted to sell and convey the whole of Bullfield to Doswell, for 22,000 dollars, payable in four instalments, the last of which was to be paid the 1st January 1814. And by deed dated the 16th December 1811, Hopkins made a conveyance of the land to Doswell, with general warranty.
    In 1822, Buchanan exhibited a bill against Hopkins, Doswell, and Marshall and Fisher, (the trustees), in the superiour court of chancery of Richmond, in which he insisted and prayed that the trust declared in Hopkins’s deed of May 1808, should be executed, and the 800 acres parcel of Bullfield, thereby mortgaged to secure the debt of 5000 dollars due by Hopkins to him, subjected to the debt, and the interest thereof in arrear.
    Before the defendants put in their answers, Buchanan died, and the suit was revived and prosecuted by his executors, one of whom was Fisher, the trustee named in the deed of May 1808, under which Buchanan claimed.
    Doswell, in his answer, — after objecting that Hopkins, at the time of the execution of the deed of May 1808, had no legal estate in the land, and so no. legal estate passed by that deed to the trustees therein named, —averred, that he himself was a fair purchaser of the whole of Bullfield from Hopkins, after Hopkins had acquired the legal title thereof from Nelson’s trustees, and that he had procured a conveyance of the legal estate from .Hopkins, and paid the whole of the purchase money which he contracted to pay Hopkins, before he had any notice of the deed of May 1808, under which Buchanan claimed; and so holding the legal estate, and having equal equity with Buchanan, he insisted, he was entitled to be protected against Buchanan’s claim.
    ^Pending the suit, Doswell died, having by his will devised Bullfield to his son Thomas; and Hopkins also died, utterly insolvent: and the suit was revived against Doswell’s executors, and his son, Thomas Doswell, to whom he had devised the land, and (proforma) against Hopkins’s heirs and distributees.
    The only controverted question of fact was, Whether 'Doswell had completed the payment of all the purchase money he contracted to pay Hopkins for the land in question, and obtained a regular conveyance of it, before he had any actual notice of the existence of ,the deed of May 1808, under which Buchanan claimed? Upon the proofs in the cause touching this point, it was probable he had, yet there was room for doubt whether he had or no.
    The chancellor, having directed a commissioner to ascertain the balance of the debt due to Buchanan’s executors, who reported that it was 6S60 dollars with interest on 5000 dollars, part thereof, from the 10th May 1826,- — decreed, that, unless the defendants or some of them should pay the same within six months, the marshal of the court should sell the 800 acres .of land mortgaged by the deed of May 1808,. defray the charges of sale out of the proceeds, and bring the residue into court, to be disposed of by future order.
    This court, upon the petition of Thomas Doswell, allowed him an appeal from the decree.
    The attorney general and Johnson, for the appellant.
    1. As Hopkins had not any legal estate but only an equity in the land, at the time he executed the deed of bargain and sale of May 1808, therefore no legal estate passed by that deed to the trustees therein named; the deed conveyed only the equitable estate and the possession, which the grantor then had, for the security of the debt due to Buchanan. Hopkins’s subsequent acquisition of the legal title did not enure to the trustees, so as to unite the legal to the equitable estate conveyed to them by the deed; for the deed *could act on the subsequently acquired legal estate of the bargainor, and have the effect of vesting the legal estate in the bargainees, only by way of estoppel or rebutter; but, as there was no covenant of warranty in the deed, there was no estoppel or rebutter. Harg. Co. Bitt. 2 446, fo. 265, a. b. note 214; Jackson v. Wright, 14 Johns. Rep. 193. And, if in a suit between Buchanan’s trustees and Hopkins, Hopkins would have been estopped by his deed, from claiming the legal estate, yet, in this case, between those trustees and Doswell (a bona fide alienee of Hopkins for valuable consideration) the deed can have no effect by way of estoppel to vest in them Hopkins’s after purchased legal estate. The only doubt, whether a deed of bargain and sale without warranty can operate by way of estoppel to vest in the bargainee the bargainor’s after acquired estate, has arisen in contests between parties or privies. Rawlins’s case, 4 Co. 53. See also Pollexf. 67, 8; Palmer v. fjkms, 2 Bd. Raym. 1550. And many acts which estop a party shall not estop a stranger. Palmer v\ Stanage, 1 Bev. 43; T. Raym. 21, S. C. What is said on this subject, in Trevivan v. Bawrence, 1 Salk. 27b, is a mere dictum. Besides, there can be no estoppel,, where an interest passes; Co. Bitt. 45, a. 47, b. And here an interest did pass from Hopkins to the trustees Marshall and Pisher; namely, the equitable estate, and the right of possession.
    2. If Doswell can be held to have had notice, actual or constructive, of the deed of May 1808, under which Buchanan claimed, before he received his conveyance, and paid the purchase money to Hopkins, we admit Buchanan’s executors must prevail in equity. As to actual notice, we submit, upon the proofs in the cause, that Doswell was a complete purchaser without any actual notice of that deed. And the recording of the deed was not constructive notice to Doswell. Our statute of conveyances requiring the recording of deeds, is, in all essential particulars, like the english register acts concerning conveyances in York and Middlesex, 2 and 3 Ann. ch. 4, 5 Ann. ch. 18, 6 Ann. ch. *35, 7 Ann. ch. 20, 8 Geo. 2, ch. 6. See them, 4 Cruise’s Dig. title 32; Deed, ch. 28, (S 2-10, pp. 357-542 ; 2 Cay’s Abr. Register, p. 31. Now, under the english statutes, it has been uniformly held, that the registry of a conveyance is not constructive notice to a subsequent purchaser; for, that, although the statute avoids deeds not registered as against purchasers, it gives no greater efficacy- to deeds that are registered, than they had before. , Bedford v. Back-house, 2 Eq. ca. abr. 615, pi. 12; Be Neve v. Be Neve, 3 Atk. 646; Morecock v. Dickins, Amb. 678; Williams v. Sorrell, 4 Ves. 389; Bushell v. Bushell, 1 Scho. & Bef. 90.
    Beigh for the appellees.
    As to the 1st point, it is material to consider, that though Hopkins had only an equity in the land and the possession, at the time of his conveyance of May 1808, to secure the debt to Buchanan, yet he acquired the legal title from Nelson’s trustees by their deed of December 1810, duly recorded in June 1811,, before the date of his conveyance to Dos-well, and even before that of the articles by which he covenanted to sell the land to him. He could sell Doswell no better right than he himself had; his assignee must stand in his shoes; it is impossible to withhold the legal estate from Buchanan’s trustees, in favour of Doswell, upon any principle, which would not equally withhold it from them in favour of Hopkins himself. Now, as between Buchanan’s trustees and Hopkins, the legal estate acquired bj' the latter enured to them: he could never claim the legal estate against his own deed to them, though that deed contained no warranty. Whether the deed might have operated strictly and technically as an estoppel, is immaterial; he was concluded by it. And Doswell, who purchased from him afterwards, was equally concluded. Jackson v. Bull, 1 Johns. Ca. 90, 91; Jackson v. Mukray, 12 Johns. Eep. 201; Stevens v. Stevens, 13 Johns. Eep. 316; Trevivan v. Lawrence, 1 Salk. 276; 2nd Ees.; Vickv. Edwards, 3 P. Wms. 382; Smith v. Low, 1 Atk. 490, 10 Vin. ab. Estoppel, 2 pi. 10, p. 471. Iii Jackson v. Wright, *14 Johns. Eep. 193, the point was probably very little considered, since it was no wise necessary to the decision of the case. Littleton, '& 446, and Coke’s commentary, fo. 26S, a, cited and mainly relied on for the appellant, relates to the case of a disseisin, and a release to the dis-seisor by the son of the disseisee, without warranty, in the disseisee’s lifetime, and the right at the disseisee’s death afterwards descending to the releasor; a case, in which the court would be most astute to avoid the effect of the release. The present case is a conveyance for valuable consideration, by one having the possession, with an equitable estate, and (it seems) the right to call for the legal estate. Hopkins, in May 1808, was, in a common law point of view, the tenant at sufferance of Nelson’s trustees ; and by the conveyance in fee to secure the debt to Buchanan, he disseised them ; he assumed the legal estate, and it was his intent to convey it. What Coke says in Co. Litt. 47, b, concludes against the argument of the appellant’s counsel— 1 ‘If the lease be made by deed indented, then both parties are concluded; but if it be by deed poll, the lessee is not estopped +o say that the lessor had nothing at the time of the lease made. A. lessee for the life of B. makes a lease for years by deed indented, and after purchases the reversion in fee; B. dieth; A. shall avoid his own lease, for he may confess and avoid the lease, which took effect in point of interest, and determined by the death of B.” (Holt, C. J., explains the reason in Gilman v. Hoare, 1 Salk. 27S.) “But, if A. had nothing in the land, and made a lease for years by deed indented, and after purchased the land, the lessor is as well concluded as the lessee, to say that the lessor had nothing in the land; and here it worketh only upon the conclusion, and the lessor cannot confess and avoid as in the other case.” “Et videtur, that by purchase of the land, that is turned into a lease in interest, which before was purely an estoppel. Vide tamen P. 3; Car. C. B. ; Crook n. 2; Isham and Morris; Hale’s MSS. See Cro. Carr. 109.” Harg. note 11, 47, b. The whole doctrine is, merely and in the last degree, technical.
    *2. Doswell certainly had not completed the payment of the purchase money of the land to Hopkins before Lyons' joined in the deed of Nelson’s trustees to Hopkins; that is, not till 1814. Whether his purchase was completed by the payment of the whole purchase money to Hopkins, before he got notice of Buchanan’s mortgage, is a question of fact to be determined by the evidence. Was the recording of Buchanan’s mortgage, supposing it to be, in its effect, a mortgage only of the equitable estate which Hopkins then held, constructive notice to Doswell and all the world? The point is of general consequence, and of the utmost importance. 1 admit that the general course of decisions in England, upon the register acts, which are the law of only two counties, is, that the registry there is not constructive notice; though in Hiñe v. Dodd, 2 Atk. 275, lord Hardwicke said, that the register act “is notice to the parties, and notice to every body; and the meaning of this statute was, to prevent parol proofs of notice or no notice.” Those decisions seem to me so contrary to the spirit of the statutes, that I cannot but impute them to the inclination of the courts to keep the law of the two register counties, as nearly conformable with the general law of the land, as the statutes would allow. We have not the reasoning on which the leading case of Bedford v. Backhouse was decided. In Morecock v. Dickins, Amb. 678, lord Camden disapproved the doctrine, and yielded to it only out of regard to the authority of Bedford v. Backhouse, and the course of decision following that case, and from apprehension of the mis-chiefs that might result in practice, from changing the rule; good reasons to determine his judgment, but not for this court. Cruise disapproves the doctrine, as contrary to the intention of the statutes; Digest, 4 vol. title 32, Deed, ch. 28, \ 16, p. 544. Sugden, too, doubts the propriety of the decisions; nay, more, he thinks lord Camden erred in applying the doctrine of Bedford v. Backhouse to Morecock v. Dick-ins. Law of vend. p. 509. In that case, Wilson being indebted to Morecock, and having taken a *uew lease of lands, it was agreed by deed that the lease should stand as security for the debt due to Morecock; and this deed containing the agreement, was registered: afterwards, Wilson mortgaged the premises to Dickins, and delivered him the lease, Dickins having at the time no actual notice of More-cock’s security: Morecock (like Buchanan, in our case) acquired only an equity; and Dickins (like Doswell) had a conveyance of legal estate. Lord Camden reluctantly gave the preference to Dickins ; and Sugden says (with good reason) the case would not, perhaps, be deemed authority. And this reluctant and questionable decision is the only authority directly in point, that has been, or perhaps can be, cited for the appellant. If our legislature had taken the policy of its enactments on the subject, from the english register acts, or copied the language of them, it might be reasonable that our courts should look to the settled and known judicial exposition of the english statutes, as a guide in the construction of our own: but as we did not borrow the policy from England, so we never adopted the language of the english statutes. The first act of the colonial legislature on the subject, was passed in the 14th year of Charles II. and the second, in the year 1705, which was the 4th of Anne. 2 Hen. stat. at large, 168, 3 Id. 318. The next act, that of 1734, ch. 6, 4 Id. 397, which explained the act of 1705, and placed the registry of deeds on the ' principle on which it now stands, was certainly not all copied after the model of the english register acts. The same remark applies to the act of 1748, ch. 1, 5 Id. 408, and to all our subsequent legislation. Bet the language of those early statutes, let the language of the revised statute of 1792 (which was the law in force when the mortgage to Buchanan, and the conveyance to Doswell, were executed) be compared with the english register acts; and let both be compared with the register acts of New York: it will be seen, that the language of all our statutes, is very different, certainly as different as that of the New *York statutes,, from the words of the english statutes. Now, chancellor Kent, in Parkist v. Alexander, 1 Johns. Ch. Rep. 389, after quoting the language of the' New York statute, said— 1 ‘If it does not mean, that a mortgage duly registered shall be preferred to a subsequent bona fide deed *without notice, it is senseless and idle, and worse than idle; it is delusive, and a snare to the unwary. No decision of the english courts upon the english register acts, in which there is a variation in the language of the provision, could induce me to change my opinion on the construction of our statute. I had occasion, lately, in the case of Frost v. Beekman, (Id. 288,) to express the same opinion; and with me the point is absolutely at rest.” And in both those cases, he held that the registry of a mortgage was constructive notice to a-11 the world. The court of errors of New York, indeed, had already decided the same point in Johnson v. Stagg, 2 Johns. Rep. 5l0, 524, where Kent said, 1 ‘The provision in the act that no mortgage, unless duly registered, shall defeat the title of a bona fide purchaser, shews the intent to be, that subsequent purchasers must take notice, at their peril, of all registered mortgages. This has been the received construction, and probably, the universal understanding on the subject.” It ‘‘has been the received construction, and probably, the universal understanding” of the law of Virginia, likewise. It certainly was the understanding of the legislature that enacted the revised statute of conveyances of 1819, as is evinced beyond doubt by the new provision then introduced, that “every title bond, or other written contract, in relation to land may be proved, certified or acknowledged, and recorded, in the same manner as deeds for conveyance of land; and such proof, acknowledgment or certificate, and the delivery of such bond or contract to the clerk of the court to be recorded, shall be taken and held as notice to subsequent purchasers, of the existence of such bond or contract. 1 Rev. Code, ch. 99, <! 13, p. 365. When the legislature made the registry of an executory contract to convey land, notice to subsequent purchasers, it surely entertained no doubt, and supposed there could be no doubt, that an actual conveyance or mortgage of the equitable estate of land, duly recorded, was notice to subsequent purchasers. Is no man to be safe in taking the mortgage of an equitable estate, while the naked legal title *is outstanding? What more can a prior purchaser or mortgagee do, to warn subsequent purchasers, than to record his deed? How can he give actual notice to every citizen of the state? How can he know who is in treaty with his vendor or mortgagor, for the purchase of the subject? On the other hand, it is the business of every purchaser to search the records. In the present case, Doswell had only to look into the order books and deed books of the courts in which a conveyance of this land might be recorded, under the name of Hopkins, and the incumbrance would havé appeared. He was bound to search for in-cumbrances, from the time Hopkins’s possession commenced; for he was bound to know that Hopkins’s equitable estate was mortgageable.
    Harris’s heirs have never yet executed any conveyance in pursuance of the decree of the court of chancery of October 1808, for the part of Bullfield which general Nelson-bought of Harris. What part it was, or how much, does not appear. As to it, Doswell can claim only an equitable title; and if it was included in Buchanan’s mortgage, the prior incumbrancer must have the preference as to so much.
    In answer-to the last remark as to the part of the subject purchased by general Nelson of Harris, it was -said, the act of limitations perfected the title as against his heirs.
    
      
       Conveyances— After-Acquired Title — Estoppel.—The principal case holds that where one having an equitable estate in land conveys such land by deed‘of bargain and sale without warranty to secure a debt, and afterwards acquires the legal title in the land; such legal estate subsequently acquired does not enure to the benefit of the grantees. Judge Carr, in his opinion, says, a deed of bargain and sale, like a release, passes no title which the bargainor had not at the time, ye't if there be a warranty annexed, it will bar.
      . InRainesv. Walker,77 Va. 95, it is said, if a person conveys land with general warranty, and does not own it at the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee. Citing opinion of Staples, J., in Burt-ners v. Keran, 24 Gratt. 47 (which case and note cite the principal case), and opinion of Carr, J.. in Boswell v. Buchanan, 3 Leigh 376. To the same effect, the principal case is cited in Baugh v. Walker, 77 Va. 102: Cox v. McMullin, 14 Gratt. 90; Gregory v. Peoples, 80 Va. 357.
      And in Reynolds v. Cook, 83 Va. 821, 3 S. E. Rep. 710. it is said, the general rule undoubtedly is. that where land is conveyed without warranty a grantor is not estopped from setting up an after-acquired title. On the other hand, a covenant of warranty works an estoppel and the reason usually given is that the estoppel prevents circuity of action. Los-well v. Buchanan, % Leigh Gregory v. Peoples, 80 Va. 855. But chis is not the only ground upon which the estoppel arises. The rule is well established that where the deed recites or affirms, expressly or impliedly that the grantor is seized of a particular estate which the deed purports to convey, and upon the faith of which the bargain was made, he will be thereafter estopped to deny that such an estate was passed to his vendee, although the deed contains no covenant of warranty at all. This rule accords with common honesty and fair dealing. Citing for this last proposition Van Rensselaer v. Kearney, 11 How. 297; French v. Spencer, 21 How. 228. See also, Nye v. Lovitt, 92 Va. 717. 24 S. E. Rep. 345, citing the principal case.
    
    
      
      
         Deeds — Recordation—Notice.—In the principal case it is held that the recordation of a deed mortgaging an equitable estate is not constructive notice to a subsequent purchaser of the legal title. And in Harvey v. Fox, 5 Leigh 452, it is said: “Is not the recording of such deeds according to all the requisites of the law, to be deemed constructive notice, so as to be binding on subsequent creditors, in the same manner, and to the same extent, as if they had actual notice of the execution of the deeds? and if so, are such deeds to be held fraudulent as to them, although they may be clearly so as to prior creditors? 1 have referred to the opinions of Judge Green, in Land v, Jeffries, 5 Rand. 253, and of Judges Garb and Oabedu, in Doswell v. Buchanan, 3 Leigh 365, and the law does not seem to be conclusively settled on the subject. I forbear, however, to say anything on it.”
      But see § 2465, Code of 1887. The principal case is cited in Donnell v. King, 7 Leigh 399; Pillow v. Southwest, etc.. Imp. Co., 92 Va. 152, 23 S. E. Rep. 32.
      Equal Equities - Priority. — rt may be laid down as a general rule, that between mere equities, equal in all other respects, the elder will prevail. If, however, the junior claimant shall have an advantage at law, or superior equity, such party shall prevail. Cox v. Romine, 9 Gratt. 29, citing Moore v. Hol-combe, 3 Leigh 597, and opinion of Judge Cabedd in Do a well o< Buchanan, 3 Leigh 365.
    
    
      
       Bona Fide Purchaser — What Constitutes. — The proposition laid down in the principal case that to sustain the plea of purchaser without notice, a party must be a complete purchaser before the notice; that is, must have obtained a conveyance and paid the whole purchase money, is criticised in Preston v. Nash. 75 Va. 951, which case holds that a couiplete pa rebase? is one who has paid the purchase money, and who, though he has not received a conveyance of the legal title, is entitled to call for it. Christian, J., in his opinion, saying in effect that the other judges, GREEN and Cabedl did not adopt the statement made by Carb, J , in Doswell v. Buchanan, that a complete purchaser must have paid the purchase money and obtained a conveyance of the title. See also, citing the principal case, the following cases which approve the rule laid down in Preston v. Nash, supra: Preston v. Nash. 76 Va. fc, 7, 8; Lamar v. Hale, 79 Va. 156; foot-note to Briscoe v. Ashby, 24 Gratt. 451. But in McCormack v. James, 36 Fed. Rep. 18, the rule in the principal case seems to be approved. See foot-note to Mutual Assurance Society v. Stone, 3 Leigh 218.
      Statutes — Construction — Effect Where Foreign Statute Is Adopted. — When the construction of a foreign statute has been settled by a number of decisions and the legislature enacts that statute in the same words, it must be presumed that the construction based upon statute was adopted along with it. Norfolk & Western R. Co. v. Old Dominion Bag. Co.. 99 Va. 115, 37 S. E. Rep. 784, citing Doswell v. Buchanan, 3 Leigh 394.
    
    
      
       The english statute 2 Ann. ch. 4, § 1, provides “that a memorial of all deeds and conveyances, which shall he made of or concerning, and whereby any honours, manors, lands, tenements or heredit-aments, in-the west riding of the county of York, may be in any manner affected, in law or equity, may, at the election of the party or parties concerned, be registered — and that every such deed or conveyance shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for valuable consideration, unless such memorial thereof shall be registered as by this act is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall'claim.” The subsequent statutes extend the same provisions to the east and north ridings of Yorkshire, the town of Kingston-upon-Hull, and to Middlesex exclusive of the city of London. 4 Cruise’s Dig. tit. 32, Deed, ch. 28.
      'The words of one of the New York register acts, as quoted by Chancellor Kent, in 2 Johns. Ch. Rep. 389, are, “No mortgage, nor any deed, conveyance or writing in the nature of a mortgage, shall defeat or prejudice the title or interest of any bona fide purchaser &c. unless the same shall have been duly registered.”
      The Virginia statute of conveyances of 1792, ch. 90, Rev. Code of 1794, Pleasants’ edi. p. 1B6, provides, § 1, “That no estate of inheritance or freehold, or for a term of more than five years, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing sealed and delivered; nor shall any such conveyance be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless the same be acknowledged by the party or parties who shall have sealed and delivered it. or be proved by three witnesses, to be his, her or their act, before the general court, or court of that district, county, city or corporation, in which the land conveyed or some part thereof lieth, or in the manner herein after directed, within eight months after the time of sealing and delivering, and be lo.dged with the clerk of such court to be there recorded.” — “ § 4. All bargains, sales, and other conveyances whatsoever of any lands, tenements or hereditaments, whether they be made for passing any estate of freehold or inheritance, or for term of years, and all deeds of settlement upon marriage, wherein either lands, slaves, money or other personal thing shall be settled or covenanted to be left or paid at the death of the party or otherwise, and all deeds of trust and mortgages whatsoever, shall be void as to all creditors and subsequent purchasers, unless they shall be acknowledged or proved and recorded according to the directions of this act; but the same as between the parties and their heirs, shall nevertheless be valid and binding.’’ — Note in Original Edition.
    
   CARR, J.

The counsel for the appellees insisted, in the argument, that though Hopkins had no title when he conveyed to Buchanan’s trustees, yet, as he afterwards obtained it, he and his alienee were es-topped from contradicting the deed. With respect to this, T shall only remark, that this technicality is met and neutralized by another, namely, that the deed contains no clause of warranty, and therefore works no estoppel. A deed of bargain and sale, like a release, passes no title which the bargainor had not at the time, yet if there be a warranty annexed, it will bar. “For albeit (as Coke says, Co. Hitt. 265, b.) the release cannot bar the right &c. yet the warranty may rebut, and *bar him and his heirs of a future right that was not in him at the time; and the reason wherefore a warranty, which is a covenant real, should bar a future right is, for avoiding a circuity of action.”

Bet us next inquire, whether Doswell is a purchaser with notice of Buchanan’s equitable lien, and the legal estate in his hands subject to the satisfaction of the debt due to Buchanan’s executors? Is the recording of a deed of trust, which gives a lien on the equitable title, such notice to a subsequent purchaser of the legal title, as will bind him? I think not. The enrolment and registry acts "of England, and our recording acts, are expressly declared to be made for the benefit of subsequent purchasers; to protect them from secret conveyances. These acts, then, ought not to be turned to the injury of those, for whose benefit they were made, unless it be in obedience to some express provision contained in them. But there is none such. They declare, that all deeds &c. shall be void as to subsequent purchasers, unless duljy recorded; but they no where declare, that such recording shall charge the subsequent purchaser with notice of the deed. If not recorded, the deed is void as to him; if recorded, it is only so far valid, that it passes to the bargainee the title it purports to convey, provided the bargainor had that title; if he had it not, the deed cannot pass it, though recorded; nor will the putting it on record affect the conscience of a subsequent purchaser of the legal title, nor, of course, charge that title with the equity which the deed raised between the bargainor and bargainee. The laws had no such intention, nor will their words bear such construction. That this is settled doctrine in England, there are many cases to shew. Ld. Forbes v. Deniston, 4 Bro. P. C. 189; Cheval v. Nichols, 2 Eq. ca. abr. 63, 4, pl. 7; 1 Stra. 664, S. C. Beatniff v. Smith, 1 Eq. ca. abr. 357, pl. 11; Wrightson v. Hudson, 2 Id. 609, pl. 7; Bedford v. Backhouse, Id. 615, pl. 12, cited Amb. 680; Hine v. Dodd, 2 Atk. 275; Le Neve v. Le Neve, 3 Atk. 646; Sheldon v. Cox, Amb. 624; Morecock v. Dickins, Id. 680; Bushell *v. Bushell, 1 Scho. & Bef. 90, in which last case, lord Redesdale reviews all the authorities with his usual ability. In Wrightson v. Hudson, sir J. Jekyll had decided, that the register act did not create constructive notice by the registry; that it avoided only prior charges not registered; and that though Wrightson might have searched the registry, he was not bound to do so. Upon this lord Redes-dale remarks, “Sir J. Jekyll’s opinion that the act did not create constructive notice by the registry, appears to be sound. I know of nothing that compels a man to search the registry, more than to search the records of a court of any description.” And he concludes his review by saying, “The effect of all these decisions is, that the registry cannot be considered as notice, with all the consequences that would attach upon it as notice; and if it were so considered, it would lead to very mischievous consequences.” If we say, that the recording of a deed is constructive notice, it is on the sole ground that it is the duty of every purchaser to search the records, and that if he did so, he must see the deed. Now, suppose a deed put upon the record, without the proof and authentication required by law? We know that this court has, in several cases, declared such deed to be, to all intents and purposes an unrecorded deed; Turner v. Stith, 1 Wash. 319; Currie v. Donald, 2 Wash. 59, 64. Yet it is upon the record, and il the purchaser searched, he would see it, just as certainly as if it had been recorded upon the fullest proof; and to be consistent, we must say, that he purchases with notice of such deed, and therefore is as much bound by it as the parties, between whom we know it is good though not recorded, because this deed, in violation of law, was put upon record. Thus, we dispense at once with a positive provision of the law, pronouncing such deed void as to the subsequent purchaser. This idea is clearly expressed by lord Redesdale, in Latouche v. Dunsany, 1 Scho. & Bef. 157. Speaking of the registry act, he says, “If it be notice, it must be notice, whether the deed be duly registered or not; it may be unduly registered, 'x'and if it be so, the act does not give it a preference ; and thus this construction would avoid all the provisions in the act for complying with its requisites.” Again in Underwood v. Ld. Coutown, 2 Scho. & Lef. 64, he says, “It seems to me, that nothing would be more mischievous than to hold, that putting any thing on the registry, is notice, within the meaning of the word notice as applied to courts of equity in such cases.” In th,e next page, he says, “There is an important difference between actual notice and the operation of the register act. Actual notice might bind the conscience of the parties; the operation of the act may bind their title, but not their conscience.” From these cases, it appears that, for more than a century past, it has been settled law in England, that the mere putting a deed upon the registry, is not notice. Nor has the doubt (it is a mere doubt) thrown out by lord Camden, in Morecock v. Dickins, in 1768, nor the distinction attempted by Sugden, p. 509, tended at all to shake this doctrine. It is admitted, that where the construction of an english statute has been settled by a series of decisions, and our legislature enacts that statute in totidem verbis, the construction must be considered as adopted along with the statute. To me it seems that this principle applies strongly to the case before us. Our statute is not a literal copy, but surely it must be admitted to have been substantially taken from the english statute 2 Ann. ch. 4, commonly called the register act; which after describing the kind of conveyances to which it extends, and saying that memorials of them shall be registered in the manner directed, adds, “that every such deed or conveyance &c. shall be adjudged fraudulent and void, against any subsequent purchaser or mortgagee for a valuable consideration, unless such memorial thereof be registered, as by this act is directed, before the registering of the subsequent deed or conveyance. ” Our statute of conveyances, after directing the mode of recording &c. provided, that “all deeds of bargain and sale and other conveyances whatsoever of lands &c. and all deeds of trust and mortgages, which shall hereafter *be made and executed, shall be void as to all creditors and subsequent purchasers, unless they shall be acknowledged or proved, and recorded, according to the directions of this act.” It is impossible to look at these • acts, without seeing their exact similarity, as to recording and registering deeds. Our legislature (we must, in decency, suppose) knew that under the english law, the registering a deed had been settled not to create notice: if it had meant, that under our law it should, how easy to have added, that the recording of every such deed, according to the directions of this act, shall be full notice to all subsequent purchasers. It was insisted, however, that the legislature of 1819 believed, that the recording a deed did give notice to all the world; and this, was said to be evinced by the 13th section of the revised statute of conveyances, which -was added to our law at the late revisal. It directs title bonds and contracts in relation to land, to be recorded; and adds, that such recording shall be taken and held as notice to all subsequent purchasers, of the existence of such bond or contract. If this section proves any thing, it seems to me to prove, that the legislature did not suppose that bare recording (at least of bonds and contracts) would operate a notice; else why add, that such recording should be taken and held as notice? It must have thought these words necessary to give to recording that effect; and if necessary as to bonds and contracts, equally so, assuredly, as to deeds, for there can be nothing in the nature of the instrument, to make a difference. Why it chose to leave the law with respect to recording deeds &c. just as they found it in the former statutes, and to add, in the new section, that recording should be notice as to bonds and contracts, it is not for me to say. We must construe each section according to its actual words. Prom this review of the statutes, and the cases settling the construction of them, it is clear to me, that there is nothing in them, that imposes on the purchaser the duty of searching the records. Let us look at analogous cases. A private act of parliament, is not nptice to a purchaser; Sudg. *law vend. 535, 2 Ves. sr. 480, 3 Bos. & Pul. S78. Decrees of courts of equity are not notice to a purchaser; Sudg. 538. Judgments are not notice, nor is the docketing of judgments of itself notice, to a purchaser; Id. 539.

But, even if it were admitted to have been the duty of Doswell to search the records, how far ought that search to be carried? Assuredly, not beyond the period at which the legal title vested in the vendor. Suppose him to take the advice of counsel; he would call for the chain of title; he would examine the decree of September 1808, directing the title to be made to Hopkins, and the deed made in virtue of this decree of the 2nd December 1810; and seeing that the title of Nelson was by this deed conveyed to Hopkins, he would look from this date down to the time of consultation, to see whether there were any incumbrances. This is all that could, with any shew of reason, be required of him: but this would never lead him to the deed of trust of May 1808, made by Hopkins to Buchanan, and purporting to convey the legal estate, when Hopkins had no such estate in him; and to impute to him a notice of this, because it was put on record, seems to me wholly inconsistent with equitable principles generally, or the particular ground of favour, on which a fair purchaser stands in that forum.

But though we should decide, that the recording the deed of trust, was no notice, it still remains to inquire, whether Doswell has shewn himself a complete purchaser for value before notice. To constitute him such, I consider that the deed must be executed, and the money all paid, before notice. Sugden, p. 530, lays it down broadly, that “notice before actual payment of all the money, although it be secured, and the conveyance actually executed, or before the execution of the conveyance, notwithstanding that the money be paid, is equivalent to notice before the contract.” And these positions seem fully supported by the cases (which I have carefully examined). Tourville v. Naish, 3 P. Wms. 307; Story v. Ld. Windsor, 2 Atk. 630; Moore v. Mayhow, 2 Freem. 175; Jones v. Stanley, 3 Eq. ca. abr. 685, *pl. 9; Wigg v. Wigg, 1 Atk. 384. We know, that the plea of purchaser for value without notice, if sustained, is a perfect de-fence; and that against such purchaser, equity will not take the slightest step, not even to .perpetuate evidence against him, or to take from him any advantage the law gives him; Jerrard v. Saunders, 2 Ves. jr. 454. But it is equally clear, that this plea is a complete defence, or no defence at all. ‘ ‘It must aver a conveyance, and not articles merely — it must aver the consideration, and actual payment of it; a consideration secured to be paid, is not sufficient.” Mitf. plead. 215, 16. It must also deny notice of the plaintiff’s title to a claim, previous to the execution of the deeds, and pa3’ment of the consideration. Hardingham v. Nicholls, 3 Atk. 304. A plea averring that the ,mone3' was paid or bona fide secured to be paid, was overruled. In 2 New-land’s equity, 14S, and also in Beanie’s pleas in equity, 347, we have forms of the plea of purchaser without notice, at full length; and they set out the purchase, the sum to be given, the estate purchased &c. and positively aver, that the deed was executed, and the whole sum paid, before notice of the plaintiff’s claim. If they fail todo this, the plea is overruled as insufficient; for in pleading, there is the same strictness in equity as at law. If the plea is found to be good in law, issue is taken on its truth, and the defendant must prove the facts, which he has been held to allege; which if he does, the plea is a complete bar; but if he does not, he loses all benefit of the plea. Under this view of the case, I cannot see how a defendant can, in the character of purchaser without notice, avail himself of payment of a part of the purchase money, though paid before notice, and have a decree of the court, that such payment should constitute a lien on the land: it is not at all within the issue: it does not make him a purchaser without notice: and without this, he cannot inteifere with the prior lien. Suppose, instead of part, he had paid the whole of the purchase money, but got notice before he had a deed; he would, surely, have as much right to have the whole, as a *part, made a lien on the land; and this being the full value of the land, would wholly disappoint the prior incum-brancer. I am clearly of opinion, therefore, that Doswell must shew, that he had paid the whole consideration before notice, in order to protect his purchase. This I do not think has been so clearly proved as to authorize a dismission of the bill. And I am finally of opinion, that the decree should be reversed, and the cause sent back to be referred to a commissioner or a jury, to inquire, whether Doswell had paid all the purchase money, before notice of Buchanan’s mortgage; the final decree to be governed by the principles laid down.

GREEN, J.

If the defence made by Doswell, that he was a bona fide purchaser from Hopkins, without notice of Buchanan’s lien, and that he had fully paid the purchase money before he received actual notice of that lien, had been supported by clear proof, I should have thought the decree should be reversed, and the bill dismissed. In that case, it is not necessary to prove that the purchaser has actually procured a perfect legal title, in order to protect himself against any relief against him in a court of equity, whose maxim is, that it will act in no way against a bona fide purchaser without notice, to expose even his want or defect of title, and, in short, will not permit any inquiry to be there prosecuted in respect to the particulars or lawfulness of his title.

I think it clear, that a recorded deed is no notice to a subsequent purchaser, which can affect his conscience in a court of equity, both upon the authorities cited, and the plain import of our statute. Eor it adds nothing to the strength of any deed, that it is recorded; but it only takes away the force which a deed would have had, but for the provision of the statute requiring deeds to be recorded, if they be not recorded as required.

If Doswell’s defence had been fully supported by proof, it would have protected him completely against the action *ox a court of equity, until the trustees for Buchanan had actually recovered the land conveyed by Hopkins to them, in an action at law; in which case, the impediment to the sale by the decree of the court of equity, would be removed. But the evidence leaves it in some degree of doubt, whether Doswell had paid the full amount of his purchase money, before he received notice of Buchanan’s claim. My impression is that he had ; but the proofs are not sufficient to justify a judicial decision that he had. And this fact, I think,' should be inquired into by a reference to a commissioner before a final decree, and if found to be as alleged by Doswell, the bill dismissed; if not,-relief given to the plaintiffs, according to the result of that inquiry.

CABELE, J.

I shall not inquire, whether the deed from Hopkins to Doswell, passed the legal estate of the whole of Bullfield to him; I shall proceed upon the admission that it did so. And, then, this case presents the question, never before directly submitted to this court, Whether, as the law was before the late revisal, a person purchasing without notice, and obtaining the legal title, shall be prejudiced by a prior deed of trust or mortgage of the equitable estate, which was duly recorded previously to his purchase? It is admitted, on all hands, that actual notice of a prior deed of trust or mortgage, will bind a subsequent purchaser; and there is, certainly, no difference between actual and constructive notice, in its consequences; Sudg. law vend. 532. The question, therefore, is narrowed down to this: Is the due recording of an equitable deed of trust or mortgage, of itself, constructive notice of that deed, to a subsequent purchaser? After much reflection, I have come to the opinion that it is. Constructive notice, or (as it is sometimes called) notice by construction of law, is defined to be, no more than evidence of notice, the presumptions of which are so violent, that the court will not even allow of its being controverted; per Eyre C. B. in Plumb v. Fluitt, 2 Anstr. 438; Sugd. 533. Thus, notice to an agent, is notice to the ^principal. But there is one kind of constructive notice, which has a very extensive operation: it is, “where the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have;” and the reason of it is forcibly expressed, “that the titles of other men ought not to be shaken, by creating a title vested in a third person through his own folly;” per lord Erskine, in Hiern v. Mill, 13 Ves. 120, 121. This principle has been repeatedly recognized, and acted upon. I refer to Ferrars v. Cherry, 2 Vern. 384; Taylor v. Stibbert, 2 Ves. jr. 437; Hill v. Simpson, 7 Ves. 152. I think this principle applies to our statute requiring deeds of trust and mortgages to be recorded, and should guide us in the construction of it. The great object of the statute, is the benefit of creditors and subsequent purchasers, by enabling them to know whom to trust, and from whom to purchase. Every man is presumed to know the law; particularly a law made for his special benefit. “Every man of ordinary prudence,” about to purchase from another, searches the record, to see whether the property has been previously conveyed or incumbered. It is gross negligence not to do so. He who fails to do it, wilfully shuts his eyes against the truth, and ought not to be permitted to avail himself of his ignorance. So far from having equal equity, with a former bona fide incum-brancer, whose deed is duly recorded, he has no equity at all. In the language of lord Erskine, ‘ :the titles of other men ought not to be shaken by creating a title vested in him, through his own folly.” I shall only add, that a contrary decision would tend greatly to encourage perjury; fora man may actually have searched the register, and then deny it, without danger of its being proved upon him.

I am well aware, that this principle has not been applied to the register acts in England, and that the registry of a deed there is not held to be constructive notice. I admit also, that I do not perceive any substantial difference between the english register acts and our statute requiring *deeds of trust and mortgages to be recorded; though it is manifest, their phraseology is widely different. JSTeither the english statute nor our’s says any thing, in express terms, as to the effect of registering or recording deeds, while they do declare, in express terms, what shall be the effect, of a failure or omission to register or to record. But the question necessarily arises, what is, on general principles, the effect of putting a deed on the register in England, or on the record here? It has been decided in England, as I have just said, that it does not operate as constructive notice. Does it follow, that we must give the same construction to our statute? I humbly think not. We have, it i's true, adopted the common law of England, as the law of this country; and there is nothing which I should consider more authoritative evidence of what that law is, than the decisions of the english judges, upright and eminently learned as they unquestionably are. I should also pay the highest respect to their construction of en-glish statutes, which were in force prior to the 4th year of James I. and which were adopted by the convention of 1776, along with the common law. I will go farther, and say, that, when english- statutes of a subsequent-date, having been expounded by the english judges, in .a long course of uniform opinion and adjudication, have afterwards been adopted into our code, in the very words in which they were originally enacted, I should think it wrong in our courts, to give them a different interpretation ; because it ought to be inferred, that the legislature, in adopting the very words of an english statute, intended to adopt the interpretation that had been given to them in the country from which it was copied. But that is not the case in the present instance. These statutes are of modern date; they have not been copied by our legislature; and the correctness of the interpretation given, in England, to the english statutes, has been more than doubted by some of their profoundest judges, and ablest writers. We find that lord Camden, in 'Morecock v. Dickins, adhered to the former interpretation, in opposition to His own opinion, merely because *it had been so decided, and because it would be mischievous to disturb it, since it had given occasion to a thousand neglects to search the register. It is clear that, in his opinion, the registry of a deed, ought, on general principles of equity, to be constructive notice, notwithstanding the statutes had not, in terms, said so. The reasons assigned bj’ him, were abundantly sufficient to justify, and even to require him, to disregard his own opinions, and to adhere to the interpretation given by preceding decisions. But no such reasons exist here: no former decisions on our statute, have produced neglect in purchasers: no former decisions trammel us in the exercise of our judgments. We may, without injury to any body, pursue general principles to whatever just result they majr conduct us. For, the construction of our statute is now directly submitted, for the first time. My opinion upon it, has been stated. I cannot say what has been the general understanding, in Virginia, upon this subject. But I think it manifest, that the legislature at the late revisal, entertained the same opinion that I have expressed, as to the effect of recording deeds of trust and mortgages, under the former law upon that subject: for it adopted the former law as to the recording of such deeds, without saying any thing as to what should be the effect of their being recorded: but, when it introduced the new provision, declaring “that title bonds or other written contracts in relation to land may be proved, certified or acknowledged, and recorded, in the same manner as deeds for the conveyance of land;” it went on to add, that “such proof, acknowledgment or certificate, and the delivery of such bond or contract to the clerk of the proper court to be recorded, shall be taken and held as notice to all subsequent purchasers, of the existence of such bond or contract.” Now, it is obvious, that this section was not intended by the legislature to embrace the case of mortgages and deeds of trustj for they had been acted on in the former parts of the act: it related to contracts, not to conveyances, such as mortgages and deeds of trust. This section shews, and indeed expressly '^declares, that the recording of a mere contract concerning land, shall be notice of its existence. Yet, when we advert to the sections concerning the recording of mortgages and deeds of trust, we find no provision as to what shall but the effect of their being . recorded. Whence this omission? Surely, not because their being recorded ought not to be notice, equally with the recording a mere contract, but solely because the legislature entertained no doubt, that the law was always so, in relation to deeds of trust and mortgages. If it had entertained doubt about it, it would, when speaking of recording mortgages and deeds of trust, have taken care to remove that doubt by declaring in express terms, (as it did in relation to title bonds and contracts), that their being admitted to record, should be notice of their existence, to all subsequent purchasers.

I am of opinion to affirm the decree.

If, however, I had concurred with the other judges, as to the effect of recording the deed .of trust, I should then have been of opinion, that Doswell ought to be protected, not only in case of his having paid the whole of the purchase money, before he received actual notice of the existence of the deed, but, in case he had made only partial payments before such notice, that he should be protected to the extent of such payment.

I have only to add, that I regret that a case involving a principle of such vast importance, should have come before a bare court, and that the division of the court should leave the community in doubt, as to what the law is on this interesting subject.

Decree reversed.  