
    Horsley & als. v. Garth & Colquit. Same v. Græme & Mosby.
    January Term, 1846,
    Richmond.
    
      [44 Am. Dec. 393.]
    (Absent Cabell, P., and Stanard, J.)
    i. Land Lying in Two Counties — Where Deed Convey, ing Recorded. — where a deed conveys several tracts of land lying separately, in different counties, the recordation thereof in only one of the counties, is not effectual in regard to the tract or tracts lying in the other counties, within the true intent and meaning of th,e statute regulating conveyances. 1 Rev. Code, ch. 99.
    *2. Same — Separated by Navigable Stream — How Regarded. — Where a navigable stream is the dividing line between two counties,'and so separates lands conveyed by deed, as to throw part thereof into the county on one side of said stream, and part thereof into the county on the opposite side of the same, the parts so separated must be regarded as distinct tracts lying in different counties, within the true intent and meaning of the statute of conveyances. See supra.
    
    3. Deeds — Variance between Deed and Certificate — Ef« fect. — A variance between the date as it appears in the deed certified by the justices, and in their certificate, does not avoid the registry of the deed, if the identity of the deed certified and the deed recorded is satisfactorily ascertained by other parts of the certificate, and the annexation thereof to the deed.
    4. Same — Endorsement by Clerk of Day When Left with Him — Effect.—The endorsement of the clerk on the deed of the day when it was left with him to be recorded, and his return to the court of deeds left with him to be recorded, is not conclusive as to the day when the deed was so left; but the -true day may be shewn by parol testimony.
    5. Same — Recordation.—The carrying a deed to the clerk’s office to be recorded is not enough to make it good, as a recorded deed, from that day. It must be left with the clerk to be recorded.
    Garth & Colquit and Grseme & Mosby recovered judgments against John Horsley, in the Circuit Superior Court for Amherst county, at the term which commenced on' the 1st day of April 1836, and issued executions of fi. fa. thereon, which were returned “No effects.” They then instituted these suits in the Circuit Superior Court for the county of Nelson, for the purpose of setting aside three deeds executed by Horsley. By one of these deeds, he conveyed lands lying in the counties of Nelson, Amherst, Buckingham and Greenbrier, and lots in the City of Richmond, to Frederick M. Cabell and Alexander Mundy, in trust to indemnify certain sureties and creditors therein mentioned. By another, he conveyed a tract of land lying in Kentucky and a number of slaves to a trustee for the separate use of Mrs. Horsley, in consideration of her relinquishment of her right of dower in his other real estate; and by the other he conveyed other property, and debts due him, to indemnify his brother Robert Horsley as his surety in his bond as guardian of his son William S. *Hors-ley; a portion of whose real estate had been sold under a decree of the County Court of Henrico, and the proceeds thereof had come into his hands as guardian of the said William.
    The .bills charged that the deeds were fraudulent, and intended to hinder, delay and defraud creditors; and they also char'gedthatthe first deed was not duly recorded in time, so as to defeat the lien of the plaintiffs’ judgments. The first charge was not sustained by the proofs, and seems to have been abandoned; and the only question of controversy in this Court was, whether the first deed was recorded in time to defeat the plaintiffs’ lien. This deed conveyed a body of lands lying in the counties of Nelson, Amherst and Buckingham, called the Elk Mills tract, which it was insisted by those claiming under the deed, constituted one tract. The whole amounted to between eleven and twelve hundred acres, which had been purchased by Horsley from different persons at different times, and lay on both sides of the James river, which is there navigable for batteaux, and is the dividing line between Buckingham on the south, and Amherst and Nelson on the north of the stream. Horsley held and cultivated the whole of the lands together, advertised them for sale as one tract, and had refused to sell them separately.
    The preparation of this deed was commenced on the 30th, and finished on the 31st of March 1836; and three counterparts of it were made. Of these,, one was to be sent to each of the counties of Nelson, Amherst and Buckingham. It was intended to be dated on the 30th of March ; and the counterpart sent to Nelson is so dated; but those which were sent to Amherst and Buckingham were, by a mistake of the copyist, dated the 13th. This mistake not being observed, the justices who took the acknowledgment of Horsley, and the privy examination of his wife, in their certificate, refer *to it as a deed bearing date the 30th of March, and thereto annexed. The counterpart which was sent to Buckingham, having been executed about 9 o’clock, P. M. on the 31st of March, a messenger was despatched with it to the clerk’s office of the County Court of that county, where- he arrived a few minutes before 12 o’clock at night; but found no person there to whom it could be delivered. Before sunrise on the morning of the 1st of April, he went to the house of the clerk of the County Court, and informed him that he had arrived with the deed at the office before 12 o’clock the night before; and this being confirmed by another person who was with him, the clerk received the deed, and endorsed it as left with the clerk to be recorded on the 31st of March; and in his return to the County Court of deeds recorded in his office, this deed was returned as left with the clerk to be recorded on that day. In thus endorsing and returning the deed, the clerk acted under the opinion that as the deed was brought to the office on the 31st of March, and was only not left there because there was no person to receive it, it was proper to consider the deed as left to be recorded on that day.
    The causes having been united, came on to be heard on the 5th day of May 1838, when the Court made an interlocutory decree, by which it was held, that none of the deeds were made to hinder, delay, or defraud creditors; but leaving open the question, whether on account of the mis-recital by the justices in their certificate, of the date of the deed, the deed was as yet legally recorded in the counties of Amherst and Buckingham, it was held that it was not recorded in Buckingham until the 1st of April; and was therefore overreached by the judgments of the plaintiffs, as to the lands in Buckingham, and also the lands in the county of Greenbrier, and the lots in the City of Richmond, in which it had not been recorded. From this decree, the parties claiming under *this deed, applied for, and obtained an appeal to this Court.
    Taylor, for the appellants.
    This case brings up for consideration the construction of our act directing deeds to be recorded; and the first question to be considered is, whether a deed which conveys lands in several counties, is valid as a recorded deed as to all the lands, if recorded in one of the counties in which a part of the land lies ; or whether it must be recorded in each of the counties in which any part of the land lies, in order to be good as a recorded deed, as to the land conveyed in each county. We maintain the first branch of the proposition.
    The act of 1819, 1 Rev. Code, ch. 99, § 1, p. 361, says, that the deed shall be recorded in the county or corporation “in which the land conveyed, or some part thereof lieth.” The fourth section of the act avoids all conveyances of lands, in favour of creditors, and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved, and lodged with the clerk to be recorded, according to the directions of this act.
    There are but two constructions which can be given to this act. The first confines the words “some part thereof,” to a single tract of land through which the boundaries of a county run. The second extends them to cases where several tracts, lying in different counties, are conveyed by the same deed, and it is recorded in the county in which any one of the tracts lies. The true construction of the statute can only be ascertained from its language, as the record of deeds was unknown to the common law.
    The Legislature could not be ignorant that deeds were often made conveying several tracts in several counties. If, therefore, it had been intended to limit the provision to one tract lying in two counties, it would *have been so expressed. But the language used is perfectly appropriate to express several tracts in several counties; but is vague and uncertain, if it was intended to limit it to one tract lying in two counties.
    It is said that the policy of the act is to give notice to the world of the transfer, and incumbrance of property. But if this was the policy, it has been but partially accomplished. A judgment or decree in any county is a lien upon the land of the debtor, in whatever part of the State it may lie, from the first day of the term of the Court at which it is rendered. This rule of law was much harsher in its operation than that for which we contend in relation to the recording of conveyances, and yet no attempt was made to mitigate its severity until 1843.
    The first registry act, that of 1639-40, 1 Hen. Stat. 227, did not require the deed to be recorded where any of the land lay; but it might be recorded in any Court. The act of 1642, 1 Hen. Stat. 248, prescribes that mortgages shall be recorded in the County Court; but does not require it to be in the Court of the county where the land lies. The act of 1656, 1 Hen. Stat. 417, authorizes deeds to be acknowledged before the Governor and Council, or the County Courts. The act of 1657, 1 Hen. Stat. 472, is similar to that of 1656, except that it requires the deed to be recorded within six months; and the act of 1661, is like the last. The act of 1705, 3 Hen. Stat. 318, required the deed to be recorded in the General Court, or the Court of the county where the land lies; and the act of 1710, 3 Hen. Stat. 516, and that of 1748, 5 Hen. Stat. 408, are substantially the same in their provisions.
    This continued to be the provision, as to the place of recording the deed, until the passage of the act of 1785, 12 Hen. Stat. 154, when, for the first time, the words “or some part thereof,” were introduced. By the act of 1792, 1 Stat. at large, New Series, ch. 28, \ 1, p. 84, the recordation might be made in the District, *County, City or Corporation Courts. This continued to be the law until 1814, when the law as it now stands was enacted, and the deed is to be recorded in the County, City or Corporation Court “in which the land conveyed, or some part thereof, lieth.”
    Conceding, for the argument, that under the act of 1705, the deed should be recorded in the Court of all the counties in which any part of the land conveyed lies, when in 1785, the words “or any part thereof,” were introduced into the act, this could no longer have been necessary. The words are plain, and embrace the case; and the Court must give them efficacy, because they were, obviously, introduced to make a change in the law as it previously- was; and to restrict them to tracts divided by a county line, is to .give them a construction too narrow for the natural import of the expression.
    Under an act of Pennsylvania, similar to ours, the Supreme Court of the United States have held that a record of the deed in the county where one of the tracts lies, is sufficient. M’Keen v. Delaney, 5 Cranch’s R. 22. It is true, the objects of the laws are not the same; but the language to be construed is. In the American Digest, vol. 3, ? 53, p. 187, there is a reference to the case of Sims v. Reed, Cooke’s R., decided upon a statute of Tennessee; where it was held that the record of the deed in a county where a part of the land lies, is sufficient, though the words “or a part thereof,” are not in the statute. Tennessee Daws, vol. 1, $ 5, p. 26.
    At common law, there was no necessity to record a deed. This is, entirely, a statutory provision; and the Court will not, therefore, extend the statute farther than is required by its terms: and we submit, that whilst the terms of the act of 1792, are appropriate, if it only required the deed to be recorded in one of the counties in which the land lay, they are very much the reverse if it meant otherwise.
    *If the statute requires the deed to be recorded in all the counties in which the land lies, then we say this deed was recorded in the counties of Nelson, Amherst and Buckingham. There is no dispute as to the county of Nelson. The Judge below expresses some doubt as to the recording in Amherst, on the ground of the misrecital of the date of the deed in the certificate of the justices. But the question is, what deed is referred to by the justices? and if that can be ascertained, it can be a matter of no importance that the deed is misrecited as to the date. Upon the question of identity no one has any doubt.
    But there is another objection to the record of the deed in the county of Buckingham. It is held by the Court below that it was not left with the clerk to be recorded until the 1st of April. The clerk has endorsed the deed as having been left with him to be recorded on the 31st of March ; and in the performance of a duty imposed upon him by the statute, he has returned it to the Court as recorded on that day. This official act of the clerk, we submit, is conclusive of the fact; and it is not competent for the clerk, or any one else to disprove it. Har-kins v. Forsyth & als., llUeigh294; Tracy v. Jenks, 15 Pick. R. 465; Ames v. Phelps, 18 Id. 314. We submit, therefore, that the deed was duly recorded before the first of April 1836, in the counties of Nelson, Amherst and Buckingham.
    It is not denied by any one, that a deed conveying one tract of land which lies in several counties, is well recorded as to the whole tract if recorded in any one of the counties. If, then, the Elk Mills land is one tract, the deed being admitted to be well recorded in the county of Nelson, the whole land is thereby protected. This whole body of land, it is in proof, was occupied, and used, and cultivated by Horsley as one tract. It was advertised for sale and purchased as one tract; and though the James river runs through it, yet the land covered *by the river being the land of Horsley, it was not only coterminous and contiguous, but it was one body or tract of land.
    Dyons, Macfarland and Stanard, for the appellees.
    The deed which is the subject of controversy in this case, conveys several tracts of land in several counties, and has been recorded in one; and the question is, is it well recorded as to the land in the other counties? According to the argument of the counsel for the appellants, it has been the law of Virginia from 1785 to the present day, that a man owning property in the county of Henrico, may make a deed which will affect creditors and purchasers for value without notice, by recording it in the county of Dee or Acco-mack, if he happens to have an acre of land in one of these counties. If this be the result of a fair and just construction of the statute, of course this Court must so decide; but before the Court announces this decision it will consider well both the policy and the provision of the act.
    The act to be construed is a remedial, statute, intended to prevent frauds, and must, therefore, be construed so as to advance the policy and objects intended to be secured by it. What that object is cannot be doubtful, upon an examination of the various acts which have been passed on the subject of recording deeds. The preamble to the act of 1642-3, 1 Hen. Stat. 248, is: “Whereas divers persons as dayly experience informeth, doe closely and privately convey over their estates by way of mortgage, not delivering possession, whereby the creditors are defrauded and defeated of .their just debts, not having knowledge of the same, Be it therefore enacted, for redress of like inconveniences hereafter,” &c. An examination of the subsequent acts will shew, conclusively, that the same object was sought to be attained by the Degislature; and their constant effort was to compel the recording of deeds in such a mode as would give *notice to creditors, until, in 1705, they prescribed that deeds should be recorded in the General Court, or the Court of the county where the land granted should lie.
    It seems to be admitted by the counsel for the appellants, that from 1705 to 1785, it was necessary that deeds should be recorded either in the General Court or in every county in whiph any part of the land conveyed lay; though he referred us to some authorities which he supposed had given a different construction to similar language in statutes of the States of Pennsylvania and Tennessee. The case of Delaney v. M’Keen, as it is reported in 1 Wash. C. Ct. R. 354, shews, that the ques-ti on before this Court was not decided in that case. The reference which we have to the case from Tennessee does not enable ws to ascertain what was the statute under which it was decided. It seems that it was not a registry law, intended for the protection of third persons; but a law requiring a registry of a deed, before the legal estate should pass by it. Peters’ Dig. title Registry; Lessee of Patton v. Brown, Cooke’s R. 126. These cases cannot, then, vary the construction which the statute of 1705 would receive, looking alone to its terms.
    In 1785, the words ‘ ‘ or some part thereof, ’ ’ were introduced into the statute; and these words, it is insisted, have changed the law as it existed from 1705 to 1785. There is certainly no evidence, independent of these four words, that the Legislature then intended to change her policy, and retrace her steps. Deeds are still required to be recorded; and we would really be glad to know what is the object and policy of the Legislature in requiring the registry of deeds, if it is not to give notice to creditors and purchasers, and thereby prevent frauds upon them. It was certainly as important in 1785, that this notice should be had, as it was in 1705; and this Court will not presume that a policy and object, wise and just in themselves, have been abandoned *not only without reason, but against the -strongest reason, without very conclusive evidence that such was the intention of the Legislature. What then was the purpose of the Legislature in introducing these words into the act of 1785, and in retaining them to the present time? If we are disposed to rely upon the patent and obvious reasons which existed for this amendment of the law, then it is easy to find, in the changes which had occurred in the country since 1705, and which would continue to occur, a sufficient and sensible reason for the amendment, without supposing that the Legislature intended to change her policy in relation to the registry of deeds. These changes consisted in the numerous divisions of counties which had been made between 1705 and 1785, and which it was obvious to all would continue to be made; and a consequence of which was that a vast many tracts of land would run into two or more counties. This was an inconvenience which had arisen requiring a remedy; and the words introduced into the act of 1785 accomplished that object perfectly, without doing injury to creditors and purchasers; who, knowing where the land lies, know where to examine for in-cumbrances upon it. This, we submit, is sufficient to account for the amendment; and it is not consistent with any sound principles of investigation to hunt out secret causes for a result which may be accounted for by those that are obvious and certain.
    It is apparent from an examination of all these statutes, that the practice of conveying several tracts of land by one deed was not common at the time of their enactment, or was not in the contemplation of the Legislature. The subject conveyed, when real estate, is always spoken of as one; and therefore when the act speaks of the land conveyed, or some part thereof, it refers to a part of one tract, not one tract of several. The construction we have given to this amendment is strongly corroborated by the act of 1828, Sup. Rev. Code, p. 213, *which authorizes deeds to be recorded in other counties, on the certificate of the clerk of the Court in which it has been first admitted to record. The necessity or utility of this law depends, entirely, upon the necessity of recording the deed in all the counties in which the several tracts lie. This act is intended to afford the grantee facilities for recording the deed when the law requires him to record it. But to facilitate the doing what it is of no importance should be done, would seem to be useless.
    Assuming that it is necessary the deed shall be recorded in the several counties in which the land lies, the question then arises, has it been so recorded? The counterparts sent to Amherst and Buckingham, are dated the 13th of March ; and the certificate of the justices refers to a deed dated the 30th of March 1836.
    Prior to the act of 1814, it was necessary that deeds should be proved or acknowledged in Court, that they might be recorded. They may now be acknowledged before justices; and the acknowledgment, rectified by the justices to the clerk, is authority to the clerk to record them. It is not, and' cannot be pretended, that the clerk can admit a deed to record upon any other evidence than the oath of the subscribing witnesses to the deed, or on the acknowledgment of the grantor in the office, or the certificate of such acknowledgment before them, by two justices. In the form of the certificate given by the act of 1819, the identity of the deed is to be ascertained by the clerk from two facts: one the date, the other its being annexed to the certificate. It, certainly, is not competent to the clerk to hear testimony to prove that the deed delivered to him is the deed certified by the justices; and, therefore, unless the deed delivered to him is identified by the certificate, he has no evidence of its acknowledgment by the grantor which will authorize him to record it. The deed in this case, instead of being identified by the date, as provided for *by the statute, is positively disproved: so that even if it was annexed to the certificate, we should have the two facts given for the identification of the deed contradicting each other. The clerk cannot know which is true. He cannot hear parol testimony on the question, and he must of necessity refuse to receive a deed which not only is not sustained by all the evidence which the statute requires, but is repudiated and condemned by that evidence.
    But if this deed is properly recorded, the question then arises, when was it so recorded in Buckingham? It is said by the counsel for the appellants, that the endorsement of the clerk upon the deed, and his return of it to the Court, as having- b.een left to be recorded on the 31st of March, is conclusive ; and no testimony is admissible to disprove the fact. And Harkins v. Forsyth & ais., 11 Heigh 294, is relied upon to sustain this proposition. That the deed .was not left with the clerk on the 31st of March, but was left with him on the 1st of April, is true beyond all dispute or cavil. That the endorsement of the clerk is false in fact, we are authorized to say upon his own authority, and the authority of the agent who took the deed to the office. The sole question, therefore, is, whether the ■act of the clerk is of such a character that though unquestionably erroneous it cannot ■be corrected? The case of Harkins v. For-syth was the case of a privy examination of a married woman. In taking that examination, the justices act judicially; and their certificate is to be treated as a judicial act; and is the only admissible proof of the privy examination. The office of the clerk, in admitting a deed to record, is purely ministerial; and his endorsement upon the •deed, of the time when it was received at his office, is required by no law. As a ministerial officer, he is under the supervision of the Court; and the Court will correct his mistakes when he falls into error. Currie v. Donald, 2 Wash. 58; Turner v. Stip, *1 Wash. 319; Beverley v. Ellis & Allan, 1 Rand. 102. It is im■possible, therefore, to bring this act of the clerk within the principle of the case of Harkins v. Forsyth.
    When the act of the clerk is fraudulent it will be set aside; as would the judgment of the highest Court in the country: and the parties claiming the benefit of the fraudulent act, are thereby connected with it. But in this case, the person who took the deed to the office was the agent of the grantees, and was a party to the transaction. Take it, that the clerk thought the parties were entitled, under the circumstances, to have the deed endorsed as received on the 31st of March, yet the agent of the grantees was a party to the act; and the Court will correct it on the ground of mistake. The principle is, that where the officer is guilty of a misprision, and a party comes to claim the benefit of that misprision, he makes himself a party to it; and subjects himself to be implicated in the ■fraud or mistake of the officer. In the case of Harkins v. Forsyth, the parties, claiming under the certificate of the justices, were not present and concurring in it. In this case, the act was done at the instance of the agent of the parties. In that case, the mistake of the justices could only operate to injure the parties claiming under the deed. In this, their only ground of claim, is the error of the clerk. We-submit, therefore, that if Harkins v. Forsyth is law, which may well be doubted, and the judicial act of the justices, in -taking the privy examination of a married woman, is conclusive of the truth of the facts which they certify, it is no authority to sustain the conclusiveness of the unofficial, ministerial act of the clerk, in endorsing this deed as received in his office on the 3lst of •March, instead of the 1st of April.
    Heigh, for the appellants,
    in reply. Was this deed duly recorded on the 31st of March 1836, in the county of Buckingham? The clerk, by his endorsement on "the deed, says it was. Can you disprove his official certificate? Take the statement of the facts, as given by the clerk and the messenger who carried the deed to the office; what authority is there for saying that this messenger was the agent of the cestuis que trust in the deed, and a party to the fraud or falsehood, if such there be?
    It is true, that the circumstances of the case of Harkins v. Forsyth is not like this; but the reasoning of the Court is equally applicable to both cases. The principle is, that where the law appoints an officer to do an act, he must be trusted to do it. The Judge, in delivering the opinion of the Court in that case, refers to the case of a clerk certifying that a deed is acknowledged, as conclusive. The case of Tracy v. Jenks, 15 Pick. R. 465, is in principle the same. There, the original certificate of the register that the deed was received and recorded on a particular day, was held to be conclusive against creditors. Such, too, was the case of Ames v. Phelps, 18 Pick. R. 314.
    It is said the clerk is a ministerial officer. The act, 1 Rev. Code, ch. 99, § 8, requires the clerk to make out a list of deeds left with him 'to be recorded; and to set it up at the door of the courthouse; and present it to the Court. This was done by the clerk in this case. It is said, too, that the clerk is not required to note the time at which a deed is left with him to be recorded, upon the deed, or indeed any where. But the time is important. The clerk is bound to keep a record of it; and shall he keep that record in his memory? Gentlemen are urging that there was fraud in this endorsement, though it was not urged in the Court below ; and yet they propose to throw open the door to fraud. But where is the corruption pleaded? The bill says nothing of fraud; and states no objection to the certificate of the clerk. It is said, if the clerk is guilty of fraud it may be corrected. True. But the party seeking to correct it must state the fraud in his bill; and must prove it.
    *It is farther objected to this deed, that it is not duly recorded in Buckingham, and Amherst, because the date of the deed is misstated in the certificate of the justices, and therefore it is not properly identified. The counterpart sent to Nelson is dated the 30th; those sent to Amherst and Buckingham, are, by mistake, dated the 13th of March. The act of 1800 says, the certificate of the justices shall be “to the effect. ” The act of 1814 ■says, “in the following form;” the act of 1818, “to the following effect:’’ and then ¡ in each follows a form of certificate. If; the certificate had been written on the deed, referring to it as this deed, or the within deed, there could have been no doubt of the identity; and that certainly is all that is required. In this case, the bill does not charge that the deed recorded was not the deed which the justices certified to the clerk. No complaint was made that the true deed was not recorded; and although a Court of equity will correct the fraud or mistake of the clerk, or the justices, it must be done upon a proper bill, putting the fraud or mistake in issue.
    But, under the circumstances, is not the deed recorded so as to have priority over the judgments of the appellees? It was left with the clerk before sunrise on the morning of the 1st of April, when the Court, at which the judgments were obtained, could not sit. Skipwith v. Cunningham, 8 Beigh 271, decides that the judgment relates to the first day of the actual sitting of the Court, and the first moment of the day. But the first moment, must refer to the first moment at which the Court could lawfully commence its session. Bord Mansfield, in Combe v. Pitt, 3 Burr. R. 1423, says: “Though the law does not, in general, allow of the fraction of a day, yet it admits it where it is necessary to distinguish. And I do not see why the very hour may not be so too, where it is necessary, and can be done. For, it is not like a mathematical point, which cannot be divided.” Coke says, different nations count the day from different *hours, and for many purposes, the common law counts from midnight. Coke Bit. 135 a. ; 2 Tho. Coke 386-7. But this is not invariable: and the Mirror of Justice says, it is an abuse to hold a Court before the sun rises. Id. 386.
    If, however, it shall be held, that the deed has not been recorded in Buckingham in time to overreach the judgments of the appellees, the question arises, whether the record of it in the county of Nelson, will have that effect. The act of assembly prescribes that the deed shall be recorded in the county “where the land, or some part thereof, lieth.” It is admitted that if the county line divides the tract, the deed may be recorded in either county. Was the I31k Mill land one tract?’ It was held and cultivated as one tract; and Horsley always refused to divide it. But it is said it was purchased at different times, from different owners; and that the James river divides it. Are we to look back to the original patents, to ascertain the oneness of a tract of land; or may not several tracts be consolidated into one, by being held, and .cultivated, and enclosed, and bought, and sold as one. As to the objection that the James river divides the land; the case of Meade v. Haynes, 3 Rand. 33, shews, that on streams not navigable, a grant of the land on one side extends to the middle of the stream. Prior to the act of 1780, 10 Hen. Stat. 226, a grant on a fresh water river, though navigable, gave the land to the middle of the stream. Crenshaw v. Slate River Co., 6 Rand. 245. That act forbade the grant of the shores of any river or creek in Bastera Virginia, which remained ungranted, and which have been used as common to all the good people thereof. The act of 1792, Old Rev. Code, ch. 86, | 6, adds the beds of such rivers and creeks. But the lands in Buckingham and Amherst were granted prior to 1780; and, therefore, Horsley owning the land on both sides of the river, owns the whole bed of the stream. The two tracts are then coterminous, and have been held *and cultivated by Horsley as one; and the case comes within the admitted construction of the act, that a deed conveying land which lies in two counties, is well recorded as to all, if recorded in either.
    The only remaining question, is upon the construction of the act of 1819. That act says, the deed shall be recorded “in the county where the land or any part thereof lieth.” It has been already shewn, that the registry acts passed prior to 1705, did not require the deed to be recorded in the county where the land lay. And this is clearly evinced by this act; as it recites the fact, and confirms the registry of deeds so recorded. By the act of 1705, the deed was required to be recorded where the land lay. The marginal note of the case in Tennessee, does seem to sustain the proposition, that under such a provision, a registry of the deed in a county in which any part of the land lies, is sufficient. If this be so, then it is a fortiori that it is sufficient under the act of 1785. The committee who prepared the act of 1785, were remarkable for their accuracy; and they intended to change the act of 1705. What change did they intend to make?
    It is true this is a remedial statute, and is to be construed as such; but the Court cannot therefore make a law. The deed conveys land in Amherst, Nelson and Buckingham. Is the land in Nelson, conveyed by that deed, a part of the land conveyed? If it is, then the terms of the law are complied with, for the deed was duly recorded in the county of Nelson on the 31st of March 1836.
    The act provides for but one registry of a deed. If, then, it requires that the deed shall be recorded in each county in which any tract convejed lies; the provisions of the act render it impossible that the deed which conveys several tracts, in several counties, shall be a recorded deed, so as to protect the grantee against creditors, and subsequent purchasers; and thus a law, which *gentlemen tell us, was intended to prevent frauds, will open wide the door to the grossest fraud and injustice. Now it is very true that the statute was made to prevent frauds; but in guarding the interests of creditors, and purchasers, it was not the object or policy of the act to destroy the rights of grantees in deeds. The extreme cases supposed by the counsel for the appellees would be cases of actual fraud; and, therefore, would not be protected by any construction of the statute which may be adopted. But the ’Legislature had no such extreme' cases in contemplation. The law was intended for the ordinary cases of a grantor conveying, several tracts, in several adjoining counties, by one deed. The act proposed to protect creditors and purchasers from fraudulent conveyances, not by giving them notice in all cases, but by requiring conveyances to be made openly. By the act of 1785, deeds recorded within eight months were good from their date; and a judgment, or conveyance, between the date of the deed and the registry, was overreached by the subsequent registry of the deed. The act of 1819 is the. same as to simple deeds. And thus, if notice was the object of the law, that object was defeated by the act itself. The case of Doswell v. Buchanan, 3 Leigh 365, decides that whilst registry is necessary to the validity of a deed as against creditors and purchasers, it is not notice. It will not do to say that was an equitable estate; because a mortgage, whether of a legal or equitable estate, must be recorded. And the: case-,is,,therefore, an authority to shew that publicity, and ’ not notice, was the means relied upon to prevent frauds upon creditors and subsequent purchasers.
    It is said the act of 1828, Sup. Rev. Code, ch. 154, p. 213, is a legislative construction of the statute. There is not a word in the act of 1785, or 1819, which requires the original deed to be recorded in every county where the land lies; and although the Legislature seems to *have thought that such was the law, that certainly does not make it law. It is for that body to say what the law shall be; it is for this Court to say what the law is.
    
      
      Cabell, P., was related to some of the parties. Stanard, J., had been, counsel in the cause.
    
    
      
      Deeds. — The principal case is cited in the following: Carper v. McDowell, 5 Gratt. 239; Taliaferro v. Pryor, 12 Gratt. 285; Hockman v. Hockman, 93 Va. 456, 25 S. E. Rep. 534; National Bank v. Conway, 17 Fed. Cas. 1204; Herring v. Lee, 22 W. Va. 672; Calwell v. Prindle, 19 W. Va. 672; Twiggs v. Chevallie, 4 W. Va. 479; foot-note to Jones v. Marick, 8 Gratt. 129. See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that where a deed conveys several tracts of land lying separately, in different counties, the rec-ordation thereof in only one of the counties is not effectual, in regard to the tract or tracts lying in the other county or counties, within the true intent and meaning of the statute regulating conveyances, 1 Rev. Code, ch. 99; and therefore, that the deed of trust in the proceedings mentioned, made by John Horsley and wife in March 1836, to Frederick M. Cabell and Alexander Munday as trustees, though recorded in the counties of Nelson, Amherst and Buckingham, is, null and void in regard to the lands conveyed by said deed lying in the county of Greenbrier, and the lots lying in the City of Richmond, as against the creditors of said Horsley, by judgments against him recovered in the Courts of this Commonwealth before the due recordation of said deed in the county of Greenbrier and City of Richmond respectively.

And the Court is further of opinion, that where a navigable stream is the dividing line between two counties, and so separates lands conveyed by deed, as to throw part thereof into the county on one side of said stream, and part thereof into the county on the opposite side of the same, the parts so separated must be regarded as distinct tracts lying in different counties, within the true intent and meaning of said statute; and the recordation of such deed in one of the counties' is not effectual in regard to the part lying in the opposite county; and therefore, that the recordation of the deed of trust aforesaid in the counties of Nelson and Amherst, is null and void in regard to all the lands which it conveys, lying in the county of Buckingham, as *against the creditors of said Horsley, by judgments against him recovered in the Courts of this Commonwealth before the due recordation of said deed in the county of Buckingham.

And the Court is further of opinion, that though the apparent date of the counterpart of said deed of trust, which was recorded in the county of Amherst, is the 13th of March 1836, and the certificate by the justices of the acknowledgment thereof by the grantor Horsley, describes the same as bearing date on the 30th of March 1836, yet that this does not affect the validity of the recordation of said counterpart in the county of Amherst, inasmuch as the identity of said counterpart with that mentioned in the said certificate of the justices, sufficiently appears from other parts of said certificate, and the annexation thereof to said counterpart. And the same is equally true, mutatis mutandis, in regard to the counterpart of said deed which was recorded in the county of Buckingham.

And it appears to the Court, that the certificate of the clerk of the County Court of Buckingham, endorsed on the counterpart of the said deed of trust which was recorded in that county, states that the same was filed in his office on the 31st of March 1836, and upon the certificate of acknowledgment thereto annexed, admitted to record; and also, that in a list of conveyances returned by said clerk to said County Court, as by him admitted to record, which list was entered on the minutes of said Court, the said counterpart is stated by him to have been admitted to record on the same 31st of March, upon the certificate of two justices. But it also appears to the Court, that in truth and in fact the said counterpart was not filed in said office, nor delivered to said clerk for recordation, until and upon the 1st day of April 1836, and that the fact in regard to that matter was knowingly and wilfully misstated by said clerk in his said certificate and in the list of convey-anees returned *by him as aforesaid. and against the truth "of the case; and the effect of it, if available, is to give to the The Court, notwithstanding, is satisfied from the evidence, and believes without hesitation, that in said misstatements the said clerk was governed by no ill intent, but by a misapprehension of his duty in that respect. Still, however, the said certificate was improper and unlawful, said deed of trust priority over the judgments in the proceedings mentioned recovered by the appellees; and thereby to operate as a fraud upon them in favour of the appellants claiming under said deed as cestuis que trust therein, and in consequence of the act of the person who delivered the same to said clerk for recordation, and who must be regarded as their agent in that matter. The Court, therefore, without expressing an opinion as to the effect of said certificate upon the rights of third persons claiming as purchasers without notice, is of opinion, that as between the parties in these causes, the said deed must be treated, in a Court of Equity, as admitted to record in the county of Buckingham, not on the 31st of March, but on the 1st of April 1836; and must be postponed to the said judgments recovered by the ap-pellees at the April term 1836 of the Circuit Superior Court of Amherst county, and which have relation to the said 1st day of April; that being the first day of said term.

Wherefore the Court is of opinion, that there is no error in the said decree. The same is therefore affirmed with costs to the appellees; and the causes are remanded to the Court below, to be farther proceeded in according to the principles above declared.  