
    Enos Tart vs. James Crawford.
    Wherever a subsequent purchaser has received explicit notice of a former conveyance, such conveyance though not recorded will be valid, legal, and effectual against the subsequent conveyance of such purchaser, though recorded in due time.
    Tried before Mr. Justice Johnson, at Marion, March Term, 1821.
    This was an action of trespass to try titles. The plaintiff produced, at the trial, a grant to John Hughes, for 386 acres, dated 5th December, 1796, also, a conveyance from Hughes to John Deer, for the above tract, dated 15th May, 1813, and recorded 18th May, 1813, and a conveyance from Deer to the plaintiff, for a part of the above mentioned tract, dated 1st March, 1818.
    The trespass was proved, and the location of the land established,,
    -The defence was then gone into»
    
      Josiah Lewis, a witness on the, part of the defendant, swore that he was the surveyor who originally surveyed the land. That although granted to Hughes, it was for the use of John Smith, who had borrowed a warrant from Hughes to lay on it. That the witness got the grant out of the office himself, and shortly after got Hughes to execute a deed, in the usual form, to Smith, which he delivered to him.
    The will of John Smith devising the land to his daughter, was produced.
    The same witness, (Lezvis) further stated, that after the death of Smith, aman by the name of Maloy, who inherited from the daughter, told him that the deed made by Hughes to Smith had been destroj^ed by rats, and requested the witness to prepare a quit claim deed, and get Hughes to sign it. Maloy, at the same time, gave him an affidavit of the destruction of the deed. Not long after, John Deer applied to witness to know if he had procured this paper to be executed, and told him that he had purchased the land from Maloy ; that he had seen the fragments of the old deed, and that-it was so much mutilated as to be unintelligible, and that Maloy had sworn the truth about it; He then requested the witness to procure the titles to be executed by Hughes to himself; The witness reminded him, that Smith, who was his grand-father, had sold a part of the land to Ervin, and that it would be unjust to take advantage of the loss of the deed. He said he knew it, and that witness need be under no apprehension, he intended to act honestly. The witness procured Hughes tó execute the deed to Deer, now given in evidence.
    The defendant then gave in evidence a deed, signed and sealed by John Smith, which he contended was a deed from him to James Ervin, for the liuid, but which was unly a contract to sell, dated in 1802, and a formal deed from John and Samuel Smith, the executors of John .Smith to Ervin, for the land, dated in 1802.
    The present plaintiff was a witness to both these papers, and also one of Smith's executors, and lived in the immediate vicinity. As the will did not give the power to the executors to sell, their deed conveyed no title, and proved only that Ervin had complied with the condition of the contract, entered into with the testator.
    The deed from Hughes to Smith; which was destroyed, had never been recorded, and it was contended on the pari of the plaintiff:
    1st. That the deed not being recorded, was void as to Deer, the subsequent purchaser.
    2d. If not as to him, it was void as to the plaintiff who was a purchaser without notice.
    A.s to the first point, the Judge charged the jury that the object of recording was to guard subsequent purchasers from fraud and imposition, and that the notice to Deer dispensed with the recording.
    And' as to the second, that the circumstances of the plaintiffs having been one of the executors of Smith, and necessarily conversant with his affairs, his living in the neighborhood, his having subscribed to the contract between Smith and Ervin and the deed from his executors to him, as a witness, authorized the presumption that he also had notice, and that Deer's having had notice he coulcj take nothing by the deed, and could therefore convey nothing to the plaintiff,
    The'Jury found for the defendant.
    The plaintiff moved for a new trial, upon the ground, that the presiding judge mistook the law, in charging the jury that the notice to Deer of the prior conveyance of Hughes, the grantor, to John Smith, dispensed with the necessity of recording that deed; and that therefore the plaintiff, who claimed under Deer could take no title.
   Mr. Justice Richardson

delivered the opinion of the court.

The act of 1785, (Grimke, P. L. 381,) after directing how, when and where conveyances of land shall be recorded, proceeds thus ; “And if any deed or other'conveyances shall not be recorded within the respective times before mentioned, such deeds, &c. shall be valid only as to the parties themselves and their heirs; but shall be void and incapable of barring the right of persons claiming as creditors, or under subsequent purchases, recorded in the manner hereinbefore described.”

The first question which arises then is, whether the conveyance of the land in question made by the grantor Hughes to, John Smith, ■ having never been recorded, is void as to Deer, the subsequent purchaser ?

The conveyance to John Smith, though not recorded, was well known to Deer. The object of the act of 1785, was to prevent subsequent purchasers from being defrauded in their purchases of lands by reason pf prior conveyances remaining unrecorded and concealed. The important end of the act was to give notice of prior sales to subsequent purchasers, in order to keep them upon their guard, and to save them from the purchase of lands already conveyed to another person.

Whenever the subsequent- purchaser has received actual notice of the former conveyance, the end in view has been answered. If, with a knowledge of the former conveyance, he will still purchase the land, he commits an act of folly or dishonesty, he must either intend to give away the consideration money, or to defraud the former purchaser of the land, which he knows to have been fairly purchased by him. To permit him to do so, would be to pervert the character of the law, and to make it an engine of fraud instead of a safeguard against it.

Whenever then the subsequent purchaser has received explicit notice of the former conveyance, such conveyance, though unrecorded, will be valid, legal, and effectual against the subsequent conveyance of such purchaser, though recorded in due time.

This construction, though not drawn from the letter of the act, is warranted by adjudications upon similar acts.— (4 Mass. Rep. 637. 2 Com. 705. 10 East, 3S0.) And is backed and supported by arguments of convenience and policy, while its positive call upon the subsequent purchasers to reciprocate the good faith required of others for his benefit, plainly recognizes the true spirit of the act itself, and is therefore satisfactory.

The second question is, whether the notice to Deer will, in like manner postpone to the claim of John Smith, -the rights of the plaintiff Tart under his conveyance of the land from Deer ? In other words, is the notice to Deer the same as notice to Tart ?

Here, a very different rule of great justice and convenience must govern ; which is, that where a title to any property is genuine, l^gal and effectual upon the face of it, any secret fraud, however destructive of tlie title of a party to the fraud, yet such secret fraud cannot infect and weaken the title of a purchaser for valuable consideration, and of good faith, who is totally ignorant of, and without the means of discovering the fraud.

This rule has been well considered, and recognized in the cases of Reaborne vs. Teasdale, and Teasdale vs. Atkinson, (2 Bay 546.) In the former, the title of Reaborne to certain negroes washolden to be void, because fraudulent. In the latter, the same court held the same title valid when transferred to Atkinson, because he was a purchaser for valuable consideration, and ignorant of the fraud; though in point of fact the fraud was equally proved in both these cases. See also 10 Johnson, 185. 2 Fonb. 74.

Such was the situation of Tart; the title of Deer was genuine, and in appearance legal and effectual. Tart had no explicit notice of the prior conveyance to John Smith, and had given a valuable consideration for the land. A skilfull and circumspect man would have deemed the title of Deer perfect. It was perfect but by reason. of Deer's secret knowledge of the unrecorded conveyance of Hughes to Smith. Tart, if he really knew this secret, would have been in the same situation as Deer; but his title cannot be weakened by the notice to Deer alon'e.

C. Mayrant, for the motion.

Drvin, contra.

In this respect then, the charge "to the jury was founded in mistake ; and anew trial is therefore ordered, at which it may be ascertained whether Tart as well as Deer had notice of the conveyance to John Smith.

justices Noit and Huger, concurred.  