
    *Beck’s Adm’x v. De Baptists and Others.
    March, 1833.
    Deeds of Trust -Recordation Bona Fide Purchaser— Case at Bar.- -By written articles, Head contracts to sell to Benj. De Baptist, a lot of land, for Pricks to be furnished and laid hy vendee in walls of a house to be built for vendor: vendee, unable to perform the contract, transfers it, before work begun, to ,lohn and william De Baptist, with Head’s consent; John and William borrow $506 of Beck, and give him a deed of trust, of the lot to secure the payment; then, John and William furnish the bricks and do the work for Head, according to the contract; but, afterwards. Ben-iamin sells the same lot to TOdward Do Baptist, and he sells it to Long, and Beniamin, Kdward, John and William all join in conveyance to Long, all the parties having actual notice of Beck’s deed of trust.; and then Long sells it to Adams, who has no notice of the deed of trust; — the legal title having been retained by Head, as security for performance of the contract on part of vendee, and still remaining in him: Hki.d, that Beck has the best right to call for the legal title, and to subject the property to the payment of the $500 secured to him by the deed of trust, if that deed was duly recorded be fore Adams’s purchase, otherwise not.
    Upon a bill in the superiour court of chancery of Fredericksburg, exhibited by James Beck in his lifetime, and upon his death pending the suit revived by his ad-ministratrix, against Benjamin, John, William and Edward Dc Baptist, Joshua Dong, Thomas Adams and Emanuel Head, the case appearing by the pleadings and proofs, was thus:
    By articles of agreement between Emanuel Head and Benjamin De Baptist dated the 19th August 1818, Head contracted to sell and convey part of a lot in the town of Fredericksburg to Benjamin De Baptist, for 100,000 good and merchantable bricks to be furnished and laid by him, in a workmanlike manner, in the walls of a house which Head was then about to build, and 100 dollars in money or groceries, to be paid or delivered by the vendee. Head retained the legal title as a security for the performance of the contract on the part of the vendee.
    Benjamin De Baptist, finding himself unable to fulfil the contract on his part, by parol agreement, on the 23rd November 1818, transferred the contract to his brothers John and William De Baptist, who were to fulfil his agreement *with Head, and thereupon to receive the conveyance of the title from him. To this transfer of the contract, Head was privy and assenting, and wrote an agreement on the articles, stating the transfer and the terms of it, to be signed by all the parties, but it was never in fact signed by any of them. The legal title remaining in Head, it was alleged in the bill, that Benjamin De Baptist executed a _deed convcying^his equitable interest to John and William, which deed was afterwards fraudulently suppressed; and there was some, though not conclusive, proof, to shew that such a deed had been executed.
    On the 3rd April 1819, John and William De Baptist borrowed 500 dollars of the plaintiff Beck, for the purpose, it seemed, of enabling them to comply with the contract with Head; and conveyed the lot purchased of Head, or rather, in effect, their equitable interest therein, to a trustee, in trust to secure the payment of the 500 dollars to Beck. It was alleged in the bill, and not denied in the answers, and there was moreover strong proof to shew, that this deed of trust from John and William De Baptist was duly recorded in the hustings court of Fredericksburg; but no certificate of the registry of the deed appeared in the record of this suit.
    Notwithstanding the transfer of the contract to John and William, Benjamin De Baptist executed a deed conveying- the lot (that is all his equitable interest in it) to his brother Edward. This deed bore date the 5th May 1819, and was recorded on the 5th November in that year. It was alleged in the bill, that the deed was antedated, and that it was in fact executed on the day it was recorded; but of this there was no proof.
    Meantime, in the course of the year 1819, John and William De Baptist commenced the building of the house for Head, furnishing and laying the bricks in the walls, according to the original contract; but they did not intirely complete the contract on their part; and then, Edward De Baptist undertook and finished the walls.
    * Whereupon, Head prepared a deed of conveyance of the lot he had sold, to Benjamin De Baptist; which deed was not delivered, because a part of the purchase money was yet to be paid; and after-wards, he was requested by Benjamin, to execute the deed to Edward De Baptist, and by Edward to execute it to Joshua Dong. But the. balance of the purchase money remaining still unpaid, Head withheld the conveyance, retaining the legal title as security for the debt.
    But on the 9th December 1819, a deed of convej'ance of the lot was executed to Long, by Benjamin De Baptist, ihe original vendee, John and William De Baptist, who were first substituted for him, and Edward De Baptist, all joining in the conveyance; thus shewing the knowledge of all parties to the deed, of the intermediate rights of John and William; and there was clear proof, that, at the time this deed was made to Long, Benjamin and Edward De Baptist and Long, all three, had actual and full notice of the deed of trust of the 3rd April 1819, which had been executed by John and William De Baptist to secure the debt of 500 dollars to Beck; and indeed, that it was a main purpose of the transaction, and a purpose in which Long co-operated, to defeat Beck’s security.
    On the 31st December 1819, Long sold and conveyed the lot to Thomas Adams. The bill charged, that Adams had actual notice of Beck’s rights under John and William De Baptist’s deed of trust of the 3rd April 1819, and that Beck had given him such notice, before he paid the purchase money to Bong. But Adams in his answer denied that he had such notice, and there was no proof that he had.
    The legal title remaining still in Head, the bill claimed that Beck had the preferable right to call for it; and prayed, that the lot should be subjected to the payment, first, of any balance of the original purchase money that might yet remain due to Head, and then to the payment of the 500 dollars and interest for which it was mortgaged by John and William De Baptist to Beck, by their deed of the 3rd April 1819.
    *JSTone of the defendants in theid answers, pleaded or in any way relief on, the statute of frauds, as affecting the validity of the transfer of the contract or purchase by Benjamin to John and William De Baptist.
    It seemed, that Head received full satisfaction of the balance due him during the pendency of the suit in the court of chancery ; for he expressly waived an account ■which had been ordered to ascertain the balance; so that the controversy which remained to be decided, was that between Beck and the other defendants.
    The chancellor, on the hearing, dismissed the bill: from which decree, Beck by petition to this court, prayed an appeal; which was allowed.
    The cause was argued by Harrison and Stanard for the appellant, and by Johnson for the appellee.
    I. The fust question was a question of fact; namely, whether, after the parol agreement between Benjamin De Baptist and his brothers, John and William, whereby he transferred to them the benefit of his purchase of the lot from Head, and they undertook to perform the contract on the part of the purchaser, Benjamin made a deed to John and William conveying to them his equitable interest in the subject? The proofs furnished reason to justify an inference, that there was such a deed executed ; but the evidence on the point, was certainly not decisive.
    II. Supposing no such deed from Benjamin to John and William was executed, and that the transfer of the contract of purchase by him to them, was by parol agreement, the question arose, whether the statute of frauds affected the vaBdity of the parol contract of transfer by Benjamin to John and William, of his equitable interest in the subject under the articles of agreement with Head?
    The counsel for the appellant maintained, 1. that the statute of frauds had no manner of application to the case; that the only rights Benjamin had, were those he held under his executory contract with Head, which was in writing, as*the statute required; that the statute applied to the sale of legal titles, or at most equitable titles perfected, not to the transfer of exec-utory rights under executory contracts for the sale and purchase of land; that as the executory contract might have been rescinded or abandoned by parol, so it might be transferred from the purchaser to another by parol. But 2. if the statute of frauds applied to the case, it had not been pleaded, or in any manner relied on. And 3. if the statute applied, and had been formally pleaded, there was such a part performance by John and William, of the contract with Benjamin, whereby his contract with Head was transferred to them, and they substituted as purchasers of the lot in his place, as would suffice to take the case out of the statute.
    The counsel for the appellees, argued, 1. that the statute of frauds invalidated the parol agreement between Benjamin and his brothers, John and William. 3?or on Benjamin’s part, it was a sale, and on theirs a purchase, of the equitable right to the lot which he had acquired under his contract with Head. If he had performed the contract on his part, and thus acquired a perfect equity in the subject, he would certainly not have been bound by a parol agreement to sell or transfer such an equity in land, upon the same principle that a mortgagor was not bound by a parol agreement for the sale of the equity of redemption. The distinction between the sale of an equitable "right in lands under a contract of sale consummated by performance on both parts, and an equitable right depending on an ex-ecutory contract of sale not yet completed by performance, was, he thought, quite too nice. 2. It was no objection to the de-fence founded on the statute, that it was not pleaded or relied on in the answers. It could not have been pleaded. The plaintiff did not alleg-e in his bill, that there was a parol agreement between Benjamin and John and William, for the transfer 'of his rights to them : he alleged a written contract, and that fully executed; namely, a deed from Benjamin to John and William, conveying his equitable right *to them, and the suppression of that deed. He had made out a case in proof, different from that alleged in his bill; and if the statute of frauds applied to the actual case, he could not object that it Was not pleaded in defence against the unfounded pretensions of his bill. 3. As to part performance, he said, what had been done by John and William amounted, in effect, to no more than paying the purchase money; and it was well settled, that payment of the purchase money was not such a part performance of a contract for the sale and purchase of lands, as would take the case out of the statute of frauds.
    Stanard, in reply, said that the reason why payment of the purchase money was not sufficient part performance to take such a case out of the statute, was, that if nothing more was done, the purchase money afforded an exact measure of retribution, and complete compensation might be given to the purchaser by refunding the money. But here, specific articles of no determinate value, bricks, were to be furnished, and worked up in the walls of a house; there was no certain measure of compensation, and justice could only be done by a specific execution of the contract.
    III.There was no doubt, that all the defendants, except Adams, had actual notice of Beck’s rights under the deed of trust of the 3rd April 1819; and it was contended on the one side, and denied on the other, that Adams also had actual notice. In truth, there were circumstances which raised a suspicion that he had; but there was no sufficient proof of the fact. But
    IV. The counsel for the appellant insisted, that it was immaterial, whether Adams had actual notice or not; for he, as well as Beck, claimed only an equity, and Beck’s was the elder equity. The maxim, they said, was strictly applicable, Qui prior est in tempore, potior est in jure.
    The counsel for the appellee said, that rule was not applicable in Virginia, to a case like the present, where a mortgagee was asserting his rights under the mortgage, against a subsequent fair purchaser, unless it apj>eared that *the mortgage was duly recorded; for the statute was express, that all mortgages and deeds of trust, to be effectual as against such purchasers, must be recorded. 1 Rev. Code, ch. 99, I 4, p. 362. And there was no certificate exhibited in the court of chancery, of the registry of the deed of trust under which Beck claimed.
    Stanard replied, that it was alleged in the bill, and not denied in the answers, and admitted on all hands, in the sequel of the proceedings, that the deed of trust had been duly recorded; but if it was not, that the mortgages or deeds of trust required by the statute to be recorded, were only such as passed the title in the subject.
    
      
      Deeds o£ Transí — Unrecorded—Bííect as to Bona Fule Purchasers. — On this uuestion, the principal case is cited in foot-note to Bird v. Wilkinson, 4 Leigh 266; Weinberg v. Rempe. 15 W. Va. 858. The principal case is also cited in Cox v. Wayt. 36 W. Va 817.
      See monographic, note on “Deeds of Trust’’ appended to Cadwallader v. Mason, Wythe 188.
    
   CARR, J.

There is pretty strong evidence, that before the execution of the deed of trust by John and William De Baptist of the 3rd April 1819, under which Beck claims, they had received from Benjamin, a conveyance of his equity under his contract with Head, and that this was shewn to Beck to induce him to make the loan. But I do not consider this point as material. It would only be proof that Benjamin had abandoned his interest in the contract to them; and that is otherwise clearty established.

Subsequent to the execution of the deed of trust to Beck, and with notice of it, Edward De Baptist, another brother, received from Benjamin a deed for this same equity ; and all the De Baptists joined in conveying the same to Dong, who also had notice of Beck’s lien. Dong sold to Adams. The legal title being still in Head, Beck filed this bill calling for it, making the De Baptists, Dong and Adams parties, and praying to subject the lot to sale in satisfaction of his debt. Head answers admitting the contract, the transfer of it by Benjamin to John and William, and the performance on their part; (he does not in his answer, indeed, admit full pa3rment, but it was afterwards admitted by his counsel.) In this state of the case, there seems to me nothing for the statute of frauds to operate upon. It was not pleaded; but it was urged, in the argument, as bearing upon the transfer *of the contract from Benjamin to his brothers John and William. But I cannot think that this is either within the words or the mischief of the statute. The contract for the sale of lands, which the statute requires to be in writing, is here, the contract between Benjamin and Head; which was reduced to writing. By furnishing the bricks, building the house, and paj'ing the 100 dollars, Benjamin would have acquired a right to call on Head for the legal title. He transferred to his brothers, the right to stand in his shoes; that is, to do the work, and pay the money: Head accepted them: but this gave them nothing but the privilege of performing the conditions of the written contract; and upon such performance, an equity to call upon Head for the legal title to the lot; a matter (as it seems to me) wholly beside the statute.

The only question, then, is, who has the best right to call for the legal title, which Head is willing to make? Adams relies a good deal, in his answer, on his being a purchaser without notice: but of what is he a purchaser? Not of the legal title, but at most of an equity; which equity, if Beck had acquired before him he must prevail; the rule in such cases being prior in tempore, potior in jure. That Beck was first in time is admitted; but it was objected in the argument, that it no where appears, that his deed was recorded; and that being a deed of trust, it cannot take effect, as to a subsequent purchaser without notice, except from the time of such recording. But I think that upon this record we are bound to take this as a recorded deed. The parties on both sides have so treated it; and the fact is in no shape put in issue. There is evidence also, that it was recorded; and that all parties knew, and never meant to question, the fact that it was recorded. Nor was there any defence for Adams, so natural or ready as to have stated in his answer, that the deed had never been recorded, if the fact had been so; but no such thing is done. Under these circumstances, I feel no doubt, that we must take this as a recorded deed; and that the plaintiff has the best right to call for the legal title, so far as is necessary to the satisfaction of his claim.

*Tucker P.

The legal title to the land conveyed by the deed of trust, in this case, is in Head. There are two antagonizing claimants, each insisting on his preferable right to call for the legal title. The first is Beck, who claims by deed of trust under John and William De Baptist: the other is Adams, who claims also under John and William De Baptist, but likewise sustains his right by claiming under Benjamin. Det us then contrast his rights with those of Beck, under both aspects of his title.

1. Supposing Adams to derive his right from John and William: in this aspect, he has but an equity posterior to that of Beck, to which it must yield, unless he can shew himself a purchaser without notice. This he cannot do, if the deed of trust under which Beck claims, was duly recorded. Whether it was or not, has not been put in issue; and, perhaps, we ought to take for granted, that there was no just objection to it on that score; but it will be safest, in sending the cause back, to leave that matter open to inquiry. If the deed was duly recorded before Adams’s purchase, I am clearly of opinion, that it takes precedence of Adams’s title, so far as that title is claimed under John and William De Baptist-

2. Supposing Adams to derive his title from Benjamin De Baptist, let us compare the conflicting rights of himself and Beck to call for the legal title. Has Benjamin De Baptist, or Adams as claiming under him, any right whatsoever to call for the title from Head, even if Beck’s claim were out of the case? I think not. Eor, 1. there is now no contract between Benjamin and Head. There was a contract at first, and a contract by which Head agreed to convey him the lot in question. But the parties had a right to abandon, waive or rescind that contract; and that abandonment, w'aiver or rescission, might be such as to absolve the vendor from it, and to exclude the vendee from a right to a specific performance. Has the vendee Benjamin De Baptist, by his acts in this case, so absolved the vendor? Can he under the circumstances, demand a specific execution by *a conveyance to himself or to those claiming under him? He cannot; for it is proved, that in the fall after the contract, Benjamin called on him to transfer the contract to John and William, and it was agreed that they should have the contract, and build the house, which he had engaged to build. An in-dorsement was accordingly made on the contract, with the assent of Benjamin, though he did not sign it, and it was after-wards read to John and William, who assented to it, though they did not sign it. Yet they went on to do the work; they went on to borrow money to complete the building ; they went on to fulfil the contract. On what ground, then, can Benjamin expect the specific performance of the contract, expressly waived and rescinded by himself, and entered into with his consent by Head with his two brothers. Has he paid any purchase mo.ney? Has he given any consideration to entitle him to a conveyance? Has he fulfilled the contract on his part, so as to entitle him to demand performance from Head? By no means. He has never paid one cent; he has never given any consideration ; he has never moved one step towards performance.

But suppose a specific performance decreed in his favor or in favor of his vendee: how will the matter stand with Head and John and William De Baptist? As the lot will not go to pay John and William for their work, they must either go unpaid, or they must look to Head, and Head must pay them. But as they entered upon the work, upon the faith of the arrangement made with Head with Benjamin’s assent and concurrence, they must not go unpaid, while Benjamin gets the lot for nothing. If Head cannot convey them the. lot, he must pay them their money. Then, how will he stand? He will have conveyed away his lot to Benjamin for nothing, and paid the full value of his building to John and William, who realljr erected it. Can this be tolerated? Shall Benjamin be permitted to waive the contract in behalf of his brothers, — to draw Head thereby into an engagement with them, and then to recant, reassert his right, get the property for nothing, and forqe Head to pay them for their labour? *It is impossible. Benjamin, therefore, could have no title to specific performance; and Adams stands but in his shoes.

On the other hand, Benjamin having assented to turn the contract over to his brothers, and Head and the brothers assenting thereto, they became entitled to a conveyance from Head upon fulfilling the contract on their part. This equitable right they conveyed to a trustee to secure to Beck the 500 dollars borrowed of him, it seems, to enable them to comply with their bargain. This sum they must repay to Beck, and the lot is liable for that repayment.

I am, therefore, of opinion to reverse the decree and send the cause back for further proceedings, with instructions that Beck’s deed of trust shall have preference over Adams, unless it should appear that the deed of trust was not duly recorded.

CABELL and BROOKE, J., concurred in the opinion of the president, and a decree was entered accordingly.  