
    
      Newman v. Chapman.
    December, 1823.
    1. Mortgage— Unrecorded — Purchaser with Notice— Effect on. — A subsequent purchaser will be affected with notice of a prior mortgage, although not recorded, if he has actual notice of the existence of such mortgage; and the fact of notice may be inferred from circumstances, as well as proved by direct evidence.
    2. Lis Pendens — On What Doctrine Rests. —'p’le doctrine of lis pendens does not rest upon the presumption of notice, but upon reasons of public policy; ana, in cases in which it operates, applies where there is nopossibility that the party should have notice of the pendency of the suit.
    3. Mortgage — Suit to Foreclose — Effect on Purchaser without Notice. — But, a subsequent purchaser, for valuable consideration, without actual notice, is not affected by a suit depending to foreclose a mortgage, not duly recorded.
    4. Lis Pendens — Rules Governing. — As to the rules which govern a lis pendens, see Judge Green’s opinion in this case.
    5. Power of Attorney — How Proved. — A power of attorney to sell lands, does not require, as between the parties, any particular mode of attestation: but may be proved in the same way that any other fact is proved. See Judge Green’s opinion.
    
      6. Mortgages — Suit to Foreclose — Parties  — The as-signee of a mortgage may maintain a suit-to foreclose, without making his assignor a party, if the legal title has been conveyed to him.
    7. Equity Jurisdiction. — A Court of Equity has always jurisdiction to carry its own decrees into
    8. Mortgages — Adverse Possession by Mortgagor. —Neither a mortgagor nor his assignee can hold adverse possession to the mortgagee, unless the assignee had taken a conveyance without notice. Otherwise, they are mere tenants at will.
    9. Commissioner in Chancery — Account of Rents and Profits. — An account of rents and profits may be taken by a commissioner, as well as be ascertained by a j ury; and the former is the most usual course.
    Appeal from the Chancery Court of Fredericksburg.
    George Chapman, jun. filed his bill stating, that a certain John Armistead of the county of Caroline, died in 1788, leaving a. large estate in lands, negroes, and. other property, which he devised to his children: that, his son William Armistead received the portion allotted to him, and gave a mortgage upon his land; which mortgage was afterwards assigned to a certain Jesse Simms: that the said Simms brought a suit in the Chancery Court of Richmond, to foreclose the said mortgage, and obtained a decree, by virtue of which the land was duly sold; the said Simms became the purchaser, and the Court confirmed the sale; whereby, he became the lawful proprietor in fee, of the said land and appurtenances, so far as the title of the said William Armistead was concerned; and the said *Simms was entitled to be put in possession of the same, subject only to the claims of such persons as should have right derived _ from any other person than the said William, or derived from him prior to the said mortgage or suit in Chancery to foreclose, as aforesaid: that the sale and conveyance of the commissioners was made on the 13th of July, 1804, and on the 13th of August in the same year the said Jesse Simms conveyed the said tract of land with its appurtenances to the complainant, in consideration of $11,400, which the complainant had previously paid to the said Jesse Simms, he not supposing that any dispute could be raised concerning a title, acquired and confirmed by the authority of the Court of'Chancery; to which he is_ now obliged to apply for its further aid to effectuate its own decree: that a part of the said land, viz: about 593 acres, is in possession of Thomas Newman; another part consisting of about acres is in possession of Richard Newman; and the residue is still in possession of the said William Armistead: that, Thomas and Richard Newman have no other title or claim to the said laud, except that derived from the said William Armistead, subsequent to the institution of the said suit of Jesse Simms, and while it was pending in the said Superior Court of Chancery: that the said William Armistead has been in the receipt of the profits of the lands in his possession, by which he has principally maintained his family, and has rendered no account thereof to the complainant: that the rents and profits of the portions of land in possession of the said Thomas and Richard Newman, have been received by them, in like manner, and no account rendered to the complainant: that all these persons refuse to deliver possession to the complainant of the said lands, and also refuse to account for the profits, according to their respective receipts and enjoyments: that no wi'it of habere facias pos-sessionem was issued from the said Superior Court; and the said Jesse Simms is dead, insolvent, and has no representative ■ known to the complainant: that, in ■ a case so Complicated, the complainant is advised to apply to the Court of Chancery, to carry into effect its own decree, in such manner as shall be consistent with the just rights of all persons who do not claim title from or under the said William Armistead, since the pendency of the said suit of the said Jesse Simms, whose bill was filed on the 12th day of May, 1797; but, with regard to the said William, the complainant* is advised that the said decree and proceedings of sale are final and conclusive^ He therefore prays, that the said Thomas and Richard Newman, and William Armistead, may be made defendants to this bill; that the decree aforesaid may be carried into effect, in favor of the complainant, against the said William Armistead, and all persons claiming under him, since the 12th day of May, in the year 1797, &c.
    Thomas Newman answered, that he had purchased of William Armistead, at different times, between the years 1793 and 1797, about 326 acres of land, out of the tract in the bill .mentioned; that the deeds will fully shew, at what time the purchases of the said land were made, except as to 47 acres, which were purchased in October, 1793; but, that the defendant did not get a conveyance from the said William Ar-mistead, until the month of July, 1797, at or about which time he purchased a further quantity of 101 acres, and both purchases were included in the same deed; that the defendant never knew any thing of the existence of the suit in Chancery for the sale of the lands in the bill mentioned, until long after he had completed his purchases of the aforesaid lands of William Armistead; nor had he ever seen any thing of the mortgage in the bill mentioned; nor did he know that any such mortgage existed, until he had completed those purchases and obtained his deeds; that the defendant also purchased of John B. Armistead, who had, before that time, purchased of William Armistead, about 513 acres of the same tract *of land, on or about the month of April or May, 1800, but did not get a conveyance for the same, until the month of April, 1801; that at the sale by the commissioners, the defendant attended with his deeds, and forbade the sale, as it would be illegal, and the title was in him. He therefore charges, that the complainant, before he purchased of Simms, was fully apprised of the title of the defendant.
    ■ Richard Newman “stated in his answer, that, as to the transactions between William Armistead and Abraham Morehouse, and the mortgage of land to him by .the said Armistead, he had heard nothing, until several years after he had purchased of William Armistead 163 acres of land, at 40 shillings per acre, and had the deed for the same recorded in the County Court of Prince William, which record was made in October, 1793; and, when he did hear that such a mortgage was in existence, he ■ also heard that it had not been recorded in due time to give it validity against the claim of a third person. He, therefore, hopes, that his title to the lands purchased of William Armistead, may not be affected by any decision relative to the said mortgage, &c.
    The deed of mortgage from William Ar-mistead and wife to Abraham Morehouse, was dated on the 3rd day of December, in the year 1794; which mortgage was assigned by David Allison, as attorney for the said Morehouse, to the said Simms, by virtue of a power of attorney, which was attested by only two witnesses.
    A deed from William Armistead and Nancy, his wife, and John B. Armistead to Thomas Newman, conveying 151 acres, is dated on the 11th day of September, 1797.
    A deed from William Armistead to Thomas Newman, dated the 26th day of September, 1793, for 175 acres.
    The bill to foreclose, brought by Jesse Simms against William Armistead, was filed on the 12th day of May, 1797.
    *The deed made by the commissioners for the sale of the land, under a decree of the Court, to Jesse Simms, is dated on the 13th day of July, 1804. .
    The deed from Jesse Simms to George Chapman, the plaintiff, conveying the tract of land on which William Armistead then lived, containing 1140 acres, more or less, being the same that the said Armistead conveyed to Abraham Morehouse, by deed of mortgage, dated the 3rd of December, 1794, and by the said Morehouse assigned to the said Jesse Simms.
    The mortgage from Armistead to More-house was not recorded within the time prescribed by law.
    The deed from William Armistead to Richard Newman, conveying 163 acres, fe dated the 37th day of September, 1793.
    
      William Armistead never answered the bill.
    The Chancellor decreed, that William Armistead and Thomas Newman should severally deliver up to the plaintiff, possession of all the lands held by them, mentioned in the deed of mortgage between Armistead and Morehouse, except 175 acres described in the deed of the 36th of September, 1793, between the said Armis-tead and Thomas Newman; and, that one of the commissioners of the Court should make up an account of the rents and profits of the lands so directed to be given up, from the 9th day of August, 1804.
    Thomas Newman appealed to this Court.
    Stanard, for the appellant.
    The question is, whether the mortgage to Morehouse was valid against Thomas Newman, the purchaser from William Ar-mistead? I contend that it is void; because, whatever notice Newman may have received of the existence of the mortgage, if it was not recorded, he might have purchased with impunity. This doctrine is derived from a just construction of the act of Assembly, relative to Conveyances. The act in the Revised Code, p. 157, § 4, (old edition,) declares, that all 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.” In this respect, it differs from the first section of the same act, which declares, that, as to the conveyances therein mentioned, such conveyances shall be void against subsequent purchasers, &c. not having notice thereof, &c. The omission of this last expression, in the 4th clause above mentioned, clearly indicate the intention of the Legislature, that no mortgage should be good against a subsequent purchaser, unless it is duly recorded.
    But, if notice of a previous conveyance will affect a subsequent purchaser, it must be notice direct and personal, not implied. Lord Redesdale, in the case of Underwood v. Lord Courtown, 3 Sch. & Lefr. 66, gives a definition of constructive notice, in conformity with these ideas. A lis pen-dens is not a sufficient notice. The suit to foreclose was brought by Simms against Armistead. Morehouse was not a party. It does not, therefore, bind upon the rights of Morehouse, and. consequently, cannot bind the rights of Newman. This defect could not be cured by an amendment of the bill; for, a Court of Equity will not allow a party to amend his bill, to the injury of a fair purchaser. Sorrell v. Williams, 3 P. Will. 483. But, it was not a lis pendens so as" to affect Newman, for another reason. He purchased a part of the land in 1793. A lis pendens does not exist until the subpoena is served. lVern. 318, Anon.; Sugd. 536. The first process was not executed until 1797.
    But, this is a case for a Court of Law, and not a Court of Equity. Although the rights of the appellee are derived under the decree of a Court of Equity, yet he is only a purchaser from a purchaser under that decree. The proceedings in equity are no longer in fieri. They only make a part of the muniments of title.
    *Another objection is, that the deed under which the plaintiff claims, passed no title, as the property was then in the adverse possession of Newman. This principle is established by the cases of Tabb v. Baird, 3 Call, 475; Hall v. Hall, 3 Call, 488; and Clay v. White, 1 Munf. 163.
    There is error also in the decree, in requiring an account of rents and profits to be taken by a commissioner, instead of referring that subject to a jury.
    Wickham, for the appellee.
    As to Mr. Stanard’s position, that no notice will affect a subsequent purchaser, if the deed is not recorded; the 1st and 4th section of the act are to be taken together, as being in pari materia, and applying, in all points, to the several particulars contained in each. The consequences of notice, therefore, will be equally as applicable to the 4th as to the 1st section. But, Newman does not alledge that he has paid the purchase money. His deed, too, was not duly recorded; because, one of the subscribing witnesses proved it after the eight months had expired. The subpoena was duly executed, before September, 1797, when Newman made his purchase. It was not necessary to' make Morehouse a party; no decree could be obtained against him. As to jurisdiction, it was proper for Chapman to come into a Court of Equity, as a Court of Law might not pay a proper respect to a lis pendens in equity. There is no plea to the jurisdiction. This suit, too, was only for the purpose of enforcing a previous decree of the Court of Chancery; a power which every Court must possess.
    The objection to Chapman’s want of title is without foundation, because he was invested with Morehouse’s legal estate; and Armistead, and those deriving under him, were mere tenants at will.
    It is usual and proper for a commissioner to make up an account of rents and profits.
    *December 6.
    
      
      Judge Oaiuslt, absent from indisposition.
    
    
      
       Mortgages. — See monographic note on “Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197.
    
    
      
       Conveyance Unrecorded — Purchase without Notice-Effect on. — See principal case cited with approval in Roanes v. Archer, 4 Leigh 562.
      Notice — Inferred from Circumstances. — In Farley v. Bateman, 10 W. Va. 540, 542, 22 S. E. Rep. 72, it was held that the fact that a subsequent purchaser had notice of a prior undocketed judgment may be inferred from circumstances, as well as proved by direct evidence. In delivering the opinion of the court, Judge Dent said: “The question presented in this case is whether the defendant Mann was a purchaser for valuable consideration without notice of plaintiffs’ undocketed judgment. The fact of notice may be inferred from circumstances, as well as proved by direct evidence; and where the facts and circumstances are such as to raise a presumption of notice, the burden of proof is shifted, and it devolves upon the defendant purchaser to prove want of notice. Newman v. Chapman, 2 Rand. ( Va.) 93.” To the same effect, Newman v. Chapman is cited in Grobe v. Roup, 46 Va. 488, 33 S. E. Rep. 251.
    
    
      
       Lls Pendens. — See monographic note on “Lis Pen-dens” appended to Stout v. Vause, 1 Rob. 169. Newman v. Chairman is cited asa leading case on the subject of lie pendens in Osborn v. Glasscock, 39 W. Va. 760, 20 S. E. Rep. 706.
    
    
      
       Same — On What the Doctrine Rests. — The doctrine of notice of pending suit rests upon considerations of public policy, and not on the presumption of notice. M’Claskey v. Barr, 48 Fed. Rep. 133, citing the principal case.
      The doctrine of Us pendens does not depend on the presumption of notice but upon reasons of public policy; and, where it operates, applies, although there was no possibility of notice of the suit. Carrington v. Didier, 8 Gratt. 265.
      The rule of Us pendens is founded upon its necessity to give effect to the judgments and proceedings of a court of justice; for. without such a rul%, they would be rendered abortive, where the recovery of specific property is the obj ect. Osborn v. Glasscock, 39 W. Va. 760, 20 S. E. Rep. 706. To the same effect the principal case is cited in Briscoe v. Ashby, 24 Gratt. 471.
      Same — To What the Doctrine Applies. — The doctrine of Us pendens, however necessary, is harsh in its effect upon bona fide purchasers, and has always been confined in its operation to the extent of the policy, on which it was founded; that is, to give full effect to the judgment or decree, which might be rendered in the suit depending at the time of the purchase, (the Us pendens) ; and it applies only to proceedings directly relating to the thing or property in question. White v. Perry, 14 W. Va. 76, citing principal case as authority.
      Same — Notice of What. — A Us pendens gives notice only of the facts contained in the record of the suit to which it relates, as it is when the party affected purchases, and only for the purpose of that suit, and for the benefit of parties to that suit. Therefore other creditors cannot have its benefits in other suits. Stout v. Philippi M. & M. Co., 41 W. Va. 346, 23 S. E. Rep. 574, citing the principal case as authority.
      Same — When It Exists. — By the common law, the lis pendens existed from the first moment of the day the writ issued and bore teste, and of necessity the court of chancery adopted the general doctrine of Ms pendens', but relaxed in some degree the severity of the common-law rule and held that no lis pendens existed until the service of the subpoena and the bill filed. White v. Perry, 14 W. Va. 76, citing the principal case as authority.
      The lis pendens begins, in chancery, when the summons is served, if a bill'.be subsequently filed; and it terminates with the final decree in the cause. Bruff v. Thompson, 31 W. Va. 32, 6 S. E. Rep. 361, citing the principal case.
      But a subpoena served is not a sufficient Us pen-dens, unless a bill be filed; but when the bill is filed, the Us pendens begins from or relates back to the service of the subpoena. Harmon v. Byram, 11 W. Va. 621, citing principal case.
      In an action at law, the suit dates from the writ issued. U. S. Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. Rep. 343; Geiser Mfg. Co. v. Chewning, 52 W. Va. 523, 44 S. E. Rep. 197, both cases citing principal
    
    
      
       Mortgage — Suit to Foreclose — Effect on Purchaser without Notice. — The pendency of a suit to set up an unrecorded deed which is required by law to be recorded will not affect a subsequent purchaser for valuable consideration without actual notice. Dabney v. Kennedy. 7 Gratt. 326, citing Newman v. Chapman as so deciding.
    
    
      
      Lis Pendens — Rules Governing. — In French v. Successors of the Loyal Co., 5 Leigh. 681, Judge Tucker said: "While there is no principle in the law more essential to the administration of j ustice, than the doctrine of the Us pendens, when properly understood, there is none which is attended with greater occasional hardship; nor would any be more pernicious, if extended beyond its proper limits. These limits are so well defined, and the principle of the Ms pendens so well laid down by Judge Green in Newman v. Chapman, 2 Rand. 102, 103, that I may be excused for transcribing” a passage therefrom.
      On the subject of Ms paraderas, the principal case is also cited in French v. Successors of Loyal Co., 5 Leigh, 664: Easley v. Barksdale, 75 Va. 280; Hurn v. Keller, 79 Va. 418.
    
    
      
      Chancery Practice — Suit by Assignee — Parties.— To the point that there are cases in which the assignor is not a necessary party to a bill filed by an assignee, the principal case is cited in James River & K. Co. v. Littlejohn, 18 Gratt. 82.
      See further, foot-note to Corbin v. Emmerson, 10 Leigh, 663; monographic mofe on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409. See principal case cited In Daily v. Warren, 80 Va. 517.
    
    
      
      Equity Jurisdiction. — It is well established that a court of equity always has jurisdiction to carry Into effect its own decrees, and is not functus officio until the decree is executed by the delivery of possession. Trimble v. Patton, 5 W. Va. 435; Patton v. Rucker, 15 W. Va. 552, both citing the principal case.
    
    
      
       Mortgage — Adverse Possession by Mortgagor.— The possession of the grantor in a deed of trust after the execution of the deed is not. adverse to-the title of the trustee, but only as'his tenant at will or suffrance. The trustee may eject him without notice; or without ejecting him, may convey the trust subject to a purchaser, whose tenant at will' or suffrance the grantor will then become, and by whom he may in like manner, be ejected without notice. Pitzer v. Burns, 7 W. Va. 74, quoting from Creigh v. Henson, 10 Gratt. 231, and citing the principal case to the point.
      See principal case also cited in Pownal v. Taylor, 10 Leigh, 182. See further, monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
    
      
       Commissioner in Chancery — Account of Rents and Profits. — See monographic note on "Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376. The principal case is cited in Kraker v. Shields, 20 Gratt. 394.
    
    
      
      There were other defendants, whom it is not important to mention.- Note in Original Edition.
    
    
      
       TtrDGE CABEni. absent from Indisposition,
    
   JUDGE GREEN,

delivered the following opinion:

The object of the statute requiring mortgages to be recorded, and declaring that, if not recorded as the statute prescribes, they shall be void as to creditors and subsequent purchasers, was to prevent, by affording the means of ascertaining the existence of the incumbrance, the frauds which might otherwise be practised by the mortgagor and mortgagee, on creditors and subsequent purchasers, by concealing it. If a purchaser has actual notice otherwise, of the existence of the mortgage, he is not only not prejudiced by the failure to record it, but is himself guilty of a fraud in attempting to avail himself of the letter of the statute, to the prejudice of another who has a just claim against the property. The statute, indeed, vests in the subsequent purchaser, in that case, the legal title; yet, although the legal title of the mortgagee is divested by the subsequent conveyance, his equitable right to subject the property to the payment of the debt, remains; not only because the mortgage is good between the parties; but, even if void as a conveyance between the parties, it would still be evidence of an agreement between them, and a Court of Equity will give effect to the equity of the mortgagee, by holding the subsequent purchaser to be a trustee. Upon these principles, the Court of Chancery in England has always relieved a prior purchaser, whose deed has pot been registered, against a subsequent purchaser with notice.

I had at one time great doubts, whether the principle of those decisions did not apply to the case of a lis pendens. Lord Hardwicke, in the leading case of Le Neve v. Le Neve, 3 Atk 646, declared, that the statutes of registry in England (which, as to the matter under consideration, are the same in effect as our statute,) only vested the legal title in the subsequent purchaser, and left the case “open to all equity;” and, in that case, he relieved against a subsequent *purchaser, upon constructive, and not actual notice, the notice being to an agent of the purchaser. A lis pendens has always been spoken of in the English Court of Chancery, as a constructive notice to all the world; as all men are bound and presumed to take notice of the proceedings of a Court of Justice. If these propositions were universally true, it would seem to follow, that a lite pendente purchaser was a purchaser with notice, and would take the property subject to the claims of the plaintiff in the suit, as the defendant held it. In all questions of fact, the existence of the matter in question may be proved by direct evidence, or by the proof of other facts, from which it may justly be inferred, that the fact in question does exist. A fact thus proved by circumstantial evidence, is taken to exist for all purposes, as if it were proved by direct evidence. I cannot, therefore, feel the force of the observation frequently thrown out in modern cases, that a notice to affect a subsequent purchaser, after an unregistered deed, must be actual, and such as to affect his conscience, and not constructive. A notice, proved by circumstances to exist, affects the conscience of the party as much as if proved by direct evidence. In all other cases, a purchaser of a legal estate, with notice of a subsisting equity, is bound by constructive, as well as by actual, notice; and that, because his conscience is affected, and he is guilty of a fraud. Without fraud on his part, his legal title ought to prevail. I see no reason why a difference should be made, between the case of a purchaser after an unregistered deed, and a purchaser of a legal title, subject to any other equity, as to the proof of the notice which ought to be held to bind him. This distinction between an actual and constructive notice, in the case of a purchaser after an unregistered deed, seems to have proceeded from a doubt, whether the relief given in the early cases upon that subject, had not been in opposition to the spirit and policy, as well as the letter, of the statutes of registry.

*The rule, as to the effect of a lis pendens, is founded upon the necessity of such a rule, to give effect to the proceedings of Courts of Justice. Without it, the administration of justice might, in all cases, be frustrated by successive alien-ations of the property, which was the object of litigation, pending the suit, so that every judgment and decree would be rendered abortive, where the recovery of specific property was the object. This necessity is so obvious, that there was no occasion to resort to the presumption, that the purchaser really had, or by enquiry might have had, notice of the pendency of the suit, to justify the existence of the rule. In fact, it applied in cases in which there was a physical impossibility that the purchaser could know, with any possible diligence on his part, of the existence of the suit, unless all contracts were made in the office from which the writ issued, and on the last moment of the day. Eor, at common law, the writ was pending from the first moment of the day on which it was issued and bore teste; and a purchaser, on or after that day, held the property subject to the execution upon the judgment in that suit as the defendant would have held it, if no alienation had been made. The Court of Chancery adopted the rule, in analogy to the common law; but, relaxed, in some degree, the severity of the common law. For, no lis pendens existed until the service of the subpoena and bill filed; but, it existed from the service of the subpoena, althoúgh the bill were not filed until long after; so that a purchaser, after service of the subpoena and before the bill was filed, would, after the filing of the bill, be deemed to be a lite pendente purchaser, and as such, be bound by the proceedings in the suit, although the subpoena gave him no information as to the subject of the suit. A subpoena might be servéd the very day on which it was sued out, and there is an instance in the English books of a purchaser who purchased on the day that the subpoena was served, without actual notice, and who lost his purchase by force of this rule of law. This principle, however necessary, was harsh *in its effects upon bona fide purchasers, and was confined in its operation to' the extent of the policy on which it was founded; that is, to the giving full effect to the judgment or decree which might be rendered in the suit depending at the time o,f the purchase. As a proof of this, if the suit was not prosecuted with effect, as if a suit at law was discontinued, or the plaintiff suffered a non-suit, or if a suit in Chancery was dismissed for want of prosecution, or for any other cause not upon the merits, or if at law or in Chancery a suit abated; although, in all these cases, the plaintiff, or his proper representative might bring a new suit for the same cause, he must make the one who purchased pending the former suit, a party; and, in this new suit, such purchaser would not be at all affected by the pendency of the former suit, at the time of his purchase. In the case of an abatement, however, the original suit might be continued in Chancery, by revivor, or at law, in real actions, abated by the death of a party, by journies accounts, and the purchaser still be bound by the final judgment or decree. If a suit be brought against the heir, upon the obligation of his ancestor binding his heirs, and he alienates the land descended, pending the writ, upon a judgment in that suit, the lands in the hands of the purchaser would be liable to be extended, in satisfaction of the debt. But, if that suit were discontinued, abated, or the plaintiff suffered a non-suit, in a new action for the same cause, the purchaser would not be affected by the pendency of the former suit at the time of his purchase; and, if he could be reached at law, in equity it could only be, upon proof of actual notice and fraud. If a lis pendens was notice then, as a notice at or before the purchase would, in other. cases, bind the purchaser in any suit in equity, prosecuted at any time thereafter, to assert the right of which he had notice, would bind the purchaser, so ought the lis pendens to bind him in any subsequent suit prosecuted for the same cause; but it does not. Again; a bill of discovery, or to perpetuate the testimony of witnesses, ought, *if all persons were bound to take notice of what is going on in a Court of Justice, to' be a notice to all the world, as much as a bill for relief. * But, these are decided to be no notice to any purpose; a proof that the rule, as to the effect of a lis pendens, is one of mere policy, confined in its operation strictly to the purposes for which it was adopted; that is, to give effect to the judgments and decrees of Courts of Justice, and that it is not properly a notice to any purpose whatsoever. The English Judges and elementary writers have carelessly called it a notice, because, in one single case,'that of a suit prosecuted to decree or judgment, it had the same effect upon tlie interests of the purchaser, as a notice had, though for a different reason. But, the Courts have not, in any case, given it the real force and effect of a notice.

I think that the statute over-rules this principle of law, in the case of a lite pen-dente purchaser, after an unrecorded mortgage. The decisions in the cases of notice, are according to the policy and spirit of the statutes; since, in those cases, the purchaser has the very benefit which the law intended to provide for him, and he is chargeable with mala fides, in attempting to acquire that to which' he knows another has a just right. He cannot complain, that the mortgagee has done him an injury by his default in failing to record his mortgage, as the law requires. But, if the purchaser were held to be affected by the pendency of a suit, if he had not actual notice, he would suffer an injury by the default of the mortgagee, unless it were held to be his duty to enquire if any suit were depending when he had no reason to suspect that there was any defect in the title. I think, that to require him^ to look to any other source of information than that which the statute has provided for him, would be contrary to the spirit and policy, and letter of the statute.

It follows, that the decree is erroneous, as it respects the 1S1 acres conveyed to the appellant in September, 1797; but, as to the 513 acres, which the appellant states *in his answer that he purchased in 1800, he is not protected by the statute. He admits, that he came into the possession pendente lite. ITe does not deny notice of the mortgage, _ if that fact be material, upon the pleadings in this cause; and he does not shew that he was a purchaser, and that a conveyance was made to him. As to this, then, the decree ought to be affirmed, unless tlie other objections made at the bar ought to prevail. These are, that the suit was not so instituted as to attach on Morehouse’s title under the mortgage, he not being a party, and there being no evidence that his title was in the plaintiff in that suit; that a Court of Equity has no jurisdiction, as the plaintiff, if he has a right, has a legal remedy; that the deed under which the plaintiff claims, passed no title, as the property was then in the adverse possession of another; and, that the rents and profits should be ascertained by a jury, and not by a commissioner.

If the rule be, that a purchaser, pending the suit, is bound by the decree in the suit as the defendant is bound, then it is too late now to urge the first of these objections. It might, possibly, have been urged by Armistead, whilst the suit was depending. But,, failing to do so, he was bound by the decree, whether it were right or wrong. I think, however, that the objection could not have been relied on with effect, in the original suit. The power of attorney, by authorising the attorney to dispose of the mortgage, for and in the name of Morehouse, authorised him to convey the legal. title, and that was the effect of the deed to Simms. The power of attorney being attested by only two witnesses, was not, for that cause, defective. The law does not require any particular form, as to the attestation of a power of attorney to convey land: as, between the parties, such a power may be proved by any evidence, which would be sufficient to prove any other fact in a Court of Justice. A Court of Equity always has jurisdiction to carry into effect its own decrees. In this case, a bill for that purpose was necessary; as well, because ^another party, not appearing as a party on the record, had become interested, as on account of the death of Simms. The decree had never been executed. If there had been no change of the interest, and Simms had lived, the decree might have been executed, and Simms let into possession by the ordinary proceedings in the Court for that purpose. After the decree was so executed, if Simms, or his assignee, had been ousted or disturbed, he or his as-signee would have been bound to proceed at law. The Court of Chancery was not functus officio, until the decree was executed by the delivery of possession.

I do not think, that Armistead could hold a possession adverse to Morehouse or his assignee, and consequently the conveyances of Morehouse and Simms passed the title they professed to pass, unless the sale to Newman varied the case; but, that sale being made pending the suit, Newman could -no more hold an adversary possession, unless he had taken a conveyance without notice, than Armistead himself could. Armistead was a tenant at will, and so was Newman, standing in his place.

The account of rents and profits might as well be taken by a commissioner, as ascertained by a jury; and the former is the most usual course.

JUDGE CO ALTER.

I am of opinion, that the Chancellor erred in his decree, in directing the appellant to deliver possession of the tract of 151 acres, conveyed by William * Armistead to him. on the 11th of September, 1797, by the deed and release in the record, of that date.

The bill claims to set up a mortgage, executed by the aforesaid William Armis-tead, of anterior date to the above conveyance: but which was never recorded, purely on the ground, that at the time of the purchase by the appellant, there was a suit pending to foreclose the mortgage.

If the act of Assembly in regard to mortgages not recorded, and which was in force at the time this bill was filed, is to be construed in connection with the previous clause in relation to other conveyances, so as to transpose the words from the one to the other, in relation to notice, and thus to make the law precisely what it now is, under the act of 1819; let us en-quire how the appellee would have stood :_n a Court of Law, on a special verdict, finding simply the mortgage and subsequent conveyance, and a suit pending to foreclose the mortgage at the time of the conveyance?

The^ case for him would rest on an unrecorded mortgage against a subsequent conveyance, and which is expressly declared by the act to be void as to such subsequent purchaser, not having notice thereof. What sort of notice? Undoubtedly, such as would affect the conscience of the purchaser; otherwise,_ the act would be no safeguard to the innocent, as it was intended to be. A mere lis pendens is not such notice as that. This has been decided, as will be seen in a case mentioned in a note to the case of LeNeve v. Le-Neve; and, also, as 1 am told, in a late case which I have not examined, reported in 19 Vesey. A Court of Law could not substitute any other kind of notice for that contemplated by the act. But, if the party has ground for coming into equity, that Court, too, I presume, must follow the law.

But if, previous to the act of 1819, the mortgagee of an unrecorded mortgage stood, as against a subsequent purchaser, as he did in England under the registry acts, (and I incline to think he did,) then his only remedy was in ^equity; and there he can only prevail on the ground of fraud, or suehmiotice as would affect the conscience of th'e purchaser, and which was, therefore, considered a fraud; and it has been decided as aforesaid, and, I think, correctly, that a mere lis pendens did not affect the conscience.

Suppose, in this case, the appellant had not denied notice, no charge of notice being in the bill, but had simply answered, that he had purchased for value, and got his deed, exhibiting it with his answer, and had demurred to the residue of the bill. Could the appellee have succeeded? I apprehend not. Or, would not such an answer have been a full response to the bill, no fraud or notice being charged, and sufficient of itself to defeat the claim of the appellee? I am much inclined to think it would; and, therefore, had the appellant exhibited a deed from William Armistead to John B. Armistead, and from the latter to him for the 513 acres mentioned in the argument, although there is no denial of notice as to it, I should, as at present advised, have thought that the appellee could not have recovered that tract, without amending his bill, and putting the fact of notice or fraud in issue; so as to give the appellant an opportunity of answering thereto. It is, however, not necessary to decide this point, because the appellant does not shew himself to be a subsequent purchaser of that tract, and it is only against such that the mortgage is void.

Whether, as this is an interlocutory decree, he may hereafter be permitted to file those documents, if they exist, is not for me to know or anticipate. On the record, now before the Court, the decree must be reversed as to the 151 acres, and affirmed as to the residue.

JUDGE BROOKE, concurred: and a iec.ree was entered conformably to the foregoing principles. 
      
      The following' were the cases referred to by Judge Ghees, in the course of his opinion: Durbaine v. Knight, 1 Vern, 318; Preston v. Tubbin, Ibid. 286; 15 Vin. Abr. 128, pl. 2; Birch v. Wade. Ves. & Beam. 200; Murray v. Ballow, 1 Johns. Ch. Cas.; Litlleberry's Case. 5 Rep. 176; Cro. James, 340; 2 Eq. Ca. Abr. 482; Ib. 685 ; 3 Ves. 485; 1 Eq. Ca. Abr. 358; Bennet v. Batchelor, Ves. jun. 64; Habergham v. Vincent, Ibid. 68; 3 Atk. 243; Shannon v. Bradstreet, 1 Sch. and Lefr. 66; Brace v. Duchess of Marlborough, 2 P. W. 491; 2 Vent. 337; Brotherton v. Halt, 3 Vern. 574 ; 2 Eq. Ca. Abr. 594; Bac. Abr. tit. Fraud, letter C; Gooch’s Case, 5 Co. Rep. 80; 1 Fonb. Eq. 279; Curtis v. Perry, 6 Ves. 745; Davis v. Earl of Strathmore, 16 Ves. 419; Wyatt v. Barwell, 19 Ves. 439. —Note in Original Edition.
     