
    John Tillman vs. Jesse Cowand.
    The placing a deed upon record in a manner not authorized by law, is not a registration, and does not constitute notice to a purchaser.
    A deed of trust, executed in Tennessee, in 1838, upon property in this state, and proved by the two subscribing witnesses before the county court of Bedford county, Tennessee, to have been duly executed, and this probate certified by the clerk of that court, is not so acknowledged, and proved under the statutes then in force in this state, (Hatch. Code, 608, sec. 13,) as to be entitled to be placed of record in the county in this state, where the property is located ; and when so placed of record, does not constitute notice.
    Therefore, where the grantor in such a deed, after its record in this state, removed the slaves named in the deed, to Louisiana, and there sold them, and the purchaser brought them back to this state ; and there was no other proof of notice to the purchaser, than that which arose from the record of the deed in this state; held, that title of the purchaser would be good. Whether a different rule would prevail, had the rights of the parties accrued since the statute of 1841, (Hutch. Code, 617,) extending the provisions as to the persons out of the state, who could take acknowledgments, not decided.
    In error from the vice-chancery court, at Mississippi city; Hon. James M. Smiley, vice-chancellor.
    John Tillman, of Bedford county, Tennessee, filed his bill against Jesse Cowand, claiming certain slaves in possession of the latter in Hancock county, in this state, on the ground that Leonard C. Temple, on the 6th day of March, in the year 1838, in Bedford county, Tennessee, executed a deed of trust to him upon the slaves, then in Madison county in this state. A. copy of this'deed is exhibited with the bill. It is attested by E. J. Fireson and M. A. Long, and at the foot of it is the following certificate, viz:
    “ State of Tennessee, Bedford county court, March session, 1838. This day the due execution of the within deed from Leonard C. Temple to John Tillman, was duly proven in open court, by the oaths of E. J. Fireson and M. A. Long, subscribing witnesses thereto; whereupon the court admits the same to be certified.
    “In testimony whereof, I, William D. Orr, clerk of the court of Bedford county, in the state aforesaid, have herewith set my hand and affixed the seal of said* court at office, in Shelbyville, this 6th day of March, 1838, and of the American independence the 62d year.
    William D. ORR, Clerk.”
    This certificate was followed by that of W. Galbraith, the chairman of Bedford county court, to the official character and attestation of the clerk.
    The deed was filed for record in Madison county on the 28th of March, 1838.
    It was in proof that the slaves in controversy were taken by Temple first to Alabama, and afterwards to New Orleans, Louisiana, and were there, in February, 1840, sold by him to Cowand, who subsequently brought them to Hancock county, in this state.
    It is not deemed necessary to set out the other facts of the case.
    The vice-chancellor dismissed the bill, and the complainant appealed.
    
      John Henderson, for appellant.
    The ground of defence can only avail for one of two reasons, viz : either that the defendant in -fact has bought a good legal title in the slaves, or that he occupies the position of a purchaser for valuable consideration, without notice. Now, as to the first, we say, the trustee only has the legal title, and the real title. 5 How. (Miss.) R. 7426 lb. 143.
    The vendor of the trust has no property which is capable of seizure in execution. 4 S. & M. 153 ; Freem. Ch. R. 105.
    The vendor in trust, having no title, cannot certainly convey any title to his vendee. Ventress v. Smith, 10 Pet. S. C. 175, 176.
    
      Nor could the doctrine of a purchaser for valuable consideration apply in this case; because this principle has its sole predicate in conjunction with the registry laws. But the purchase here was of a tort feasor, beyond the jurisdiction of -our registry; and the removal of the trust property Was without permission of grantee. Bogará v. Gardley, 4 S. & M. 302; Stat. H. & H. 342, sec. 3.
    Hence the defendant here cannot invoke this statutory protection in this state, but by invoking the breach of statute by his vendor, which defeats his plea. Beside, the answer does not show or aver, enough for such defence, and this defence must always be proven. 10 Pet. U. S. R. 211. And because in avoidance must be proven. 6 How. (Miss.) R. 303.
    But all the principles of this case, in this aspect of it, are expressly decided in Hundley v. Mount, 8 S. &. M. 387 - 391. See also 1 S. & M. 66, 67; lb. 112 ; 13 Pet. R. 120, 121.
    
      Daniel Mayes, for appellee.
    Gowand was a bona fide purchaser, for valuable consideration, and without notice, and the deed of trust' not having been duly recorded, was void as to him. Hutch. Code, 605.
    It is conclusively shown by the record, 1. That the deed was executed after the passage of the statute. 2. That Cowand was a subsequent purchaser. 3. For valuable consideration. 4. Without notice.
    The deed of trust is therefore void as to him, unless before his purchase it was, 1. acknowledged; or 2. proved; 3. and lodged with the clerk of the county court of the proper county to be recorded; and all this to be done, 4. according to the provisions of that act.
    Looking then to the deed of trust, and the certificates indorsed on it, we find the whole question reduced to the inquiry, Was it proved according to law 7 for it was not acknowledged, and I admit that it was deposited with the clerk of the proper court, and by him recorded, but I say, without having been duly proved.
    The only evidence that it was at all proved is a certificate purporting to be by the clerk of the county court of Bedford county, Tenn.; that the deed was duly proved by the subscribing witnesses, and that the court ordered the same to be certified. Hence it is not necessary to notice any statutory provisions relative to proof before courts or officers either of this state or foreign countries. The law with respect to proof in a sister state, (Hutch, Code, 308, sec. 13,) authorizes the making such proof before, and the certificate by, 1. the chief justice of the United States; or, 2. an associate justice of the supreme court of the United States; or, 3. a district judge of the United States; or, 4. any judge or justice of the supreme, or superior court, of any state or territory of the Union.
    This statute does not apply, for it was neither proved before nor certified by any of the specified officers, and it is also inapplicable for the farther reason, that it only extends to deeds of conveyance of “lands, tenements, and hereditaments.”
    The act of January 27, 1841, Hutch Code, 641, is not applicable; for
    1. It was passed after the proof and recording, and even after Cowand’s purchase.
    2. It relates exclusively to deeds of land.
    3. It only authorizes the proof or acknowledgment before and certificate by, 1st. the judge of an inferior, or county court of record, or justice of the peace for the state or territory wherein such person or witness ma3>- be, and requires that the certificate made by the officer taking the acknowledgment be authenticated by the certificate of the clerk or register.
   Mr. Justice ClaytoN

delivered the opinion of the court.

One L. C. Temple executed a deed of trust in Tennessee, upon certain slaves in Madison county, in this state, to John Tillman. The deed was proven to have been duly executed, by the two subscribing witnesses, before the county court of Bedford county, Tennessee, and this probate was certified by the clerk. Th.e deed was recorded upon the production of this certificate in Madison county, in March, 1838, some twenty days after the execution of the instrument.

The slaves were taken to New Orleans by Temple, and in February, 1840, were there purchased by the defendant, and subsequently brought to Hancock county, in this state. This suit is brought for their recovery. The defendant insists that he is a bona fide purchaser for valuable consideration without notice.

The only notice attempted to be shown, is that which arises from the recording of the deed of trust. It is insisted for the defendant, that this registration was made without the probate required by the statute, and that it is therefore a nullity.

The putting a deed upon record, in a manner not authorized by law, is not a registration, and does not constitute notice to a purchaser. Thompson v. Thompson, 2 How. 745. The question then arises as to the legality of the registration.

The statute directs, “ that all deeds of trust and mortgages whatsoever shall be void as to all creditors and subsequent purchasers for valuable consideration without notice, unless- they shall be acknowledged or proved, and lodged with the clerk of the county court of the proper county, to be recorded according to the directions of this act.” Hutch. Code, 605, sec. 3. The only statute in this state, in force at the time of these transactions, in regard to the registry of deedg executed by persons residing out of the state, for property within it, authorizes them to be recorded upon acknowledgment or proof, “ made before and certified by the chief justice of the United States, any judge of the supreme court of the United States, or district judge of the same, or'any judge or justice of the supreme or superior court of any state or territory in the Union.” Hutch. 608, sec. 13. The authority was subsequently extended to other persons, but that cannot influence the decision in this case. Hutch. 617. The probate of this deed was not made before any one authorized by the statute to take it, as the law, prior to 1841, did not embrace .county courts. The effect of the statute of 1841 is laid out of view, all the rights having accrued before its passage.

It follows that the deed was not recorded, according to the directions of the statute, and is void as to a purchaser for valuable consideration without notice. This suit cannot, therefore, be sustained.

The decision of this point disposes of the whole case, and makes it unnecessary to consider any other.

The decree dismissing the bill is affirmed.  