Lessee of Correy against Caxton and Rees

[Chambersburg, Monday, September 23, 1811.] Lessee of Correy against Caxton and Rees. The assignment, or bargain and sale, oí a warrant and survey, is within the recording act of 18th March 1775, and therefore, if not recorded within six months, is void against a subsequent purchaser without notice; but if the first bargainee or purchaser obtains a patent upon the warrant and survey, and then the bargainor sells and conveys them over again, the non-registry of the assignment is immaterial, because the patent is notice, and the second purchaser should have recurred to the land office before he bought the warrant and survey. This was an ejectment in the Circuit Court of Cumberland, in which the jury found the following special verdict: “ The jury find that a warrant issued from the land office of Pennsylvania, directed to the surveyor general, to survey for John Hoge 200 acres of land in Cumberland county, dated 6th April 1785. That a survey was made in pursuance of that warrant by Samuel Lyon deputy surveyor of Cumberland county on the 3d day of June 1785, which contained 228 acres 96 perches and allowance, which is the same land for which this ejectment is instituted ; and that the same survey was duly returned into the office of the surveyor general. That on the 12th day of May 1790, John Hoge by his deed poll did grant, bargain, sell and convey, for the consideration of twenty-five pounds, all his right, title, interest, claim and demand of in and to the said tract of land so surveyed and returned, to Robert Correy, merchant of the city of Philadelphia in fee. (The lessor of the plaintiff.) That on the 17th of February 1792 a certain Casper Eckert entered a caveat in the land office of Pennsylvania against granting a patent to John Hoge for the laud so surveyed and returned. That on the 25th March 1797, the board of property on the application of Robert Correy as assignee of John Hoge, did order that Robert ‘^Correy should give notice in one of the newspapers of the city of Philadelphia for six mouths, for the heirs of the said Eckert to appear, and show cause why a patent of confirmation should not issue to the said Robert Correy, and did appoint the then first Monday in December next, for the said parties to be heard on that dispute. That a copy of the same order was published by the said Robert Correy in the newspaper published then by Hall and Sellers in the city of Philadelphia, in obedience to the said order. That on the 17th day of July 1798, a patent issued from the said commonwealth under the state seal, reciting the warrant, survey, and deed poll above mentioned, to the said Robert Correy, for the tract of land contained in the said survey, which said patent was duly enrolled in the rolls’ office of Pennsylvania on the 26th of July 1798, which is the same land mentioned in the declaration of ejectment in this cause. That the defendants were in possession of the said tract of land at the time of this ejectment being instituted. The jury also find that on the 8th day of August 1800, Jeremiah Rees one of the defendants, did write a letter addressed to Robert Correy the plaintiff, and did cause the same to be delivered, in hcec verba” “August 8th 1800. Sir, I have been informed by Henry Fulton of Harrisburg, that he was in company with you in Philadelphia, and you told him that you had bought a tract of land of John Hoge adjoining the river Susquehanna, about 226 acres, and that you showed him a deed out of the office for said land. The said Hoge has sold 223 acres of land to me on the first of February last, and has given me a deed for said land, him and his wife. Now if he has sold this land to you, and then come and sold it to me, he is a bad man. Now I would be glad you would send me the truth about it as soon as possible you can, and to whom your lands join, for I am uneasy about it. I have paid him for the land every farthing, and in case the land is yours I expect you will give me the first offer of it. The land lies on the North mountain, and is fit for nothing but for timber.” Jeremiah Rees. “The jury further find that, the said deed poll from John Hoge to Robert Correy has never been recorded, in the office for recording deeds in and for the county of Cumberland; and that the said John Hoge *and Elsey his wife on the 18th day of February 1800, conveyed the same tract to Jeremiah Rees, under whom the defendant John Claxton claims and comes in possession, and the defendant Rees was substituted on the death of the said Jeremiah Rees as his executor; and that on the same 18th day of February the said deed was acknowledged before a justice of the peace of Cumberland county, in due form of law, and on the 11th of October 1800 was duly recorded in the office for recording of deeds in and for the county of Cumberland. But whether the lessor of the plaintiff is entitled to recover the premises, they are ignorant, and pray the opinion of the court thereon. And if, &c.” A judgment was entered for the plaintiff upon this verdict ; and the defendants appealed to this Court. Duncan for the appellants, contended that the deed poll of the 12th May 1790 from Hoge to Correy, was void, in consequence of its not being recorded within six months, as against Jeremiah Rees who was a subsequent bona fide purchaser without notice. There is no ground for a distinction between an assignment or bargain and sale of a warrant and survey, and the conveyance of any other estate or interest. A warrant and survey with consideration passed are an established legal right; Sims’s Lessee v. Irvine, 3 Dall. 425, 457 ; and whether they are or not, all deeds or conveyances whereby lands may be any way affected in law or equity, come within the express provisions of the act of 18th March 1775, and are void against a subsequent purchaser for a valuable consideration, unless recorded before the proving and recording of the deed under which such subsequent purchaser shall claim. 1 St. Laws 703. Such a deed is clearly within the intent and meaning of the act, because it is within the mischief. It has been in effect a pocket deed, and is now brought out to defeat one who has paid his money and recorded his deed without notice. The enrolment of the patent is not sufficient, because in the first place the title is not derived from the patent, which is a confirmation only, but from the warrant, survey, and deed poll from the warrantee; and in the next place, because it is perfectly settled that the registering of an assignment in which a' lease is recited, is not a cure for *the non-registry of the lease. The registry should contain a regular chain of title. Sugden 463; Honeycomb v. Waldron, 2 Stra. 1064; Scrafton v. Quincy, 2 Ves. 413. The deed under which the party claims should be recorded; no other registry is constructive notice. The act recognizes no registry except that which is made in the proper county, after proof by the witnesses, or acknowledgment by the parties ; and therefore if the patent had recited the deed poll at full length, it would have been no registry of it. Moore’s Executor v. The Auditor, 3 Hen. & Mun. 237 ; Gleeson’s Heirs v. Scott, 3 Hen. & Mun. 285; Lessee of Heister v. Fortner, 2 Binn. 40; Hodgson v. Butt, 3 Cran. 155 ; Sugd. 461. There being no constructive notice here, nothing but actual notice, what is called by Lord Hardwicke dear undoubted notice, or fraud, will postpone the purchaser who has first recorded his deed. Hine v. Dodd, 2 Atk. 276 ; 3 Mass. Rep. 581; Pidge v. Tyler, 4 Mass. Rep. 541. Fraud is out of the question. Notice is not found by the special verdict, and as it is a fact, it cannot be supplied by the court. The advertisement in the newspaper, is not brought home to the defendants. From the letter of Rees it is evident that he purchased ignorantly; and there was nothing in the papers that should have led him to look for the patent’for further information. There is nothing in the verdict which shows him to be a mala fide purchaser, which is the gi’ound the court must go upon if they support Correy’s deed; Le Neve v. Le Neve, 3 Atk. 243 ; for if bona fide, Correy’s deed is absolutely void against him. If the patent revives and establishes it, then the recording act is of no validity until a patent is obtained, and whatever may have been the previous frauds of the grantor, the patent sanctifies them. Watts for the plaintiff answered, that the record of Correy’s patent was notice to all the ■world; and as the defendant purchased subsequent to the patent, the court must hold that he purchased with full legal notice of the existence of both a legal and equitable title in Correy. The defendants’ argument is, that if after purchase money paid and a patent '^obtained, the original warrantee shall convey the land a second time, the second purchaser will prevail unless every deed poll in the chain is on record. Such a decision would shake half the titles in Pennsylvania, since it is notorious that the deeds poll are rarely recorded. But let the effect of the patent be what it may, there are many reasons why the defendants cannot prevail. Conveyances of the mere office right are not within the act of 1775. The universal practice is the best construction of the law. It is through the land office and not through the recorder’s office that a title to such property is to be traced. Rees, instead of relying upon the mere name in the warrant, should have gone to the office. Warrantees are rarely the real owners of the survey; the person who enters the application, and pays the purchase money, is more frequently the proprietor. Now to say that a purchaser from the warrantee shall not be affected by what appears upon the survey, or other documents in the land office, is to cut up the land titles of Pennsylvania by the roots. It was his duty to go to the office, because the whole of such a title never appears upon the warrant and survey; and he there would have found that the survey had been returned into the secretary’s office for patenting, and that must have led him into the rolls’ office where the patent was recorded. It is a case of gross laches, which takes away the only ground upon which a subsequent purchaser can stand, namely his equity; and the plaintiff sets up in opposition to it a prior and superior equity, and the only legal title, the patent. The warrant and survey with purchase money paid, are not a legal title. They are an equity, which the courts will enforce through legal forms, and that is all. There is still further negligence in Rees. His own deed was not recorded in six months from its date; and before it was recorded, as his letter shows, he had actual notice of the conveyance to Correy. No advantage can be gained by recording a subsequent deed, after notice of a prior one. Duncan in reply to the last observation, said that the time of paying the consideration money, was the time before which notice should be had. Notice after that was of no importance. Fitzgerald v. Burk, 2 Atk. 397. [MAJORITY — *Tilghman C. J. Yeates J.] *Tilghman C. J. John Hoge having obtained a warrant and survey for the land in dispute, conveyed to Correy the lessor of the plaintiff by deed dated 12th May 1790. Correy afterwards received a patent, as assignee of Hoge, but he omitted to have his deed from Hoge recorded. After the issuing of the patent to Correy, Hoge sold and conveyed the same land to Jeremiah Rees, under whom the defendants claim. This last deed was recorded, and the defendants contend, that not having received notice of the deed from Hoge to Correy, it was void, by the act of 18th March 1775. If this case turned solely on the deed from Hoge to Correy, the cause would be clearly with the defendants; because, as to them, the unrecorded deed of which they had received no notice, would be void. But it is material, that Correy has the legal title, for the patent is the consummation of the title. It has been frequently said that a warrant and survey in Pennsylvania give the legal title. This is so far true, that a warrant and survey are sufficient title to support an ejectment. But the legal title is not complete till the issuing of the patent. In the present instance, the deed from Iloge to Correy was so far from conveying the legal title, that it was at that time uncertain whether Correy would ever obtain the legal title; for we find that Casper Eckert afterwards entered a caveat against the issuing of a patent on Iloge’s survey. It is also material, that at the time of Correy’s obtaining the patent, he had the complete equitable title by assignment from Hoge; so that upon receiving the patent, he had complete title both at law and in equity. It is difficult to conceive how such a title can be shaken, because it is impossible that there could be a subsequent purchaser under Hoge, who would not be chargeable with some neglect; and the legal title is not to be taken away, in order to let in a person guilty of negligence. "When Jeremiah Rees made his purchase, he saw that he was buying an imperfect title. It was his business therefore to make inquiry in the land office, where he would immediately have found that the land had been patented, and on searching in the rolls’ office, where at that time patents were directed by law to be recorded, he would have seen the patent, reciting the deed poll from Hoge to Correy. The defendants rely on the act of assembly, by which the deed from Hoge to Correy is void. But the *plaintiff stands not in need of that deed to make out his title. The patent is in itself a complete legal title. It lies on the defendants therefore to show, either a superior equity in themselves, or some fraud in Correy, neither of which they have done. It has been said, that if this cause be decided in favor of the plaintiff, the act of assembly for recording of deeds will have no effect, as to conveyances prior to the patent. But this is not so. Between two purchasers, neither of whom had a patent, the act would have full effect; and in the cause now before us, if Jeremiah Rees had purchased and put his deed on record, prior to the issuing of the patent to Correy, it would have made a very different case, concerning which however I forbear to give an opinion. On the other hand, it would have most pernicious cousequences, to establish it as a principle, that a man who had sold his title under a warrant and survey, or a location, might afterwards defeat the patentee, by conveying to a third person without notice; because we know very well that it has been the practice of the land office, to issue patents to those persons who produced assignments of the warrant and survey, or the location, without inquiring whether such assignments were recorded or not; and in thousands of cases they have not been recorded. I am therefore of opinion, that Correy’s title was good, and that the judgment of the Circuit Court should be affirmed. Yeates J. The Court are confined to the facts set forth in this special verdict; and the question is, whether the provisions of the supplement to the act, entitled “an act for the acknowledgment and recording of deeds” passed on the 18th March 17^5,1 Dali. St. Laws 703, operate as a bar to the recovery of the lands in dispute by the plaintiff? The first section of our law of 1775 is evidently copied from the British statute of 7 Ann. c. 20. The intention of both acts plainly was, to secure subsequent purchasers and mortgagees against prior secret conveyances and fraudulent incumbrances. When a person has no notice of a prior conveyance, there the registering or recording his subsequent conveyance in the manner directed in each county, shall prevail against the prior; but if he had notice of a prior -^conveyance, then that was not a secret conveyance by which he could be injured. Many cases in England have settled the construction of the English statute. 1 Eq. Ca. Ab. 358; 1 Ves. 64; Ambl. 436,626. And the same decisions have taken place on our law here. The ground of the determination is, that the taking of a legal estate after notice of a prior right, makes a person a mala fide purchaser. It is a species of fraud, and dolus malus itself in the civil law, for he knew the first purchaser had the clear right of the estate, and after knowing that, he takes away the right of another person by getting the legal estate, 2 Atk. 654. That the assignment of the beneficial interest in a warrant is within our recording act, I have no doubt. If it is not a complete legal right, it is certainly an equitable one; and equitable as well as legal titles are the objects of this law. It is singular, therefore, that so very few of these transfers are put upon record; like the useless scaffolding of a building after it is completed, they are usually thrown aside. But where a case rests merely on two conveyances of a warrant right, the subsequent purchaser having no notice either express or implied of the prior de'ed, and recording his deed first, I should hold that he would be preferred. The case, however, now before us, is in my apprehension essentially contradistinguished therefrom. It is necessary to attend to the dates of the different papers. The warrant to Hoge was dated 6 April 1785, and the survey made on the 3d June following. Hoge on 12th May 1790 conveyed to John Correy, and Eckert entered a caveat against Hoge 17th February 1792. On the 17th July 1798 a patent issued to Correy, reciting the deed poll which had been made to him, which was recorded on the 26th of the same month in the rolls’ office; and subsequent to all these, on the 18th February 1800, Hoge conveyed to Jeremiah Rees, which deed was recorded on the 11th October following; but the deed from Hoge to Correy has not been recorded. It has been urged by the defendants’ counsel, that nothing short of actual fraud will affect a purchaser under the statute 7 Ann. e. 20, which must be clearly proved. Suspicion will not do. Apparent fraud or clear undoubted notice are of relief. Hine v. Dodd, 2 Atk. 275, was *cited in support of the position. In that case, Lord Hardwicke said, there was barely the evidence by one witness of the defendant’s confession, in contradiction to his answer upon oath, and contrary to a positive act of parliament, made to prevent any temptation to perjury from contrariety of evidence. I admit that it must be satisfactorily proved, that the person who registers the subsequent deed must in the eye of the law have known of the prior deed; but I do not agree, that actual notice by the party interested is in such cases indispensably necessary to bring home such knowledge to him. The special verdict, it is true, excludes the conclusion of actual notice to Rees, that fact not being found. But it is fully settled, that there is no difference between actual and constructive notice in its consequences, except as to guilt; if there was, notice would be avoided in every case by employing an agent. Ambl. 626; Sugd. 490. The meaning of the registering acts according to Lord Hard wicke, was to prevent parol proofs of notice or not notice. The act is notice to ohe parties, and a notice to every body. 2 Atk. 275. The same remark has often been applied to our recording acts. It is said in our books, that constructive notice in its nature, is no more than evidence of notice, the presumptions of which are so violent, that the court will not allow even of its being controverted. Sugd. 492. The question then will Be reduced to a single point; was Rees bound under the circumstances of this case to take notice of the patent granted to Correy, the enrolment whereof preceded the date of his own deed above eighteen months ? The established rules in equity are, that what is sufficient to put a purchaser upon an inquiry is good notice; 1 Atk. 489; that is, where one has sufficient information to lead him to a fact, he shall be deemed conusant of it. Therefore if a man knows that the legal estate is in a third person at the time he purchases, he is bound to take notice what the trust is. 2 Freem. 137. In all cases, where the purchaser cannot make out a title but by a deed, which leads him to another fact, whether by description of the parties, recital or otherwise, he will be deemed conusant thereof; for it was crassa negligentia, that he sought not after it. 1 Cha. Ca. 287; 2 Cha. Ca. 246; Ambler 318; 2 Vern. 384, 662. *Now Rees was well aware of the original warrant and return of survey for the lands he was buying, being in the office of the surveyor general; and he was hound to know, that the uniform usage sanctioned by law, had ever been to record patents in the rolls’ office, and that this duty was specially enjoined by section tenth of the act of 9th April 1781. 1 Dali. St. Laws 891. The title only could be made out by the warrant and survey, which I hold he was bound to examine in the proper office, or take the consequences of his neglect. Had he sought for the original muniments of title, he would have been informed of the caveat by Eckert, and of the proceedings under it; he would have seen the endorsement on the return of survey, that it had heen returned on a certain day into the secretary’s office for patenting; and he would thereby be led fo the fact, from the recital in the record of the patent, that Hoge had executed a previous bill of sale to Correy. He would thus have been forewarned, and might have desisted from completing the purchase, or have procured an indemnification from the vendor. I consider it as a most important feature in the present case, that the strictly legal title of Correy was recorded previous to the execution of the deed to Rees; aud that the plaintiff’s right is much strengthened by the entry of the caveat against Hoge, and the decision of the Board of Property thereon, on which the patent was founded. Upon the whole I am of opinion, that the plaintiff is not bound by the recording act of 1775, and that judgment be entered for him on the special verdict. Brackenrid&e J. gave no opinion, the appeal being from his decision. Judgment affirmed. [Explained in Penrose v. Griffith, post, 288. Cited in 7 W. 276: 6 H. 301.]