Act of February 24, 1819-January 1, 1820. R. C. ch. 99. consideration for the purchase, a bond with sureties being executed to him for the remainder, takes a security for repayment by assignment of the subject matter, with the privity and knowledge of the vendor, the whole matter being recited in the original deed: Held, that on 2d sale of the subject by the vendee, to satisfy all demands, the original vendor had not such a lien on the purchase money, for what remains due to him, as would defeat, or should be preferred to the mortgagee. Cood v. Pollard, 10 Price's E. Rep. 109. By agreement between vendor and vendee of land, the vendee engages, in consideration of the land, to pay off certain debts of the vendor, and to support him during his life, and two of his daughters, until they shall be married-vendee pays the debts: Held, the agreement for supporting vendor and his daughters, constitutes no lien in equity on the land. Brawley v. Catron et al. 8 Leigh, 522. Tucker, P. in delivering op. of court, said, that this doctrine of equitable lien should not be extended one jot beyond its present limits; p. 528; and see Douglass v. Fagg, 8 Leigh, 588. The most effectual mode of securing debts, and subjecting real property to their payment in Virginia, is by DEED OF TRUST. As this method is in daily practice, the following notes may prove useful. Where a grantor has conveyed all his estate, real and personal, to trustees, the conveyance includes equitable as well as legal rights; and the trustees are the proper persons to assert them, in a court of equity. Carter et al. v. Harris, 4 Rand. 199; see Maitland et al. v. Newton adm'r, 3 Leigh, 714; Pope v. Whitcombe, 3 Russ. R. 124. In the recent case of Chowning v. Cox et al. 1 Randolph, 306, the general question was presented, whether a deed executed by a debtor conveying land to his creditor, and purporting to constitute him the trustee for selling the land, and applying the proceeds of sale to the payment of the debt due to himself, can be regarded otherwise than as a mere mortgage, to which the right of redemption is incident, and the aid of a court of equity necessary, to enable the creditor to sell the land so as to bar the rights of the debtor, and those claiming under him. The court were of opinion, that such a conveyance, was not a deed of trust, but a mortgage; on the principle, (among others,) that the powers and duties of a trustee, are utterly incompatible with the due exercise of those powers and duties by the creditor. "In pronouncing this opinion," (the court said,) "we wish to be understood as confining ourselves to the case before the court, which is a case of real property. How far the same principle may or may not, be applicable to a case of personal property we wish to be understood as giving no intimation." Pr. Cabell, J. in delivering court's opinion. See Tucker v. Wilson, 1 P. Where a debtor, who has given a deed of trust, enjoins a sale of the property, and pending the suit, the trustee dies, the chancellor, on dismissing the bill, may direct the property to be sold by his marshal, though the deed was to the trustee and his heirs. Pate v. M'Clure et al. 4 Rand. 164, 174. Yet if the mortgagee in fact, execute the power fairly, and make sale of the subject for cash, and if the mortgagor be apprized of the sale, and present at it, and make no objection to the mortgagee's proceedings, but on the contrary acquiesce in them, he shall be regarded as waiving his objection to the defect of the mortgagee's power to sell, so far as the purchaser is concerned, and shall not be allowed in equity to redeem, as against the purchaser. Taylor's adm'r et al. v. Chowning, 3 Leigh, 654. A deed of this description, according to the established rule in England, "is so far a mortgage, that the owner may at any time before a sale, require a re-conveyance upon paying the money due." But the owner cannot object to the sale by the creditor trustee, nor disturb his vendee, though by the terms of the original conveyance, the owner was to join the trustee in the deed to the purchaser. See Clay v. Sharpe et al. Ch. Mich. T. 1802, Sug. Law of Vendors, App. 14, p. 17, 2 Am. ed.; Corder v. Morgan, 18 Ves. jun. 344, 347. And Bergen et al. v. Bennett, 1 Caines' Cas. in Err. 1, 15-21. Where a third person, disinterested and indifferent between the parties, is constituted the trustee, he takes the legal, though defeasible title; which title becomes absolute in his vendee by his deed, at law. And in a court of law, his vendee need not show that the conditions of the trust deed have been complied with. While, however, the vendee gets a legal title by the mere execution of the deed by the trustee, the original owner of the land, or his alienee, is not to be injured by a breach of trust on the part of the trustee. A purchaser from him, the requisitions of the trust deed not being complied with, does not, in equity, get a complete title. He does not get it, because, until then, the trustee is not authorized to convey it. Taylor v. King, 6 Munf. 358; Harris v. Harris, Ib. 367. A trustee is strictly limited by the terms of the deed creating the trust, and has no power which it does not expressly give. Courts of equity extend their control not only over the acts of trustees, but over the acts of those who have any agency in enabling the trustees to violate their trust. Where trustees sell on credit and receive the money before it is due, discounting legal Act of February 24, 1819-January 1, 1820. R. C. ch. 99. interest, it does not operate in equity a discharge of the lien; a court of chancery will consider the lien as still subsisting, and the purchaser as responsible to the creditor. If in the regular execution of a trust, money is paid to a trustee, his co-trustee is not liable for it merely because he joined in the receipt; but if the trustee who received the money had no right to receive it, his cotrustee who joins in the receipt is considered as co-operating in a breach of trust, and will be involved in its consequences. Wallis v. Thornton's adm'rs et al. 2 Brock. R. 422. A trustee, in a deed of trust, is to be considered the agent of both parties; he ought to act impartially between them; he ought to disregard the suggestions of either party inconsistent with that duty: he has in general, no greater powers, touching his trust, than a commissioner of a court of equity. He may, of his own motion, apply to a court of equity to remove impediments to a fair execution of his trust; as also, if necessary, to adjust the actual sum, which ought to be raised by the sale. If he should fail, however, to do this, the party injured by his default, has an unquestionable right to do it. See Quarles v. Lacy, 4 Munf. 251, 259; Lane v. Tidball, 1 Gil. R. 130, 132; and Chowning v. Cox et al. 1 Rand. 311; Ord v. Noel, 5 Madd. R. 438; Anon. 6 Madd. R. 10. Where personal property is conveyed by deed of trust, and a claim is set up a by third person, a court of equity ought not to injoin a sale under the deed, but should leave a party to his legal remedy. Poage v. Ball et al. 3 Rand. 586. Where a debtor conveys personal property to a trustee to secure a creditor the payment of his debt, and a person obtaining possession of the property sells it and applies the proceeds to his own use, the cestui que trust cannot maintain an action at law in his own name against the party converting the property. The action will lie only at the suit of the trustee. Poage v. Bell, 8 Leigh, 604; and see 1 Leigh, 436, 2 Leigh, 651, 3 Leigh, 89, for cases cited by J. Tucker, in deliv. op. of ct. The grantee (trustee) must accept the deed, which should be executed by him, for the property cannot pass out of the grantor without a delivery, which cannot exist without an acceptance. See Jackson v. Phipps, 12 Johns. R. 418; Jackson v. Bodle, 20 Johns. R. 184. An assignment for the benefit of preferred creditors is valid, although their assent is not given at the time of its execution, if they subsequently assent in terms, or by actually receiving the benefit of it. Brooks v. Marbury, 11 Wheat. 78, 96-97; Halsey v. Whitney, 4 Mason, 206. Where there is an assignment to two trustees, and one assents and the other dissents, the property passes to the assenting trustee; 'tis not essential to the passing of the property that all the trustees should execute the deed or accept the trust, though a party may, by express proviso, make the deed void unless all the trustees assent to the trust estate. But unless there be such a proviso, the property will pass to the assenting trustee. Small et al. v. Marwood, 9 B. & C. 300; Nicolson v. Wordsworth, 2 Swanst. 365, 369; Adams v. Taunton, 5 Madd. 435; King v. Donally, 5 Paige, 46; and see Com. Dig. first G. note (a), by Hammond, 4 vol. 296. If property be conveyed by a debtor in trust for the benefit of creditors who are neither parties nor privy to the deed, the deed merely operates as a power to the trustees to apply the property in payment of debts, and such power is revocable by the debtor. Acton v. Woodgate, 2 Mylne & Keene, 492; and Wallwyn v. Coutts, 3 Mer. 707; Garrard v. Ld. Lauderdale, 3 Sim. 1; Page v. Brown, 4 Russ. 6. It is not essential to the validity of a deed of trust that it should be executed by the cestui que trust. The deed operates to pass the legal title so soon as executed by the grantor and the trustees, and can be avoided only by the dissent, express or implied, of the cestui que trust. Skipwith's ex'r v. Cunningham et al. 8 Leigh, 271. Deeds of trust or mortgages may be made to secure future advances and responsibilities. See the U. S. v. Hooe et al. 3 Cranch, 73, 89; Shirras et al. v. Craig et al. 7 Cranch, 34, 50-1; Hendricks v. Robinson, 2 Johns. Ch. R. 306, 308, &c.; James v. Johnson, 6 Johns. Ch. R. 429; Bodlam v. Tucker et al. 1 Pick. R. 398; Conrad v. Atlantic I. C. 1 Peters, 386. If the trustee be nominated and appointed by both debtor and creditor, and the trustee receive the proceeds of the subject and misapply them, by whom is the loss to be borne? If the creditors select the trustee they must sustain the loss. See Hutchinson v. Ld. Massarcene, 2 Ball & Beatty, 49. I presume a sale under a deed of trust operates as a foreclosure and sale upon a mortgage, and therefore if the property produce less than the debt, the creditor may sue on the bond, &c., for the balance. See Hatch v. White, 2 Gall. 152; Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330; Globe Ins. Co. v. Lansing, 5 Cowen, 380. A conveyance by a debtor to a trustee on trust to sell and pay certain scheduled creditors, cannot be enforced by them unless they have become parties to the deed by executing it, such a conveyance being merely a private arrangement by the debtor for his own convenience, and the grantee or trustee for him, and not for his creditors. Garrard v. Ld. Lauderdale, 3 Sim. 1. Sale made by trustees under a deed of trust to secure a debt is impeached by the heirs of the debtor in equity, on the ground that the trustees did not make due advertise Act of February 24, 1819-January 1, 1820. R. C. ch. 99. hereafter be made and executed, shall be void, as to all creditors(k) and subsequent purchasers for valuable consideration, (a) without notice,' (e) unless ment of the sale, in pursuance of the deed of trust: Held, unless such advertisement was made the sale is irregular, and the burden of proof that due advertisement was made rests on the parties insisting on the sale. Gibson's heirs v. Jones et al. 5 Leigh, 370. Real estate is conveyed to trustees to secure payment of a debt; after the death of the debtor the trustees proceed to sell the trust subject to pay the amount claimed by the creditor; it appears that the just amount of debt depends on accounts not yet settled, and so the amount due is unascertained, and there is reason to believe that the amount claimed by the creditor was not all due him: Held, this is a valid objection to the sale made by the trustees on a bill in equity filed by the heirs of the debtor to set aside the sale. Gibson's heirs v. Jones et al. 5 Leigh, 370. A vendee of land executes a deed of trust of same land to secure payment of the purchase money; if there is any doubt as to the title of the land, or part thereof, equity will injoin the trustees from selling the land, or at least such part thereof as to which the title is doubtful, to satisfy the debt. Miller v. Argyle's ex'r et al. 5 Leigh, 460. Trustees in their advertisement of the sale should state expressly what title they undertake to convey. See M'Donald v. Hanson, 12 Ves. 277; Frame v. Wright, 4 Madd. R. 364. If a deed of trust be fairly executed to secure a just debt, it cannot be impeached for fraud for any matter ex post facto. Jno. Clayton, sh'ff, v. Anthony, 6 Rand. 285. If a deed of trust be fair, and the sale under it be fair also, the sheriff who levies an execution (issued against the goods and chattels of the debtor in the deed) on the property so fairly sold and in the possession of the purchaser is a trespasser, and liable to an action. Ib. And, even though the sale be fraudulent, the deed being good, it operates as effectually to prevent an execution from being levied on the property as if there had been no sale. Ib. If A. makes a fair deed of trust to secure the payment of a just debt to B., the property conveyed is first liable to pay the debt due B., and if any surplus remains after paying that debt, and charges of executing the trust, that surplus is a fund to which the creditors of A. have a right to resort, but it cannot be reached by execution before a sale under the deed, because it is an equitable and contingent interest. Ib. (k) An unrecorded deed is void as to creditors, whether they have notice or not, but it is good against purchasers with notice, or who have not purchased for valuable considera tion. A purchaser under a sale in behalf of a creditor holds the rights and occupies the place of the creditor; and therefore he will not be affected by notice of an unrecorded deed. If a sheriff sell under execution a slave mortgaged by a deed not recorded, and the purchaser buys the property subject to the claim asserted in the deed, though the deed be void as to the creditor, yet the purchaser takes the property subject to the payment of the mortgage debt. But if in such case the sheriff sells all the interest he has a right to sell under the execution, whether the deed be valid or void, the absolute title passes to the purchaser discharged of any claim on the part of the mortgagee. Guerrant v. Anderson, 4 Rand. 203; Tuttle v. Jackson, 6 Wend. 213, 226. The defence of purchaser for valuable consideration without notice may be made by answer as well as by plea. Donnell & al. v. King's heirs and devisees, 7 Leigh, 393. (a) To constitute a bona fide sale for valuable consideration, the purchaser must, before he had notice of the prior equity of the holder of an unrecorded mortgage, have advanced a new consideration for the estate conveyed, or have relinquished some security for a pre-existing debt due him. The mere receiving of a conveyance in payment of a pre-existing debt is not sufficient. Dickerson et al. v. Tillinghast et al. 4 Paige, 215; and see Coddington v. Bay, 20 Johns. 637; Rosa v. Brotherson, 10 Wend. 85. (e) The whole current of decisions on this subject from Forbes et al. v. Deniston et al. 2 Bro. P. C. 189, shew, that notice to a subsequent purchaser, of a prior unrecorded conveyance, shall be as effectual, as if it were actually recorded. If he obtain notice of the prior conveyance or incumbrance, before he becomes "a complete purchaser' he will be bound. Notice, before actual payment of the purchase money, and the conveyance actually executed, though the money be secured; or, the money paid, and the conveyance not executed, will bind him; "for if he receive notice before either [both] of these acts are perfected, he ought to stop, until the equity is enquired into." See Tourville v. Naish, 3 Peere Wms. [306;] Wigg v. Wigg, 1 Atk. 384; Wilcox v. Calloway, 1 Wash. 41; 3 H. & M. 316; Blair v. Owles, 1 Munf. 38; Lambert v. Nanny, 2 Munf. 196; 3 Munf. 389, Roane, J. opn. As to the terms of relief, see Youst et al. v. Martin, 3 Serg. & Raw. 423. The ground on which he is bound, and postponed in equity, is, that the taking the legal estate, after notice of a prior purchase, or equity, makes him a mala fide purchaser, and amounts to a fraud. In order to fix this fraud, the proof of notice must be clear; Act of February 24, 1819-January 1, 1820. R. C. ch. 99. they shall be acknowledged or proved, and 'lodged with the clerk to be' recorded, according to the directions of this act; but the same, as between the parties, and their heirs, (f) and as to all subsequent purchasers, with notice(b) thereof, or without valuable consideration,' shall nevertheless be valid and binding. Aug. 1734, c. 6, § 24, 1 Stat. Larg. 398. Ibid. 5. § 5. If the party, who shall sign and seal any such writing, reside not in the United States, or any territory thereof,' the acknowledgment of such party, or the proof of the number of witnesses requisite, of the sealing and delivering of the writing, before any court of law, or the mayor or other chief magistrate of any city, town or corporation, of and in the country in which the party shall dwell, certified by such court, or mayor, or chief magistrate, in the manner such acts are usually authenticated by them, shall be effectual, for the admission thereof to record. 1794, c. 189, R. C.; 1792, c. 90; 1785, c. 62. [See post. No. 30.] 6. § 6. The clerks of the several county and corporation courts of this commonwealth, and their deputies, shall be and they are hereby authorized and required to admit to record at any time(2) in the form required by this act, any conveyance, either on the acknowledgment of the party or parties, or the proof on oath of such acknowledgment by the legal number of witnesses thereto, made in the office of the respective clerks. And any conveyance so recorded shall have the same legal validity in all respects, as if it were proved in open court.(g) Feb. 9-Mar. 1, 1814, c. 10. a presumption of fraud will not be made on doubtful evidence. Curtis v. Lunn, 6 Munf. 44; 254-5-6; and 4 H. & M. 387-8. But a purchaser with notice, may avail himself of the want of notice of his vendor: otherwise, the vendor would not be protect ed in the full enjoyment of his property. Lacy et al. v. Wilson, 4 Munf. 313; Curtis v. Lunn, 6 Munf. 42; Pre. Ch. 51; 11 Ves. jun. 478; Jackson v. Given, 8 Johns. R. 137; Jackson v. Van Valkenburgh, 8 Cowen, 360; Hagthorp v. Hook, 1 Gill. & Johns. 270; Boone et al. v. Chiles et al. 10 Peters, 177, 209, &c. A. purchases land with notice of B.'s equitable right to have a conveyance of the same land, under a prior purchase from their common vendor; and then A. sells the land to C., and the vendor conveys the land to C., who has no notice of B.'s equity: Held, C., the fair purchaser, without notice, shall be protected in equity, but A. is personally liable to B. for the value of the land. Tompkins et al. v. Powell, 6 Leigh, 576. If a creditor file a bill to set aside a deed as fraudulent, the date of the exhibition of the bill being within the period allowed by law for recording the deed, the creditor cannot thereafter object that the deed was not duly recorded; because the creditor, by his bill, appears to have had that notice of the existence of the deed, which it was the object of the act to afford. Gibson v. Randolph, 2 Munf. 310. (f) Turner v. Stip, 1 Wash. 319-322; Currie v. Donald, 2 Wash. 58, 64. (b) A debtor mortgages the same land by successive deeds, &c. See Sitlingtons v. Brown et al. 7 Leigh, 271. Am. at Rev. 1819. (2) This act, anterior to the amendment at the revisal of 1819, did not authorize the clerks to receive proof of a deed in the clerk's office, after eight months from its delivery. After that period 'twas necessary to prove the deed in open court. Heron, Plume et al. v. The U. S. Bank, 5 Rand. 426. (g) By the act of February 26, 1828, c. 28, p. 22, Sup. R. C. c. 155, p. 213, it is provided: That any power of attorney, or other deed, which shall appear by the certificate of the clerk of any court of record in the United States, or any territory or district thereof, to have been acknowledged before such court, by the party or parties who shall have signed and sealed the same; or to have been proved before such court by the number of subscribing witnesses in such case, required by the laws of this state, shall be evidence in any court of this commonwealth Provided, That the certificate of the clerk be accompanied by the seal of his court, if a seal belong to it, and if not, the fact, that no such seal exists, be stated by the clerk, and in lieu of such seal, the certificate of the presiding judge or justice of such court be added, shewing that he, whose name is affixed as clerk of such court, is clerk thereof, and his attestation is in due form. And any court of this commonwealth, in which such instruments are usually recorded, may admit to record any deed authenticated as aforesaid, at the instance of any party interested therein. That the certificate of the clerk of any county or corporation court in this state, that any deed has been duly admitted to record upon proof or acknowledgment according to law, in such court, or the office there Act of February 24, 1819-January 1, 1820. R. C. ch. 99. the cer 7. § 7. Any deed may, in like manner, be admitted to record upon tificate under seal of any two justices of the peace(1) for any county or corporation within the United States, or any territory thereof, or within the district of Columbia, annexed to such deed, and to the following effect, to wit: County (or corporation) sc: We A. B. and C. D. justices of the peace in the county (or corporation) aforesaid, in the state (or territory, or district) of do hereby certify, that E. F. a party (or E. F. and G. H. &c. parties) to a certain deed, bearing date on the day of and hereto annexed, personally appeared before us in our county (or corporation) aforesaid, and acknowledged the same to be his (or their) act and deed, and desired us to certify the said acknowledgment to the clerk of the county (or corporation) court in order that the said deed be recorded. Given under our hands C. D. [L. s.]' Ibid. of and seals this Am. at Rev. 1819.(h) day of may of, shall be sufficient to authorize the clerk of any other county or corporation to admit such deed to record in his office, and to have the same effect as if the same had been proved or acknowledged therein. And by act of February 18, 1830, Sess. Acts 1829-30, c. 16, p. 22; Sup. R. C. c. 154, p. 213, it is prescribed: That whenever an original deed, conveying real or personal estate, shall have been duly recorded in any county or corporation court, and such original be lost or mislaid, a copy thereof from the records, duly certified by the clerk of such court, may be recorded in any other county or corporation within this commonwealth, at the instance of any person interested, who shall make affidavit before a justice of the peace that the original is lost or mislaid and the recording of such copy shall have the same force and validity as the original would have had if it had been so recorded. The admission of a deed to record, is a ministerial act, and does not give it any additional validity. If the court refuse to admit a deed to record, properly acknowledged or proved, it may be enforced by a peremptory mandamus. Dawson v. Thruston et al. 2 H. & M. 132; Mann v. Givens et al. 7 Leigh, 689. A deed improperly admitted to record, is not a recorded deed, within the recording acts. Currie v. Donald, 2 Wash. 64; Heister's lessee v. Fortner, 2 Binney, 40, 44. A deed admitted to record, is prima facie evidence, that it was duly admitted. Lessee of Talbot v. Simpson, 1 Peters's Rep. 188. The endorsement or certificate on the deed by the proper officer, is evidence of its recordation. Kinnersley v. Orpe et al. 1 Doug. 56. Post. at the end of tit. EVIDENCE. But if it was not lodged to be recorded until eight months after its date, and was not proved by the witnesses on whose testimony it was recorded, to have been sealed and delivered within eight months before it was recorded, it is not good as a recorded deed. Harvey et al. v. Alexander et al. 1 Randolph, 219, 241. A. B. [L. S.] (1) 'Tis presumed that the mere certificate of the justices is sufficient evidence, (at least prima facie,) of their official character. See Willink v. Miles, 1 Peters's Rep. 429-30, where it was held, that a person who offers a deed, purporting to have been acknowledged before a person who styles himself a justice, (having authority to take such acknowledgment,) need not produce the commission of the justice, or give any further evidence to prove him to be a justice, until some evidence is given on the other side to render that fact questionable. Washington and Peters. And Rhodes & al. v. Selin & al. 4 Peters's (715) Cir. Ct. Rep. Deeds made by a party residing in another state of the Union, must be authenticated by two justices, &c., and not by a court, &c., to admit them to record, &c., under this act. Lockridge v. Carlisle, 2 Leigh, 186. The statutes of Virginia, concerning the authentication of foreign deeds, apply to the original deeds, not to copies. Pertermans v. Laws, 6 Leigh, 523. (h) See the remarks of Roane, J. in Baker (treasurer,) v. Preston et al. 1 Gil. R. 284-5, 6. In Moore et al. v. Bickham et al. 4 Binney, 1, it was held, that where a deed has been acknowledged before a magistrate appointed by law to take and certify the acknowledgment, in order that the deed may be recorded, the parties have no right to make the most trifling alteration in it. Are erasures and interlineations in deeds, to be taken prima facie, as having been made before their execution? 'Tis to be presumed, that an interlining, if the contrary is not proved, was made at the time of making the deed. 1 Keb. 21, note to 11th ed. Co. Litt. continued in 17th ed. by Butler, without remark, [225, b] (1) note 136. Bishop v. Chambre, I Mood. & Malk. 116. Heffelfinger v. Shute, 16 Serg. & Raw. 44. An interlineation in a deed, is not to be presumed to have been made before execution; the presumption is the contrary, unless otherwise proved. Per M'Kean, C. J. in Morris's lessee v. Vanderen, 1 Dall. 67. An erasure in a deed, not shewn to have been |