Orr v. Hodgson. law is certainly otherwise. Where a person dies, leaving issue, who are aliens, the latter are not deemed his heirs-at-law, for they have no inheritable blood, and the estate descends to the next of kin, who have an inheritable blood, in the same manner as if no such alien issue were in existence. 2 Bl. Com. 249; Duroure v. Jones, 4 T. R. 300; Com. Dig. Alien, C, 1. In the present case, therefore, the defendants, the nieces of Lucy Paradise, are her heirs-at-law, entitled to take by descent, whatever estate could rightfully pass to her heirs, unless the British treaty of 1794 enlarged the capacity of her grandsons to take by descent, a point which will be hereafter considered. And this brings us to the other question in the cause, whether Lucy Paradise, under the circumstances of the case, had such an estate in the land, as could by law pass by descent to her heirs? There is no question that she took an estate in fee-simple, by devise from her father; but it is supposed, that although born in Virginia, by her removal to England, with her father, before, and remaining there until long after, the American revolution, she must be considered as electing to remain a *British subject, and thus became, as well by operation of law, as [*462 by the statutes of Virginia on this subject, an alien to that commonwealth. And if she became an alien, then the estate held by her could not pass by descent, but for defect of inheritable blood, escheated to the gov ernment. Com. Dig. Alien, C, 2; Co. Litt. 2 b. Admitting that Lucy Paradise did so become an alien, it is material to` inquire, what effect the treaty of peace of 1783 had upon her case; and upon the best consideration that we can give to it, we are of opinion that the sixth article of that treaty (a) completely protected her estate from forfeiture, by way of escheat for the defect of alienage. That defect was a disability solely occasioned by the war, and the separation of the colony from the mother country; and under such circumstances, a seizure of the estate by the government, upon an inquest of office, for the supposed forfeiture, would have been a confiscation of the property, in the sense in which that term is used in the treaty. When the 6th article of the treaty declared, "that no future confiscation should be made," it could not mean to confine the operation of the language to confiscations jure belli; for the treaty itself *extinguished the war, and with it, the rights growing out of war; [*463 and when it further declared, that no person should, on account of the part he had taken in the war, suffer any future loss or damage, either in his person, liberty or property, it must have meant to protect him from all future losses of property, which, but for the war, would have remained inviolable. The fifth article of the treaty also materially illustrates and confirms this construction. It is there agreed, that congress shall recommend to the state legislatures to provide for the restitution of all estates of British. subjects, &c., which had been confiscated. Yet, why restore such estates, if, eo instanti, they were forfeitable on account of alienage? This subject (a) Which provides, "that there shall be no future confiscations made, nor any prosecutions commenced, against any person or persons, for, or by reason of, the part which he or they may have taken in the present war; and that no person shall, on that account, suffer any future loss or damage, either in his person, liberty or property; and that those who may be in confinement on such charges, at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecutions so commenced be discontinued." Orr v. Hodgson. has been heretofore before us, and although no opinion was then pronounced, it was most deliberately considered. We do not now profess to go at large into the reasoning upon which our present opinion is founded. It would require more leisure than is consistent with other imperious duties; and we must, therefore, content ourselves with stating, that the doctrine here asserted is the decided judgment of the court. If the case were not protected by the treaty of 1783, it might become necessary to consider, whether it is aided by the ninth article of the treaty of 1794, which declares, that British subjects, who now hold lands in the United States, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein, and that as to such lands, and the legal remedies incident thereto, neither they, nor their heirs or *464] assigns, *shall be regarded as aliens. It does not appear, by the bill in this case, that Lucy Paradise was in the actual possession or seisin of the land, at the time of the treaty. Nor is it necessary, because the treaty applies to the title, whatever it is, and gives it the same legal validity as if the parties were citizens. Harden v. Fisher, 1 Wheat. 300. But although it does not directly appear by the bill, what the title of Lucy Paradise was, at the time of the treaty; yet, as the title is asserted in her, both before and after the treaty, and there is no allegation of any intermediate transfer, it must be presumed, in this suit, that she never parted with her title. It follows, that in this view also, her title was completely confirmed, free from the taint of alienage; and that by the express terms of the treaty, it might lawfully pass to her heirs. And here it becomes material to ascertain, whether the treaty of 1794, under the description of heirs, meant to include any other persons than such as were British subjects or American citizens, at the time of the descent cast; and it is our opinion, that the intention was not to include any other persons. It cannot be presumed, that the treaty stipulated for benefits to any persons who were aliens to both governments. Such a construction would give to this class of cases, privileges and immunities far beyond those of the natives of either country; and it would also materially interfere with the public policy common to both. We have, therefore, no hesitation to reject any interpretation which would give to persons, aliens to both *465] *governments, the privileges of both; and in this predicament are the children of the Countess Barziza. The rule, then, of the common law, which gives the estate to the next heirs having inheritable blood, must prevail in this case. We have not thought it necessary to go into an examination of the articles for a marriage settlement, entered into between Lucy Paradise and John Paradise, on their marriage, for two reasons: first, the articles were merely executory, and being entered into by Mrs. Paradise, when under age, and not afterwards ratified by her, they were not binding upon her; secondly, if they were binding, yet, inasmuch as the only persons in whose favor they could now be executed, are aliens, incapable of holding the estate to their own use, no court of equity would, upon the general policy of the law, feel itself at liberty to decree in their favor. Decree dismissing the bill affirmed, with costs. (a) (a) MARSHALL, Chief Justice, did not sit in this cause. *ASTOR V. WELLS et al. Recording act.-Fraudulent conveyance. Under the registry act of Obio, which provides that certain deeds “shall be recorded in the county in which the lands, tenements and hereditaments, so conveyed or affected, shall be situate within one year after the day on which such deed or conveyance was executed; and, unless recorded in the manner, and within the time, aforesaid, shall be deemed fraudulent against any subsequent bond fide purchaser, without knowledge of the existence of such former deed of conveyance, ‚" lands lying in Jefferson county were conveyed by deed; and a new county, called Tuscarawas county, was erected, partly from Jefferson, after the execution and before the recording of the deed, in which new county the lands were included; and the deed was recorded in Jefferson: Held, that this registry was not sufficient, either to preserve its legal priority, or to give it the equity resulting from constructive notice to a subsequent purchaser. Notice of a prior incumbrance to an agent, is notice to the principal. Under the statute of fraudulent conveyances of Ohio, which provides, that "every gift, grant or conveyance of lands, tenements, hereditaments, &c., made or obtained, with intent to defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person or persons who shall purchase such lands, &c., shall be deemed utterly void, and of no effect:" Held, that a bond fide purchaser, without notice, could not be affected by the intent of the grantor to defraud creditors. APPEAL from the Circuit Court of Ohio. The bill in equity filed in this cause stated, that Arnold Henry Dorhman, in 1806, became indebted to the United States, in the sum of $6515.10, for duties upon the importation of certain goods, payable at the custom-house in the city of New York. The plaintiff, Henry Astor, became *bound with Dorhman for the pay- [*467 ment of those duties; and thereupon, Dohrman, to secure Astor, executed and delivered the mortgage deed of the 14th of August 1806, in the bill mentioned, for the 13th township, in 7th range, then lying in Jefferson county, in the state of Ohio and Dorhman became further indebted to the plaintiff in the sum of $2700, to secure which, upon said township, he afterwards, on the 25th of August 1807, executed another mortgage deed of the same premises. Both the deeds were recorded in the county of Jefferson, on the 2d of October 1810, and in Tuscarawas, on the 21st of October 1812, which county was erected in part from Jefferson, after the execution, and before the recording therein of said deeds. : On the 26th of August 1807, the plaintiff released to Dorhman onefourth of said township, by deed, recorded in Tuscarawas county, on the 9th of March 1813. On the 24th of October 1810, Dorhman gave the defendant Wells, a deed of trust of the three-fourths of said township, not released, to secure the payment of $5000, for which the defendant Wells had become liable for Dorhman, by indorsing his paper, at the bank of Steubenville, which was recorded in Tuscarawas, the 13th of January 1811. On the 12th of February 1813, the defendant Wells took another deed from Dorhman, for the quarter sections which had been released, which was recorded in Tuscarawas county on the 10th of March 1813, to secure $3000, for further indorsements by Wells for Dorhman. The bill then charged the defendant Wells with notice of the plaintiff's deeds and *lien upon said lands, before his deeds, indorsements, or any payments made by him; that he accepted the deeds, made the indorsements, and payments, if any, with knowledge, &c.; charged a secret understanding, that the released sections, conveyed to Wells, by the last-mentioned deed, were to inure to Dorhman or his family; and that neither transaction between Wells and and [*468 Astor v. Wells. Dorhman was bona fide. Dorhman died on the 21st of February 1813, nine days after his last deed to Wells, who commenced a suit against the heirs of Dorhman, on the 27th of August following; and obtained a decree of sale, under which he purchased the premises; all which was charged to be fraudulent. The widow and heirs of Dorhman, by their answer, admitted all the deeds, and answered, generally, that they knew nothing of the other transactions. The answer of Wells admitted the plaintiff's deeds; stated his own deeds to be bona fide, and denied notice and fraud. Obadiah Jennings, who was examined as a witness in the cause, testified that he prepared the first deed to Wells, and saw it executed, but said that Dorhman employed him, and he considered himself exclusively employed by Dorhman, and not as the agent or attorney of Wells, in that transaction; that it was probable, he had held some conversation with Wells as to his liabilities for Dorhman, and the nature of the security to be given, before Dorhman applied to him to draw the deed; and that Wells sent the deed to him in a letter, to carry to be recorded in Tuscarawas county. Dorhman informed him, that Astor's agent had brought Astor's deeds and put them *469] on *record; and Dorhman wished to give Wells the preference, and consulted him how it could be done. The witness examined the record, and knew of Astor's deeds and lien on those lands. He advised Dorhman to give Wells a deed, which, if recorded in Tuscarawas, would give him the preference; but never gave Wells any information respecting Astor's deeds. March 6th. Brush, for the appellant and plaintiff, argued : 1. That the defendant's (Wells) deed was void, under the second section of the statute of Ohio, entitled an "act for the prevention of frauds," &c., which declares, "that every gift, grant or conveyance of lands, tenements, hereditaments, &c., made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person or persons who shall purchase such lands, &c., shall be deemed utterly void, and of ne effect." Rev. Laws of Ohio, 321. The bill shows Astor to be a creditor; the answer admits it; and Jennings proves that Dorhman informed him such was the fact. The debt being secured by mortgage upon the lands in controversy, only makes the fraud more palpable. Still, he was and is a creditor; and it is manifest, Dorhman made the deed to Wells to defraud Astor, his creditor. 2. The recording of Astor's deeds in Jefferson county, was notice to the defendant, Wells. During all the time given for recording, the lands lay in that county; it was, therefore, the proper place for recording those deeds, and the recording afterwards must have relation to the time when *470] and the place where they ought to have been recorded; considering the township as part of the county for that purpose. Heath v. Rose, 12 Johns. 140; 1 Johns. Cas. 85; Vin. Abr., tit. Relation, 288. And the recording ought to be considered as nunc pro tunc, yet not so as to affect any deed made and recorded prior to the making this record: and as to all subsequent, no inconvenience or injustice could be complained of, inasmuch as every purchaser would be bound to search those records for all deeds there recorded prior to the division. Using such diligence as he was bound Astor v. Wells. to use, knowing the lands originally lay in that county, he would have discovered Astor's deed there recorded, before any deed made to him; and ought, therefore, to be charged with notice. To what time does the act of assembly relate, when it says the deed shall be "recorded in the county in which such lands shall be situate ?" Revised Laws of Ohio, 318. To the time of making and delivery of the deed, or to the time of recording? The latter would make the deed take effect from the recording, not from the delivery, as is the law. The case of Taylor v. McDonald's Heirs, is not analogous, as there the lands did not lie in the county where the deed was recorded; and the question was upon the effect of the deed at law. . 3. By accepting the deed prepared by Jennings, the defendant, Wells, has made Jennings his agent, by legal implication; and notice to him is notice to his principal. Jennings acted in the transaction; advised Dorhman how to give Wells the preference; *prepared the deed; saw it [*471 executed, and at the request of Wells carried, it to be recorded; and had some previous conversation with Wells as to his liabilities for Dorhmau, and the nature of the security to be given. In Le Neve v. Le Neve, Ambl. 438, the defendant "denied notice of the first articles and settlement, till six months after the marriage; and denied that Norton was employed as her solicitor, though she put confidence in him, because he was concerned for her husband, and recommended by him, who assured her, he (Norton) would make a handsome provision for her; and Norton assured her, he had taken care to secure her an annuity of £150 a year, and did not then,. or any time before, give her any notice of any former settlement." Although the defendant here has not been as candid as the defendant was in that case, yet by his artful taciturnity and scanty pleading upon the most important subject, much is to be inferred against him. In the case of Jennings v. Moore, 2 Vern. 609, Blincorne acted the very part Jennings has in this transaction, so far as the conduct of either is material to affect the purchaser; and so far as there is any difference, it would seem, the case at bar presents much the strongest ground of equity, to set aside the subsequent incumbrancer or purchaser. Moore had completed his purchase, by paying the money; Wells had not. Blincorne was a bona fide creditor, and had an interest in the estate of Whitlatch, the vendor, and his object was, to secure an honest debt; but Wells's purchase, and the sale to him, was made to *defraud and defeat a bona fide creditor. Moore was charged, upon [*472 the naked fact of acceptance; but in this case, strong circumstances and inferences, beside that, implicate Wells. He, most undoubtedly, knew the handwriting of Je ings, his friend, and was bound to inquiry; but Jennings was careful not to mention it to him in any way! So was Blincorne, and so Norton; and the care which all have taken for the purchaser implicates him with their agency, if he will accept, they having notice, and contriving to conceal from him, is the ground of mala fides, and the foundation for the charge of notice against the purchaser. Brotherton v. Hatt, 2 Vern. 574, maintains the same principle, and is called by Lord HARDWICK E a clear authority." The same scriveners were witnesses, and engrossed all the securities, and were quasi agents for all the lenders. Not that the fact of agency was otherwise established, than by the fact of accepting or receiving the securities, engrossed by the same scriveners, who had notice; the concealment of which by them, if the law could tolerate it, would make |