Palmer v. Cross

delivered the opinion of the court.

In the year 1808, Ann Michie, of Louisa county, Yirginia, executed a deed by which she settled upon her daughter, Ami Cross, one of the complainants, certain slaves to her separate use and benefit during her life, and after her death to her children. This deed was recorded in Louisa, in which county the parties) all resided, about eighteen months after the deed was executed. *65They continued their residence at the same place, until the year 1835, when it seems they moved to Tennessee, and in 1836 to the county of Carroll in this State. Oliver Cross, the husband of Ann and the father of the other complainants, died in 1838. His estate, apart from the slaves settled upon Mrs. Cross by the deed of Mrs. Michie, and from some other slaves which were bequeathed by Mrs. Michie Avith similar limitations, was insufficient to pay his debts. Palmer Avas one of his creditors and one of the administrators, and he was proceeding under an order of the probate court, to sell the slaves embraced in the deed and will of Mrs. Michie, to pay off the debts. This bill was filed by Mrs. Cros's and her children to enjoin the sale, and to set up their rights to the slaves. The xvill was proven and recorded in Louisa county, Yirgina, but neither the deed nor the will had been recorded in this State at the time the bill was’ filed. The cause Avas heard in the vice chancery court at Carrollton, the injunction was made perpetual, and an appeal taken to this court.

The deed of Mrs. Michie was one which, by the laws of Virginia, she was permitted to make. Its provisions do not come in conflict Avith the statutes or policy of that State, and numerous settlements of a similar character have been carried into effect there. The fact that the deed was not recorded for some eighteen months after its execution, can have no weight in this controversey. The statutes of Virginia, by Avhich the legality of the registration in that State must be tested, enact that all deeds of trust and mortgages shall take effect from the time they are delivered to the clerk to be recorded; and all other conveyances, covenants, agreements and deeds shall take effect from their date if proven, or acknowledged and delivered to the clerk for recording in eight months from the time of their execution, but if not so delivered within eight months, they take effect and become valid, as to all subsequent purchasers, for valuable consideration, without notice, and as to all creditors, from the time when acknowledged, or proven and delivered to the clerk of the proper court to be recorded. Tate’s Dig. 101. This deed, there*66fore, became good in the year 1809, when it was recorded, a period long antecedent to the origin of the debt of the appellant.

Neither will the statute of frauds of Virginia vary the result. The clause in that statute in regard to the loan or limitation of property, where the possession is seyered from the title, was first passed in 1785, and introduced a provision not included in the English statutes of frauds. It has been followed in several of the other states, and it is the- prototype of the clause on the same subject in ours, with few distinctive features, except that the time is five years, instead of three as with us. There the courts have decided that the making and recording of the conveyance need not be coeval with the transaction; if it be recorded at any time within five years, the title of those claiming under the deed will be protected against the creditors of the party in possession. Beasley v. Owen, 3 H. & M. 449. In other words, five years possession will create a title in the possessor, which will enure to the benefit of creditors and purchasers, unless the deed creating the loan or limitation be within that time recorded. According to the decisions, the time of eight months, which is limited for recording deeds mentioned in the preceding clause of the statute, does not apply to this clause, and it is holden to be sufficient to record the deed within the five years. In this instance the deed was recorded within eighteen months, and it falls within the principle just adverted to.

The same rule has been adopted in this State. Mosby v. Williams, 5 How. 520. The court in that case held that “ the party making a loan is allowed three years to make a record of it.”

Having shown that the title of Mrs. Cross, to the slaves conveyed in the deed, was valid in Virginia, the inquiry arises, whether her rights are the same here? Is there any law of this State, either of registration or of any other character, which precludes the enforcing of their claim ?

One of the laws for which this effect is claimed in argument, is the fourth Section of the act of 1822, in regard to conveyances. H. & H. 344. That clause enacts “ That every deed respecting the title of personal property hereafter executed, which by law ought to be recorded, shall be recorded in the court of that *67county in which such property shall remainit then goes on to provide for the recording of the deed in' a different county, in case the property be removed. Now the deed under which this controversy arises, was executed before the passage of the law, and is, by the terms of the law, excluded from its operation. It is also manifest that this section only contemplates deeds which were executed for personal property within this State at the time of making the conveyance, and its subsequent removal from one county to another within the limits of this State. Without some statutory provision, registration of titles to personal property is not required; and it would be judicial legislation for the court to require a class of instruments to be recorded in regard to which the statutes have made no such requisition. This point has already been decided, by several of the most respectable courts in the Union, in accordance with the views here expressed. Crenshaw v. Anthony, Mar. & Yer. 102. Loving v. Hunter, 8 Yer. 4. Forsyth v. Kreakbaum, 7 Monroe, 99. Smith v. Burch, 3 Har. & Johns.; and Bank of U. S. v. Lee et al. 13 Peters, 107. The tenor of these cases is uniform, that if the deed be recorded in the State where it is executed, according •to the laws in force there, it is sufficient, unless the statutes of the State, into which the property may be removed, by express provision require such deeds to be registered within its limits. In this State we have none such.

It has also been insisted that the statute of frauds operates on the case. We are of a different opinion. At the time this controversy commenced, neither Oliver Cross nor any one for him, had held the slaves for three years in this State. It has already been decided by this court, that the statute will not attach, unless the possession has been continued for three years in this State. Mosby v. Williams, ut supra.

This disposes of the main points in the cause; but one or two others have been urged in argument, which should not be passed over without notice. It is said it nowhere appears that Mrs. Michie had any right to make the settlement upon Mrs. Cross, inasmuch as the deed recites that she had purchased the slaves of Oliver Cross, the husband. That recital is the only *68evidence in the cause, that Oliver Cross ever owned the negroes in his own right. That recital must be taken altogether, not one part dissevered from the context; and the same clause which states the fact of the former ownership, also states the purchase. No room is therefore afforded for reasonable doubt; and no attempt has been made to prove the recital false.

Again it is urged that Ann Cross was silent on the subject of her title, and that she, on one, occasion, suffered a part of the slaves to be valued, with a view to the taking of stock in the Northern Bank, upon a mortgage of the slaves. This occurred in her presence, and without objection on her part. Her husband was also present. Her conduct could not, under any circumstances, prejudice the rights of her co-complainants, who hold the interest in remainder, after the termination of her life estate. The law has thrown certain guards around a married woman to protect her from the influence of her husband. It has provided a mode by which alone she can be divested of her real estate; and'to use no stronger language, it is certainly very doubtful whether she can be deprived of her separate personal estate in any other mode than the one prescribed by the instrument of settlement. The supreme c'ourt of the United States, in the case already cited from 13 Peters, p. 107, decided that the mere silence of Mrs. Lee, as to her title, and her failure to-obtrude her rights upon the notice of others, could not divest her of her property. Without undertaking to say that the conduct of a married woman may not be so fraudulent as to destroy her rights in some cases, we do not believe that this is a case of that kind. See Wilks v. Fitzpatrick, 1 Humphreys, 58. 2 Mer. 483.

In the sequel it may be proper to remark that we do not mean to anticipate the decision of the point, whether the lapse of three years, without fecording the deed in this State, would transfer the title to the possession. That is left to be determined when the case may arise.

The property secured to Mrs. Gross by the will of her mother, is equally protected with the other.

Had Oliver Cross retained possession of the slaves in Virginia *69for more than five years, without any record of the deed, the result might have been different. This is said with a full recollection of the case of Mosby v. Williams, before cited; which, upon this point, may deserve a careful review. The gift or loan in the case of Fitzhugh v. Anderson, 2 H. & M. cited in the opinion of the court, was made prior to the passage of the Virginia Statute of Frauds, and the decision is different from those which have since been made. See Gay v. Moseley, 2 Mun. 543. Garth v. Barksdale, 5 Mun. But on this we give no authoritative opinion, because the facts do, not call for it.

On the whole, we see no error in the decree of the court below, and we therefore direct it to be affirmed.