Bryan v. Cole

The judge who decided this case seems to have supposed that as the deed was not recorded within twelve months after the removal of the property into YorTc county, it was void as to all the creditors of the grantor, whether creditors at large or creditors whose rights had attached on the property. All these acts regulating conveyances have received a different construction. • It was never supposed that if a deed under one of the former acts was not recorded within eight months, as required by that act, it was void as to creditors at large, whose rights had not attached on the 'property before the deed was recorded after the expiration of the eight months. But independently of that construction of the former acts, the words in the act under consideration, “ such deed, for so long as it shall not be recorded &c. shall be void &c.” ought to put that question at rest. These express words were intended to give validity to the deed, though not recorded within the twelve months from the removal of the property into another county, as soon as it should afterwards be recorded in such county : and the judgment not having been rendered, and the fieri facias placed in the hands of the sheriff, before it was recorded according to the provisions of the act, Cole Sf Sheldon were still creditors at large, their rights having never attached on the property conveyed by the deed. I think, therefore, that the judgment in this case must be reversed, and the cause sent back to the circuit court.

I concur entirely in the interpretation given by the appellant’s counsel, of the act of assembly, 1 Rev. Code, ch. 99, § 11. If, during the interval *501between the removal of Banks in November 1821, and the recording of the deed in January 1827, a judgment had been obtained and a ft. fa. delivered to the sheriff, the deed of trust would have offered no obstacle to its levy. But the recording here having taken place anterior to the judgment, Cole 8f Sheldon had no rights which had attached upon the chattels, until the deed of trust had been resuscitated in all its force by the recording in York county in January 1827. To give to the law any other interpretation, would be in effect to give a lien to the creditors at large, where no such lien had been contracted for. If there had been no deed of trust when the debt was contracted, Banks would have beeffat liberty, notwithstanding its contraction, to sell or incumber his property to any other person: and certainly the case before us is not less strong than it would be, if, instead of recording the old deed of trust, Banlcs had executed a new one. Had he done so, it would have withdrawn the chattels from the reach of' Cole Sf Sheldon; and pari rations the revivification of the original deed must have that effect. The effect of the act of assembly was indeed, as to transactions occurring in the interval between the removal and recording, merely to give to the deed the operation of a new deed, as of the date of its record in the county to which the property may have been removed. The instruction was therefore wrong. The judgment must be reversed, and a new trial directed, in which the instruction given on the former trial must not be repeated.

concurring, judgment reversed, verdict set aside, and cause remanded for a new trial, in which the instruction given on the former trial is not to be repeated.