Beverley v. Ellis & Allan

“Where a deed is duly proved or acknowledged, and ordered to be recorded, and left with the clerk for that purpose, it shall be considered as recorded from that time, although it may never, in fact, be recorded, but is lost by the negligence of the clerk or other accident. Therefore a deed, under such circumstances, will be preferred to a subsequent deed, which has been duly recorded, even although the party to such subsequent deed may not have had notice of the prior deed.

Appeal from the superior court of chancery for the Richmond district. Peter R. Beverley filed his bill in that court, setting forth, that Carter Beverley conveyed to him a tract of land containing five hundred acres in Culpeper county, by deed of bargain and sale, on the day of January, 1808 | and on the 18th day of the same mouth, acknowledged the same in the county court of Culpeper, when the said deed was, by the said court, ordered to be recorded, and was left with the clerk for that purpose ; that before the said deed was actually recorded, it was lost or destroyed by the negligence of the said clerk, and cannot now be found : that after the 18th day of January aforesaid, the said Carter Beverley convoyed the same land to Charles Copland and William C. Williams in trust for the purpose of securing the payment of certain sums of money to Ellis and Allan, merchants : that the said land has been since sold under the said deed of trust, and Ellis and Allan became the purchasers: that Ellis and Allan had notice of the complainant’s title, before the sale under the deed of trust aforesaid. He therefore prays, that Carter Beverley.and Ellis and Allan may be decreed to convey the said tract of land to him. Ellis and Allan filed their answer, giving an account of the manner in which the debt arose between them and Carter Beverley: that to secure this debt, the deed of trust mentioned in the bill was executed : that they had no knowledge or suspicion, that there was any claim or prctended claim whatever by any person or persons to the said land, except the dower right of Mrs. Catlett, and ncver heard of the complainant’s claim, until the land was advertised for sale : that the sale was postponed in consequence of an advertisement in the name of Peter U. Beverley, announcing to the public bis claim, and cautioning them against purchasing the land : that they made diligent enquiry in all the offices where the said deed must be recorded, and found that there was no deed for the said land to the complainant, nor any paper shewing him to have any title : that thereupon the land was again advertised for sale, under the trust deed, and another notification was issued by the complainant, like the first; and at Hie sale, the defendants became the purchasers, and received a deed from the acting trustee. They therefore conceive themselves to be innocent purchasers, without notice, and for a valuable consideration, &c. The deposition of Munford Beverley proves, that Carter Beverley executed a deed to Peter B. Beverley, for the tract of land aforesaid. William Broaddus, who was deputy clerk of John Jamieson, clerk of the comity of Culpeper, states, that on the 18th day of January, 1808, a deed was acknowledged from Carter Beverley to Peter E. Beverley, as appears by the minute hook of the said court, in the hand writing of the deponent. He further says, that he believes, that the said deed conveyed two tracts of land to the said Peter R. Beverley, lying on Mountain Run, in the said county : that, before the said deed was copied into the record book, he believes it was taken from the said office, privately, by some person to him unknown : that a diligent search has been made for it, but it has never been found. The chancellor dismissed the plaintiff’s bill, and the plaintiff appealed to this court.