McCamant v. Patterson

Holmes, Judge,

delivered the opinion of the court.

The case depends at last upon- the correctness of the instruction which was given for the defendants. It goes upon the idea that the bounty of the act of Congress concerning New Madrid lands which had been injured by earthquakes was conferred upon those only who were the owners of the injured lands at the date of the act, or were their legal representatives afterwards by descent, by purchase, or by operation of law. We take this to have been the object and intent of the act. The former owners of the land had no interest in the matter whatever. The act of Congress was passed on the 17th day of February, 1815. The benefit of the act, whether it be called a donation or a proffered offer of barter and exchange, was conferred directly upon the owners at that date, or upon those holding under them as their legal representatives after that date. This ownership was to be proved as a fact existing, which fixed the line of representation, and ascertained the person who was entitled to the benefit of the act. It is not proved for the purpose of showing a title derived, as vested under the act, from the original grantee or confirmee of the lands which were after- *107 wards injured by earthquakes. No right, title or benefit was vested in him by the act unless he was still the owner.

In Wear et al. v. Bryant, 5 Mo. 147 , this subject was considered, and it was said — and, we think, very wisely said — that “ the owner of the injured land was before the mind of the Legislature from the beginning to the end of the act; that the Recorder of land titles adopted a form of certificate of location in the name of the original patentee or confirmee of his legal representatives for the purpose of leaving it open to be ascertained judicially who was the person entitled to the benefit of the act as such owner; that this designation merely ascertained the line of representation in which that person was to be sought and found; that the question, ‘ who is the owner of the injured land ?’ must necessarily be determined by local laws — that is to say, the laws and jurisprudence then in force in this region of country; that the act of Congress never contemplated any person owning the located land but the person owning the injured land, and that a location in the name of the original grantee or his legal representatives gave the title to the located lands only to him who was the owner of the lands at the date of the location.” These views would seem to be reasonable and sound. The locator might be the person who was the owner of the injured lands at the date of the act, or any person holding under him as his legal representative; but it could not be any person who had formerly been the owner, but had parted with his title before the passage of the act. If he had then ceased to be the owner, the act was not intended for his benefit, and conferred no right whatever upon him.

The certificate of location in this .case was issued in 1815 in the name of Peter Tesson or his legal representatives, and a. location was made and a patent issued in the same name. Tesson was the original confirmee of the land which had been conveyed to John Butler in 1804, and it was conveyed by Butler to Robert McCoy and by McCoy to Mathias Bilsen in 1812; and after the passage of the act of Congress, Bilsen and wife had conveyed the injured land to Charles Lucas by *108 deed duly executed, and recorded'in June, 1815. At the date of the actj then, Mathias Bilsen was the owner of the injured land, and on him and those holding under him after-wards, only, was the benefit of the act conferred. No prior owner had any interest in the matter, nor any concern with it; nor would any conveyance which he could make have any effect or operation either upon the injured lands, or upon the right to locate other lands in lieu thereof. The question here is not of a derivation of title as such from the original grantor by recorded conveyances which might be notice to subsequent purchasers from the same grantor prior to the passage of the act, in which case the matter of notice' might be important; but this inquiry concerns the fact of ownership at the date of the act of Congress, and the right of the owner to locate other lands in lieu of the injured land under that act. This right is given to him who was then the owner or to his legal representatives, and to none other. The line of representation prior to the act is deduced from the original confirmee of the land merely for the purpose of ascertaining as a matter of fact who was the person owning the injured land at the date of the act, and on whom or his legal representatives afterwards the benefit of the act was conferred, and to whose use and benefit the certificate of location and the patent issued in the name of such original grantee, or his legal representatives must be held to enure.

A part of the defendants’ evidence which was adduced to establish this fact of ownership at the date of the act of Congress consisted in an unrecorded deed, and a record and decree in chancery upon a lost deed, setting up the deed and declaring the title transferred by the deed at its date in 1812. This unrecorded deed and the record and decree were competent evidence, and showed a title transferred as between the parties at the date of those deeds. If such were the fact it made Bilsen the owner of the injured lands, and brought him within the purview and bounty of the act of Congress ; and that was a matter in which the former owners, Butler and McCoy, under whose heirs the plaintiff claims by subse *109 quent conveyance, had no interest, privity or concern. Nor have these former owners, their heirs, or those holding under them by subsequent deeds made after the passage of the act, any concern with the evidence by which this fact of ownership at the date of the act is established as between the parties to the prior transfers of title, further than this, that they were at liberty to question in court the competency and sufficiency of the evidence when produced to prove the fact. The effect of this evidence was to show a title passed to Mathias Bilsen before the passage of the act. That the plaintiff had no notice of these deeds and records at the time when he afterwards purchased from the heirs of Butler and McCoy, or from those holding under them, was a matter of no importance. The plaintiff did not stand in the position of a bona fide purchaser for a. valuable consideration without notice of a prior conveyance of the same land by the same grantor.

The plaintiff invokes the protection of the registry laws, and relies upon the case of Beattie v. Butler, 21 Mo. 313 , on the subject of actual notice. The position here maintained is not in conflict with the laws governing the registration of deeds. Before these laws can have application it must appear that sbme real estate has existed to be conveyed, and has been conveyed, under them. The subject of controversy here is the land injured by earthquakes, and the right to locate other land in lieu thereof under the act of Congress. Before the injury by earthquakes and the passage of the act for the relief of the sufferers, this subject matter had no existence. The transfer of title to real estate will no doubt be governed by the laws of the State regulating conveyances which are at the time in force, and conveyances by the owner of the injured land after the passage of the act of Congress and before a location was made, or conveyances of the located lands after location was made, will be governed by the registry laws then in force in the same manner as other conveyances of real estate. And in respect of a derivation of title from the original grantor down to the owner at the pas *110 sage of the act, the rights of persons claiming by recorded or unrecorded deeds from the same grantor would be determined by reference to the registry laws then in force, when ascertaining this line of representation and the fact of ownership of the injured lands at the date of the act.

The act of 1804 made conveyances “ fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration” unless recorded — 1 Terr. Laws, p. 46, § 8. They were still valid against the grantor and his heirs or devisees, though not recorded. The law appears to have remained so till 1825, when recording was declared “to impart notice to all subsequent purchasers and mortgagees,” and no deed was to be “ valid and binding, except between the parties thereto and such as have actual notice thereof, until deposited for record” — R. C. 1825, p. 221, § 14. This provision has continued essentially the same to the present time. Under these laws, a conveyance unrecorded was good and passed the title as against the grantor and his heirs and de-visees ; and they were void only as against subsequent purchasers and mortgagees, without actual notice from the same grantors, whose deeds were first recorded — 4 Kent’s Com. 456; Vance v. McNairy, 3 Yerg. 171 ; Jackson v. Burgott, 10 J. R. 462; Lowry v. Williams, 13 Me. 281 . These acts relate only to purchasers and mortgagees for value claiming title under the same grantor, and no other can dispute the validity of the unrecorded deed. The deed conveys all the title of the grantor, and he has no longer any interest' or estate in the land, and none can descend to his heirs, though a purchaser under the lien of a judgment against him might be protected as a purchaser — Davis v. Ownsby, 14 Mo. 170 ; Valentine v. Havener, 20 Mo. 133 ; Stillwell v. McDonald, (Oct. T. 1866). The plaintiff claims \mder deeds from the heirs of John Butler, who died long after this certificate of location was issued, and he had never made a second conveyance of the land to any other person for a valuable consideration. The unrecorded deed was good and valid against him and his heirs, and all persons holding in privity under *111 them. They had no interest or estate in the land, and nothing could pass by any deed they could make.

The same principles are to be applied to the conveyances from the heirs of Robert McCoy, under whom the plaintiff also claims. The deed from Robert McCoy to Bilsen, made in 1812, was unrecorded and was lost. The decree in chancery set up this deed and established the fact of its former existence and loss. It is said that this decree was never recorded in the office of the Recorder of deeds for the county. This is nothing to the purpose. The decree did not operate as a conveyance of title at that date. Its effect was to ascertain and establish the fact that this deed had existed, and that the title to this land had been conveyed by McCoy to Bilsen by deed unrecorded and lost in 1812. This decree was binding and conclusive tipon the parties to the proceedings and on all persons claiming in privity under them, and all privies in estate, in blood, or in law, are estopped by the decree; and for this purpose it matters not that it was never recorded — 1 Greenl. Ev. p. 528, §§ 528 & 541. It follows that Robert McCoy at the date of his decease, long after-wards, had no title whatever in this land, and none descended to his heirs; nor had he ever made a second conveyance to anybody else.

The result is that the plaintiff purchased land in which his"* grantors had no title, interest or estate, and has never owned any. He purchased by quit-claim deeds merely, which did not purport to convey anything more than the right, title and interest which the grantors then owned in the land, and that was nothing — Brown v. Jackson, 3 Wheat. 439 ; Oliver v. Pratt, 3 How. (U. S.) 410; Farrar v. Patton, 20 Mo. 81 .

The instruction for the defendants being correct, it disposes of the whole case; and it will be unnecessary to consider the instructions which were refused for the plaintiff.

The judgment will be affirmed.

The other judges concur.