Sidle and others of the deficiencies due embraced this item of $14,000, and the declaration of trust by Sidle and Langdon of incumbrances, which, in my opinion, refers to the Morrison interes.t. 4. While Sidle and Langdon took the title to the land with notice of the complainant's equity, and could not by a declaration of trust affect it, yet the complainant in my opinion is liable to them for the money actually paid Morrison for his interest, which was $8,646.55, and they must account to him for any income, profits or advantages derived from the use of the property. My conclusion is that complainant is entitled to a decree in his favor requiring James M'ICnight, upon the payment to him of the sum of $569.58, to execute to the complainant a conveyance of one· tenth of the said real estate, and Jacob K. Sidle and Robert B. Langdon to account for the rents l profits, and income of said real estate while in their possession, and to pay over to complainant the excess, if any there be of the same over and above said sum of $8,646.55, and to convey nine·tenths of real estate to complainant. But in case said sum of $8,646.55 shall exceed such rents, profits, and income, then to execute such conveyance upon the payment of the balance to them by complainant. And that upon the failure of the said Knight to execute such conveyance within 10 days after the payment or tender to him by complainant of said $569.58, that such decree stand as a conveyance. And upon the failure of said Sidle and Langdon to make such accounting within 10 da.ys after the seJ;vice of notice on them to appear before the master for such purpose, or to execute said deed within 10 days thereafter, or after the payment or tender to them of the excess of said sum of $8,646.55, over said rents, profits, and income, in case there is an excess, that such decree stand as a conveyance from them. The case will be referred to H. E. Mann, as master, to take the accounting provided for. Let a decree be entered accordingly.
BURNELL and others.
(Circuit Oourt, D. Kansas.
ESTATES OF DECEASED-WIDOW'S PORTION OF REAL
One-half in value of said real estate, secured to the widow by the statutes ot Kansas, is equivalent to an undivided one-half before partition made. The widow may mortgage or convey her interest in said real estate, as an undivided one-half, before it is set apart to her by the probate court.
S. SAME-AuTHORITY OF WIDOW TO MORTGAGE.
Rossington, Johnson ct Smith, for complainant. Leland J. Webb, for defendant Ingham.
FOSTER, D. J. The question involved in this case, which comes up on the complainant's demurrer to defendant Ingham's cross-bill, is one of superior title to a part of the land included in complainant's mortgage. In July, A. D. 1877, Henry R. Dunham and Dunham, his wife, (now FidelIa Burnell, one of the defendants in this cause,) conveyed to Thomas J. Ingham the W. t of the N. W. t, and lot one in section 17, township 9 S., of range 4 E., in Clay county, by def!d of general warranty. This deed was not recorded until December 31, 1878. In the mean time Henry Dunham died in September, 1877, leaving his widow Fidella, and two minor children, surviving. In February, 1878, and before the widow's interest in the estate had been set apart, she executed the mortgage in suit herein, and, among other real estate, included in said mortgage an undivided half interest in the real estate before sold to Ingham, which mortgage was . filed for record April 6, 1878, being long before the Ingham deed was filed for record, and of the existence of which deed the mortgagee had no notice. The question is as to priority 01' better title to the wife's interest in the land in controversy. The statute of Kansas (chapter 33, § 8) provides as follows:
"One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold 011 execu tiOIl or other judicial sale, and not necessary for the payment of debts, and of which the wife has made. no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property in fee-simple, upon the deaLh of the husband, if she survi ves him."
The recording act (chapter 22, § 21) reads as follows:
"No such instrument in writing shall be valid except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record."
This section is more comprehensive and sweeping than the recording act of 1862. That provided that the instrument should not be of any validity against st£bsequent purchasers for a valuable consideration without notice, etc. The present statute makes the deposit of the instrument with the register of deeds essential to. its validity as
FERRY V. BURNELL.
against parties not having actual notice of its existence. To alL parties not having such notice, it is invalid and of no effect. There seems to be no way of escaping the conclusion that, so far as this mortgagee is concerned, and as to any rights he may have acquired under the mortgage, the conveyance to Ingham, of which he had no notice, cannot intervene. As to him it had no validity. It is urged by counsel for Ingham that, under the statute of descents and distribution before cited, there was nothing to descend or to set apart to the widow in this land, as she had conveyed all her interest away before her husband's death. As a matter of fact, that is true; so it would have been equally true that Dunham and wife, after the deed to Ingham, had no interest in the land to convey, and yet if they had afterwards made a conveyance of the land to a bona fide purchaser having no notice of the Ingham deed, the transfer would have held good. The law conclusively presumes title in suoh oases to be in the parties are concerned. grantor, where the rights of There have been several adjudicated cases as to the relative rights of an innocent purchaser of real estate from an heir or devisee, and one holding an unrecorded deed made by the ancestor in his lifetime; and it has been decided in Kentucky and Connecticut (4 Mon. 120; 6 B. Mon. 531; 24 Conn. 211) that the unrecorded deed of the ancestor took precedence of a recorded deed from the heir or devisee of the grantor. They put it upon the ground that the statute only makes void unrecorded conveyances as to subsequent purchasers from the same grantor, and not from his heirs or devisees. That reason would lose much of its force in this case, for this mortgagee holds whatever right be has under one of the grantors in the Ingham deed, and not from an heir or devisee; and, besides, the Kansas recording act does not make the instrument invalid alone as to subsequent purchasers, but to all parties not having actual notice. The cases referred to, however, are overborne by the weight of authority and sound· reason. In Kennedy v. Northrup, 15 Ill. 155, this question is fully discussed by Judge CATON, delivering the opinion of the court, and citing McCulloch v. Endaly, 8 Yerger, 346, and Powers v. McFarren, 2 Sergo & R. 44. In the Illinois case the court say: "In case of his [the ancestor's] death, the heir becomes the apparent owner of the legal title, and it is equally iJl1portant and equally just tbattbe pub. lic may be allowed to deal with him as with the original grantor if living." The rule established in the Illinois case has been followed in Missouri. Youngblood v. Vastine, 46 Mo. 241. If this is true of an heir or devisee who is in no manner a grantor in the unrecorded
deed, and whose signature is not required to divest the grantor's title, for-tim'i it must be true of the wife, who must have joined in the deed to convey a perfect title, and. who could not be deprived of her interest in the land without her consent, except when sold on judicial . sale. The statute of Kansas, on the death of the husband, vests the title of one-half in value of all the real estate of which he was seized at his death in the wife, subject, however, to debts existing against the estate. This is a provision for the wife in lieu of dower, and it becomes a vested right on the death of the husband. The statute says one-half in value shall be set apart. What is the widow's interest before it is set apart? I should say it is an undivided one-half. The words "in value" are used in the statute to negative the idea that it might be one-half in area that is to be set off to the widow. From all that appeared on the record, at the time this mortgage was made, Mrs. Dunham was the owner in fee of the undivided half of this real estate, subject to the payment of any debts of the husband not liquidated by the personal estate, and which interest remained to be set apart to her under the direction of the probate court. On this apparent fltate of .facts the mortgagee had the right to act; and I know of no reason why the widow may not convey all her title and interest in the land without waiting until it is divided or set apart to her. demurrer to cross-bill must be sustained.
STURGIS and another.
(District (/ourt, S. D. New York.
LIEN OF JUDGMENT-SUSPENSION 01!' LIEN-STATE
Under sections 914, \115, and 916 of the Hevised Statutes, in common-law actions the district court has power to suspend the lien of a judgment upon lands of the judgment debtor during appeal or writ of error, and to cause the docket of the judgment to be so marl,ed, in accordance with the provisions of the state practice. The lien of a judgment upon lands of a judgment debtor, ing upon the state statutes and practice as adopted under the United States may be modified or suspended in accordance with the state practice, in the discretion of the court. _,
E. B. Hill, Asst. Dist. Atty., for the United States. Tkos. Harland, for defendants.
BROWN, D. J. A judgment having been recovered in the above action in favor of the plaintiff, and a writ of error having been