¶1[Common Law.)
¶2Although the grantees in a deed executed after, but recorded' Before, another conveyance of the same land, being bond fide purchasers without notice, are by law deemed to possess the better titleyet where L. conveyed to G. the lanrTin controversy specifically, describing hint* self as devisee of A. S. by whom the land was owned in his life time’ and by a subsequent deed (which-was first recorded) L. conveyed to B. '‘all the right, title, and claim, which he, the said A. S., had and all the right, title and interest which the said S. holds as legateo and representative to the said A. S. deceased, of all land lying and being within the state of Kentucky, which cannot at this time be particularly described, whether by deed, patent, mortgage, survey, location, contract, or -otherwise,” with a covenant of warranty against all persons claiming under L. his heirs and assigns; it was lield, that the latter conveyance operated only upon lands, the right title and interest of which was then in L. and which he derived from A. S., and consequently, could not defeat the operation of the first deed upon the land specifically, conveyed.
¶3Error to the circuit court for the district of Kentucky.
¶4*450This weis an' action of ejectment, brought- by the defendant in error against the plaintiff in error, to recover the possession of certain lands in the state of Kentucky. Tó support his action, the plaintiff bélow showed the following title': a phtent to Alexander Skinner; the will of Alexander Skinner, devising all his estate to- Henry Lee; and a deed from Henry Lee to. Adam Craig, conveying the tract , of land in controversy specifically by metes and bounds, describing himseúf as devisee of Skinner; with a regular .deduction, of title from Craig to, the plaintiff. The, deed from Lee to Craig was dated the 23d of December, 1790; attested by three witnesses; acknowledged by the grantor on; the 15th of December, ■ 1795, before two justices of the - peace m Virginia, and recorded in the- Court of appeals in Kentucky, on the 26th of July, 1796. The execution of this deed was proved by one of the subscribing witnesses. The defendant below produced in .evidence a. deed from Henry Lee to' Henry Banks, dated the. ,5th of May, 1795, acknowledged before-the mayor of Richmond, Virginia, on the 13Íh of May, 1795, and recorded in the. court of appeals of Kentucky, on the 11th of July, 1796, granting “all the right, title, and claim which he the said Alexander Skinner had, and all the right, .title, and interest which the said Lee holds as legatee and representative to the baid Alexander Skinner, deceased, of all land, lying and being within the state of Kentucky, , which,.cannot at this time be particularly described, whether they be by deed», patent,, mortgage, survey, location,, contract or *451otherwise,” ■faith a covenant of warranty against all persons claiming, under Lee, his heirs and assigns. ■ Upon this testimony the defendant’s counsel moved the court to instruct the jury, that by-virtue of the deed aforesaid, from Lee to Banks, first acknowledged and first recorded, the legal title was vested in’ the said Banks to the land in question ; that the. deed under ■which the plaintiff claimed was not operative and valid against the deed to Banks, and that the said deed to Banks showed such a legal title out of the ■ plaintiff as that he could not maitftain his action The question of fact, whether the deed of Lee to Craig was duly executed on the day it bears date, was left by the court to the jury, who found a- verdict for the plaintiff, subject to the opinion of the court, upon the question of law arising in the cause. .Judgment was thereupon rendered for the plaintiff by' the court below, and the cause was brought to this court by writ- of error.
¶5The cause was argued by Mr. Talbot, for the plaintiff in error, and by Mr. Swann,, for the defendant in error.
¶7delivered the opinion . of the court. In this case the question of fact, whether the deed of Henry Lee to Adam Craig was duly executed on the day it bears date, was left by the court to the jury, and upon the evidence, they properly found a verdict in favour of that .deed, as an existing deed at that time.
¶8The material question for the consideration of this *452court is, whether, under the.circumstances of this case, the deed of Henry Lee to Henry Banks, which was executed after, but recorded before, the deed of Lee to Craig has a priority over the latter.
¶9This depend? upon the construction of .the terms of the conveyance from Lee to Banks .j for if it eon» veys the same land as the deed .to Craig, then the parties' claiming under' it, being bona fide purchasers, without notice of Craig’s deed, are by law deemed to possess tfie better.title.
¶10It is necessary to bear in mind, that Alexander Skinner, b.y his will, devised ail his real -estate to. Lee, ■and that Lee, by his deed to Craig, cónvey.ed the tract of land in controversy, specifically by metes and boundary, describing himself as devisee of Skinner. By his deed to Banks, he grants ■■“ all the right, title and. claim, which he the said Alexander Skinner had, .and oil' the right, title, and interest which the said Lee holds as legate! and representative to the said Alexander Skinner, deceased, of all land, lying and being within .the state of -Kentucky, which cannot at this time be particularly described, whether they be by deed, patent, mortgage, survey, location, contract, or otherwise . and then follows a covenant of war ranty against all persons claiming under Lee, his heirs and assign's,'
¶11A conveyance oí the right, title, and interest in land, 'is certainly sufficient to pass the land itself, if the party conveying' has an, estate therein at the time of the conveyance; but it passes no .estate which was not then possessed by the party. If the deed to Bapks had stopped after the words- (t. all' the right, *453title and claim which Alexander Skinner bad,” • there might he strong ground to contend, that it embracedjall the lands to which Alexander Skinner had any right,. title, or claim, at the time of his death, and thus have included the lands in controversy. But the court is of opinion, that those words are qualified by the succeeding clause, which limits the conveyance to the right, title, ahd claim,, which Aléxander Skinner had at the time of hjs decease* and which Tee $flso held at the time óf his Conveyance^and.coupling both elapses.together, the conveyance operated only upon fends,:the right,, title, and interest of which was then in Lee, and which he derived from Skinner. This construction is, in the opinion of the court, a reasonable one, founded oh the.apparent intent of the parties, arid corroborated by the terms of the covenant of warranty. Upon any other construction, the deed must be deemed a fraud upon the prior purchaser': but in this way both deed!' may well stand together, consistently with the innocence of all parties..
¶12Judgment affirmed..