Draper v. Bryson

¶1delivered the opinion of the court.

¶2This case presents virtually the same question determined by the court when this case was here in 1852, a full report of which may be found in 17 Mo. 71. The case was remanded for a trial of the comparative value of the title under the sheriff’s deed to Block, recorded December 11, 1823, and that derived from the deed to Bryson which was recorded August 3,1824. This court then held, if Block purchased at the sheriff’s sale with notice of Bryson’s title, -he was not within the protection of the act of 1817 ; but as his deed from the sheriff was recorded on the day succeeding its execution, and of course was recorded in time under the act of 1817, his title was the better title, if the purchaser was without actual notice of Bryson’s deed. The case was tried upon this point and the jury found there was no notice.

¶3It is now contended, and was urged by instructions offered in the court below, that, as Shaw had no title when he died but had passed it to Allen, there was no title in his heirs or administrator upon which the judgment obtained against his administrator could operate, and consequently that the sale passed nothing to the purchaser. But to say nothing of the fact that Shaw had not executed any conveyance in his lifetime, and consequently that the legal title descended to his heirs subject to the payment' of his debts, a judgment and execution operate to convey the same interest which the judgment debtor could himself convey by deed. A purchaser *112at a sheriff’s sale under an execution and judgment is a purchaser within the meaning of the recording acts ; and it might as well be said that if a grantor conveys to one to-day, he has no interest, and can therefore convey no interest to another the next day. Yet if he does so, and the second purchaser puts his deed on record first, without any knowledge of the first conveyance, he holds the title. The cases of Jackson v. Town, 4 Cow. 597, and Jackson v. Post, 9 Cow. 120, have been reviewed, and, so far as this point is concerned, overruled by the same court. (Jackson v. Chamberlain, 8 Wend. 624; Jackson v. Post, 15 Wend. 588.) Such is also the principle maintained in Pennsylvania in the case of Lessee of Heister v. Fortner, 2 Binn. 40. The Pennsylvania statute differed from our act of 1817 in limiting the recording act to mortgages or deeds defeasible. The act of 1817 declared that all deeds, conveyances, bonds, &c., should be recorded within three months or be void against subsequent purchasers. Although a judgment creditor is not a purchaser within the act, a purchaser at the execution sale is. The judgment is affirmed.