¶1SEPARATE OPINION, BY
¶2Concurring in the result of the opinion, and! all the expressions of Mr. Justice Smith delivering it, save upon one point, I prefer to base my assent to so much of the judgment of this court as denies to Robert Williams the whole- of the land, and gives appellant, Cunningham, the half of three acres upon this ground: That it does not clearly appear that Robert Williams, was ignorant of the former deed to James and his sister; that it does appear the deed was made to him without his knowledge as a security, by his sister acting in his behalf, and who knew all about the former unrecorded deed. In other words, he does not stand so clearly as a purchaser for value, without knowledge of an unrecorded deed, as to justify a reversal on his appeal, with regard to this small interest. Otherwise, I would not be inclined to hold that an unrecorded deed, returned or destroyed, left nothing in the grantor which he could convey to a third party. Technically, the legal title passes with the first deed, and is not re-vested by its surrender or destruction. Yet nevertheless, by force of the registration acts, the vendor may make full, complete and absolute title to a third party without notice, for a valuable consideration, who records his deed, and Robert would be entitled to this protection, but for the doubt which the case leaves as to his position. There is no substantial difference of opinion between myself and my associates. I merely desire to be more specific.