Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 creditors, &c., when acknowledged and recorded, "as if the contract was a deed conveying the estate or interest embraced in the contract." This section puts recorded contracts and title bonds on the same footing, and makes them in all respects equivalent, so far as being notice is concerned, as recorded deeds that pass the legal title. "Any contract in writing made in respect to land" or "made for the conveyance or sale of real esttate." The section does not undertake to say of what form or structure such a contract shall be, or define its qualities or attributes, but refers this wholly to be determined by the common law, and the then existing statute law of Virginia, and to this last let us advert. And first, to Virginia's statute of frauds touching sales of real estate, passed as early as November 30, 1785, 1 Code '19, 372. § 1, and the decisions of her courts upon it. In the Code of '50 the same clause is substantially enacted, except the latter dispenses in express terms with the necessity for stating the consideration in the writing. See Code '50, p. 580, which the English law, it would seem, had made necessary. These prohibited any action being maintained on such promise or agreement, "unless the contract or some memorandum or note of it was in writing and signed by the party to be charged thereby, or his agent. We refer also to the acts referred to in the marginal note of § 4, before cited, 1 Code 19, p. 362, chap. 99, § 2. "No covenant or agreement where land is charged to be valid against creditors," &c., unless, &c.; and also same, p. 365, § 13, being the act of '13, which provides that "every title bond or other written contract in relation to land" may be proved, certified, acknowledged and recorded in the same manner as deeds, and when so, to be evidence of their existence, to creditors, &c., without giving the additional force the Code of '50 gave to recorded contracts. Now in all these instances is it not fair to infer that the legislature intended an agreement so evidenced by writing signed by the party, as takes it out of the statute of frauds, as 'tis termed, and so that her courts of equity decree upon it spec fic performance. It seems to us such was its intention. And if section 4 contemplates any other contract, or one to be evidenced or proved in any different manner, we ask our Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 opponents to point the court to the authority anywhere in Virginia law for the distinction. Now let us see what construction the courts of Virginia have put upon these provisions. How far they hold such. contracts must be in writing, and how far they may be proved by parole evidence. Before the Code of '50 dispensing with the statement of the consideration, her court of appeals dedecided the "memorandum or note" mentioned must amount to a contract in order to meet the requirement. Johnson vs. Ronald, Adm'r, 4 Mumf., 77; Smith vs. Jones, 7 Leigh, 165, in which the former decision is approved. In the former case, the contract was evidenced by a letter, written by Ronald to Johnson, promising to sell and convey him certain lands "according to their agreement," without stating what that agreement was. It was held sufficient under the statute of frauds to decree specific performance upon-the court admitting parole evidence to prove what the agreement referred to was, and also the taking in of the note which was his part of the contract, after suit brought. These cases are decisive against any such supposed objection, unless it be shown that the fourth section refers to some other kind of contract than we have supposed, which cannot be done. The true rule being, we submit, to admit parole testimony to prove all acts in pais, or aleunde called for by the writing having the essentials of a contract, when such parole evidence is not inconsistent with the writing, but auxiliary to it as the evidence proving the election made by Parker, or performance of other conditions existing in pais. Such evidence is not required to be in writing, acknowledged and recorded. 1 Greenl. Ev., §§ 275, 276, and sequiter. Now let us examine the contract in question with respect to the fourth section, in another aspect. That section expressly declares that the contract "shall be as valid and of course as effectual against creditors, &c., as if it were a deed conveying the same land." Let us then consider it as being such a deed, actually passing the title to the land, and containing the same stipulations as to Parker's option, and that deed duly acknowledged and recorded as the contract was. What would be its effect as against creditors, &c.? What effect is given to duly recorded mortgages, deeds of trust, and Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 other instruments passing the title, but containing various clauses of defeasance, stipulations, &c., after, as well as before the time fixed for performing the condition or stipulation? We all know they are notice to all the world, after, as well as before condition broken-upon the legal presumption that title to real estate, when once vested, continues so until proved to be divested. To rebut this presumption, the legislature of West Virginia recently passed a law requiring the mortgagee or lienor to execute and acknowledge a release, which when recorded, shall conclusively rebut this presumption. Code of W. Va., 477-8. In this view, which it seems to us is correct, the burden was upon our opponents to have shown that Parker had failed to take either tract, and so the contract had become void by the happening of the only event which the parties had agreed should terminate it. Until our opponents had shown this, the contract in contemplation of law continued, and was sufficient notice without the respondents having proved that Parker had made any election. Leighton vs. Stephens, 19 Me., 154. There the vendor claimed property he had conditionally sold, against the creditors of the vendee. The court held the burden was on him to show the sale conditional, and that the condition had not been complied with. In the present case the creditors stand in the shoes of the vendor, and the respondents in those of the vendee's creditors, in principle. See also Hughs vs. Wilkinson, 37 Miss., 782, cited and approved in 3 Washburne on R. P., p. 275. It was held where a deed was given conveying the estate, which contained a stipulation that the grantee should have two years to elect, whether to pay the purchase money, and in case he decided not to, the title to revert. Parole evidence was admitted to prove his failure to pay within the time, and that the title had reverted. This is on the principle that when the act in pais or aleunde on which the condition depended took place, that moment the deed itself proprio vigore executed the rest, which in that case was to revest the title-such act or event in pais-being proved by parole evidence. Just so with the instrument in question. The moment Parker elected to take the land in controversy, the contract itself from its own intrinsic vigor vested Parker with an absolute equitable estate in fee simple, which before was conditional. This self Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 executing power, when the fact in pais happens, is expressed in the recorded writing, and is enough to put all parties upon inquiry as to whether the act or event in pais has taken place or not-the burden being on the party seeking to terminate the estate or contract, to prove the fact happening in pais; otherwise the estate by intendment of law, continues; 4 Kent's Com., 126-7; Talman vs. Snow, 35 Maine, 342. The contract by the fourth section is made equivalent to a deed that passed the title-so far as imparting notice is concerned. If this court should affirm the decision of the court below, it would overthrow half the titles in the State. We all know the title to a large portion of her lands rests on recorded contracts, or title bonds, as they are usually called-containing all sorts of informality, conditions, and stipulations of every kind. Suppose it be now decided that all the acts in pais or aleunde, as Parker's election was, growing out of, and called for by these various writings, must be proved by some writing, signed, acknowledged and recorded-how many think you would stand the test? Not one in twenty. Or suppose this court should decide that no recorded mortgage, or deed of trust, should give security to the holder against the creditors or subsequent purchasers of the grantor, after the time fixed. therein for payment, or performance of other condition-what would be the result? We only make this suggestion to show the consequences that must follow an affirmation of the decree of the court below, and that the court may fully appreciate its importance to the whole community. We therefore repeat the proposition: that all acts in pais, growing out of and called for, and not inconsistent with the written contract, may be proved by parole testimony, and not necessarily by recorded writing. We say, then, first: the writing in question was a complete contract at its inception. Second, that if it were otherwise -upon Parker's making the election, it became so, and vested in Parker an absolute equitable estate, in fee simple, and this from the proper and intrinsic vigor of the writing itself, without any further recorded evidence. Third, that in either. aspect it met the requirements of the fourth section before mentioned, and repelled all judgment liens absolutely. It was sufficient to have put all parties upon inquiry, by which they Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 would have soon learned what had been done in regard to the stipulation or option given therein to Parker, which is sufficient in a court of equity. Smith vs. Low, 1 Adkins, 490; French vs. Loyal Company, 5 Leigh; Judge Carr's opinion, 643; who, after discussing the English and American authorities on the point, adopts as the true rule laid down in Smith vs. Low, "Whatever is sufficient to put a party upon inquiry, is good notice in equity." Also Daniels vs. Davidson, 16 Vesey, 249; 17 Ib., 439. In this case Daniels, while in possession as tenant of Davidson, had taken an agreement to purchase the fee. While thus situated, Cole purchased the fee of Davidson; Daniels filed his bill for specific performance; Cole testified that he had no actual notice of such agreement at the time he purchased. But the court decided the fact of Daniels being in possession was sufficient to have put Cole "upon inquiry," which imputed mala fides, and avoided his deed. The record in the present case shows the respondents took actual possession in October, 1856, and have continued it since, paying the taxes which have been assessed to them on the commissioner's books, and their share of the expense of partitioning. This possession was taken six or seven months before any of the judgments were recovered, and even before the debts were contracted. This was sufficient, then, to have put the creditors "upon inquiry." But we maintain the evidence shows they had actual notice that their debtors had ceased to own the land in controversy. Is not the acceptance by Hale, the principal plaintiff in the cross bill, and one of the grantees in the deed of trust from Donnallys in October, '57, undertaking to convey all their property, particularly describing each parcel-but not mentioning the land in controversy with his conduct since sufficient evidence of actual notice? Is not the claim made in the original bill to set that deed aside, because it undertook to convey all the debtor's property, sufficient evidence that the original plaintiffs, and all creditors becoming parties afterward, knew their debtors had ceased to own the land in controversy? Did they not in the most solemn manner acknowledge the fact, and has not all their conduct since been in accordance therewith, until this cross bill, which was purely an after thought, was gotten up after having squandered and sacrificed the large assets of their debtors? |