because, in the given case, his debt was antecedent to the mortgage.1

§195. Must be Creditors of the Grantor.`

The creditors referred to in the statutes are creditors of the grantor in the unrecorded instrument. Thus, judgment creditors of one who fraudulently had title made to his wife, are not creditors of the wife, and her deed of such title to a bona fide purchaser is valid against them, though they have no notice of it by record or otherwise.3 So, where a mortgage is executed by the ancestor, its want of registry cannot be invoked by judgment creditors of the heir, who levy on the property as that of the heir. In Virginia and West Virginia, however, a broader definition is by statute given to the word "creditors," and it is made to embrace all creditors who, but for the instrument, would have a right to subject the property to their debt.5

$196. Only Lien Creditors Protected.

Whether the creditors mentioned in the recording acts be specified as lien creditors, or simply as creditors, the rule

1 Code of Ga., §1957; Andrews v. Matthews, 59 Ga. 466. But it is held that a junior judgment creditor is not entitled to take advantage of the fact that a mortgage has but one witness, or was not recorded within the statutory time. Lowe v. Allen, 68 Ga. 225; citing 60 Ga. 588; 62 Ga. 623-627.

In Barrett v. Barrett, 31 Tex. 344, it is said that only existing creditors were intended to be protected by the statute of 13 Elizabeth, and the present recording acts, and that the want of registry had no effect as against subsequent creditors. This distinction may be pertinent as relating to the question of fraud; but so far as notice is concerned, registry is of more practical consequence to subsequent than to existing

creditors.

2 Pierce v. Turner, 5 Cranch, 154; Maguiac v. Thompson, 7 Pet. 348; Morgan v. Elam, 4 Yerg. 375; Baldwin v. Baldwin, 2 Humph. 476.

3 Chaffe v. Halpin, 62 Miss. 1; and see Dixon v. Cook, 47 Miss. 226; Laughbridge v. Boland, 52 Miss. 558; Miss. Val. Co. v. Chicago Ry. Co.,

5S Miss. 846.

4 Westervelt v. Voorhis, 42 N. J. Eq. 179; Voorhis v. Westervelt, 43 N. J. Eq. 642; s. c. 3 Am. St. Rep. 315; 12 Atl. Repr. 533.

3 Code of Va. (1887), §2472; 79 Va. 147; Kelly's Rev. Stats. W. Va. (1878), ch. 96, §9. This was not the law under the act of 1792. Pierce v. Turner, 5 Cranch, 154-165.

obtains that the statutes apply to and protect only creditors who have acquired some character of lien upon or fixed interest in the property. The rule applies to personal as well as real property, unless the terms of the statute are to the contrary. The reason of the rule is that a general creditor has no higher equity than the purchaser under an unrecorded deed, who, if deprived of the property, would also be a creditor of the debtor grantor; and since the law does not make registry essential to the conveyance of title, the legal right of the purchaser must prevail, as also the equitable doctrine that specific equitable liens and interests in rem have priority over general claims and liens. From overweening confidence, it may be, in the debtor, the creditor has extended him credit; but by the same overweening confidence of the purchaser in his vendor, having acquired title to his land by deed, such purchaser may have neglected to record his deed. The policy of the law would be subverted if a creditor having no lien upon the property should yet be permitted to avail himself of the mere equal trust which he reposed in the vendor in giving him the credit to

1 Grace v. Wade, 45 Tex. 522–527; Lissa v. Posey, 64 Miss. 352; Pickett v. Banks, 11 Sm. & M. 446; Chester v.Grier, 5 Humph. 26; Hardaway v. Semmes, 38 Ala. 657; Center v. Bank, 22 Ala. 743; Ayres v. Duprey, 27 Tex. 607; s. c. 86 Am. Dec. 657; Nugent v. Priebasteh, 61 Miss. 402; Catlin v. Bennatt, 47 Tex. 166; Lash v. Hardick, 5 Dill. 505; Stevenson v. Tex. Ry. Co., 105 U. S. 703.

2 Overstreet v. Manning, 67 Tex. 657; s. c. 4 S. W. Repr. 248; Ransom v. Schmela, 13 Neb. 77; s. c. 12 N. W. Repr. 926; Jones on Chat. Mort., $245; Steward v. Beale, 7 Hun. 405; s. c. 68 N. Y. 629; Jones v. Graham, 77 N. Y. 628; Thompson v. Van Vetchen, 27 N. Y. 568; King v. Fraser, 23 S. Car. 543; Martin v. Rothschild, 42 Hun. 410. While the statute as to chattel mortgages avoids these instruments as against creditors with or without notice, it makes no change as to the character of debt to be thus protected; and hence the rule in Grace v. Wade, 45 Tex. 522. as to real property, must obtain. Overstreet v. Manning, supra.

The superior equity of a general creditor has in some cases been recognized. Sanger v. Guenther, 73 Wis. 354; Standard Co. v. Guenther, 67 Wis. 101; s. c. 30 N. W. Repr. 298; though his lien was not fixed until after the prior mortgage was filed. Thompson v. Van Vetchen, 27 N. Y. 568; Stewart v. Beale, 7 Hun. 405; Fraser v. Gilbert, 11 Hun. 634.

defeat a bona fide purchaser.1 In Virginia and West Virginia, by force of the terms of their recording acts, a more liberal rule obtains in favor of general creditors; and so, in a few other states where recording is by peremptory terms of the statute made essential to the validity of a deed, or the lien of a mortgage, the rights of general creditors have been held superior to an unrecorded conveyance of the kind so placed within the terms of the registry act.3

1 Barrett v. Barrett, 31 Tex. 344, 350; Ayres v. Duprey, 27 Tex. 607; s. c. 86 Am. Dec. 657; 2 Pom. Eq. Jur.. $721; Kelly v. Mills, 41 Miss. 267; King v. Fraser, 23 S. Car. 543; Button v. Rathbone, 43 Hun. 137.

Where the statute gives priority only to a lien evidenced by some instrument required to be recorded, it has been held that when lands are omitted from a mortgage by mistake, the mortgage may be corrected as against a subsequent judgment, which will be subject to the equities of the mortgage. Galway v. Malchow, 7 Neb. 285; Comp. Stats. of Neb. (1881), ch. 73, §16.

In the case of Barrett v. Barrett, supra, it is held in a dissenting opinion by Morrill, C. J., that a creditor whose claim has been filed and approved by an administrator, is a lien creditor of the estate, entitled to the protection of the recording act.

2 Dobyns v. Waring, 82 Va. 159; Guerrant v. Anderson, 4 Rand. 208; Cox v. Wayt. 26 W. Va. S07; Marsh v. Chambers, 30 Gratt. 299; Eidson v. Huff, 29 Gratt. 338; Bank v. Neal, 28 W. Va. 744; Sinclair v. Sinclair, 79 Va. 40.

3 Mayham v. Coombs, 14 Ohio, 428; Davidson v. Cowan, 1 Dev. Eq. 474; Davy v. Littlejohn, 2 Ired. Eq. 495; Dodd v. Parker, 40 Ark. 526; Fry v. Morton, 33 Ark. 203; Bercaw v. Cockerill, 20 O. St. 163; Bank v. Manufacturing Co., 96 N. C. 298; s. c. 3 S. E. Repr. 363; Sturgess v. Bank, 3 McLean, 140; Chamberlain v. Spargur, 86 N. Y. 603; s. c. 22 Hun. 437: Nellis v. Munson, 108 N. Y. 453, 457; s. c. 15 N. E. Repr. 739; McCoy v. Rhodes, 11 How. 131; Harang v. Plattsmier, 21 La. Ann. 426; Adams v. Dannis, 29 La. Ann. 315; Derbes v. Romero, 32 La. Ann. 283; Rochereau v. Delacroix, 26 La. Ann. 584.

The Arkansas, North Carolina and Ohio cases above relate to mortgages; the Louisiana cases to both deeds and mortgages, and the New York cases to deeds unacknowledged and not attested by witnesses.

In Tennessee the law in reference to creditors is substantially the same as in Virginia, the statute (Code, M. & V., $2399; Code Tenn. §2837, sub-div. 8) declaring that to be effectual against creditors, all mortgages and deeds of trust, of either real or personal property, must be properly executed and registered, or noted for registration. Lookout Bank v. Noe, 1 Pick. 21; s. c. 5 S. W. Repr. 433; Stanley v. Nelson, 4 Humph. 484; Lillard v. Ruckers, 9 Yerg. 64; Lyle v. Langley, 6 Baxt. 286; Butler v. Maury, 10 Humph. 420; Coward v. Culver, 12 Heisk. 541; Chester v. Greer, 5 Humph. 26; Green v. Goodall, 1 Cold. 412.

$197. Notice to 'Creditors.

In the states last referred to, where the unrecorded conveyance is regarded as absolutely void against creditors, actual notice of the unregistered instrument is held unavailing to affect their rights. By virtue of the statute it is said in a recent Virginia case, the previously existing contract being in writing and not recorded, was a nullity, so that quoad the judgment creditor, the land was still the judgment debtor's, and subject to its lien. As illustrating how entirely the protection thus accorded to creditors depends on the statute, it may be noted that as parol contracts are not within the Virginia acts, it is held that the title vesting in a purchaser under a valid contract of this kind is good against all the world except subsequent purchasers of the legal title for valuable consideration, without notice. "I speak now," said Mr. Justice Staples, "without reference to the recording acts. That the equitable estate of the purchaser is good against creditors of the vendor is incontrovertible. It has been over and over again decided that the judgment creditor can acquire no better right to the estate than the debtor himself has when the judgment is recovered. He takes it subject to every liability under which the bebtor held it, and subject to all the equi

1 Dobyns v. Waring, 82 Va. 159; Cowardin v. Anderson, 78 Va. 88; Gray v. Moseley, 2 Mumf. 545; and cases cited in the preceding section. 2 Richardson, J., in Dobyns v. Waring, 82 Va. 159; citing Code of Va. (1873), ch. 114, §5; Guerrant v. Anderson, 4 Rand. 208; Marsh v. Chambers, 30 Gratt. 299; Eidson v. Huff, 29 Gratt. 338.

"But our recording acts make no distinction between creditors with notice and creditors without notice. *** The recording acts, I admit, are founded in wisdom and justice; but it by no means follows that every instrument is to be made subservient to the policy of a registration system. It was said in the argument that Virginia is the only state beside Mississippi in which the right is conferred upon a creditor with notice of subjecting to his judgment the property in the hands of a bona fide purchaser. As the law is written, we must obey it. *** If the rights of a large class of purchasers, recognized by the law as valid, are to be sacrificed because of a failure to do an act so often impossible to be done, it must be by the declared will of the legislature in clear and unmistakable language." Staples, J., in Floyd v. Harding, 28 Gratt. 401-411.

ties which exist at the time in favor of third persons, and a court of chancery will limit the lien of the judgment to the actual interest which the debtor has in the estate. The creditor is in no sense a purchaser; he has no equity whatsoever beyond what justly belongs to his debtor; his claim is to subject to his lien such estate as the former owner has, and no more. 1

$198. Notice Good if Before Judgment Lien Obtained. The cases referred to in the preceding section to the effect that actual notice to a creditor is unavailing, constitute the exception and not the rule. The general rule is that actual notice is as effectual in the case of a creditor as in that of a purchaser, and that when the creditor has notice of a prior unrecorded conveyance by the debtor, at the time when he recovers his judgment, the lien of the judgment will be subordinate to the rights and equities created by the prior instrument. Notice, however, after the lien has attached comes too late, whether it be actual notice, or be given by a subsequent record of the prior conveyance. Possession by the grantee is held sufficient notice to creditors.4

1 Floyd v. Harding, supra, citing, Withers v. Carter, 4 Gratt. 407; Brown v. Pierce, 7 Wallace, 205; Roger v. Bonner, 45 N. Y. 379; Money v. Dorsey, 7 Sm. & M. 15.

2 Freiberg v. Magale, 70 Tex. 116, 119; City Nat. Bank v. Dayton, 116 Ill. 257; s. c. 6 West. Repr. 879; Pickett v. Banks, 11 Sm. & M. 446; Ayres v. Duprey, 27 Tex. 593; s. c. 86 Am. Dec. 657; Hart v. Farmer's Bk., 33 Vt. 252; Wyatt v. Stewart, 34 Ala. 716; Loughridge v. Bowland, 52 Miss. 546; Goddard v. Prentice, 17 Conn. 546; Garwood v. Garwood, 4 Halst. 193; Lawrence v. Stratton, 6 Cush. 163; Williams v. Tatnall, 29 Ill. 553; Priest v. Rice, 1 Pick. 164; Britton's Appeal, 45 Penn. St. (9 Wright), 172; Thomas v. Vanlieu, 28 Cal. 616; O'Rourke v. O'Connor, 39 Cal. 442; Hitz v. National Bk., 111 U. S. 722; Mead v. N. Y., etc., R. R. Co., 45 Conn. 199; Weld v. Madden, 2 Cliff. 584.

3 Nugent v. Priebatsch, 61 Miss. 402; post, §212; Taylor v. Doe, 13 How. (Miss.), 287; Hulings v. Guthrie, 4 Pa. St. 123; Ranney v. Hogan, 1 Tex. Un. Cas. 253; contra, Hubbard v. Walker, 19 Neb. 94; s. c. 26 N. W. Repr. 713.

4 King v. Paulk (Ala.), 4 So. Repr. 825; Noyes v. Hall, 97 U. S. (7 Otto), 34; Doyle v. Wade (Fla.), 1 South. Repr. 516; Cabeen v. Breck(21-Reg. of Title.)

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