Irvine v. Campbell , 6 Binn. 118 ( 1813 )

Tilghman C. J.

After stating the case, delivered his opinion.

It has been decided by this Court that a purchaser at sheriff’s sale is protected by the recording act., against all conveyances not recorded, of which he had no notice. The question will be then, whether the defendant stands in the situation of a purchaser without notice. In examining this point, we must distinguish between the deed from Campbell to Milford, and the other writing executed by Milford on the same paper with the deed. As the plaintiff claims under the deed, and cannot make out his title without it, he is bound to take notice of every part of it. Now it appears on the face of this deed, that part of the purchase money was not due at the time when the' defendant purchased the right of Milford from the sheriff. This was sufficient notice that part of the purchase money was unpaid, for he ought not to have supposed that it was paid before it was due. The seller of land, although he conveys it, retains an equitable lien against the purchaser and all claiming under him with notice that the purchase money is unpaid. For so much therefore of the purchase money in this case, as by the terms of the deed was not payable until after the defendant’s purchase from the sheriff, the plaintiff had a lien. It was urged on the part of the defendant, that the plaintiff had lost his lien by delivering possession to Milford., because the land was taken up from the Commonwealth, not by warrant or other written title, but on terms of improvement and settlement. But I do not think so. It was incumbent on the defendant, when he purchased Milford title, to look farther than to the bai'e possession. Seeing a mill and valuable improvements, he should at least have enquired whether thp settlement had been commenced and continued-by Milford. He ought to have known that nothing is more commoh than for one man to make an improvement, and sell it to another, so that before the expiration of the five years required by law for the continuance of the settlement, the land may have passed through several hands. In short, if he had exercised common prudence, he would have known that the title did not originate with Milford, but was derived from Campbell. Let us now consider the other writing signed by Milford., giving the plaintiff a lien for the xvhole purchase money. There was no proof that the defendant ever knew of that writing. It was quite a distinct thing from Campbell’s deed, although written on the same paper, not having been executed till upwards of three years after it. It falls therefore within the provision of our act for recording of deeds, (18th March 1775,) by which all deeds any way affecting land in law or equity, are directed to be recorded within six months after the execution thereof, otherwise they shall be adjudged fraudulent and void against any subsequent purchaser for valuable consideration. The plaintiff then had no lien in consequence of this writing; so that his lien must be confined to that part of the purchase money which on the face of his deed to Milford was not due at the time of the defendant’s purchase. But the president of the Court of Common Pleas gave it in charge to the jury, that the plaintiff had a lien for the whole purchase money. In that he went too far. I am therefore of opinion that the judgment should be reversed, and a new trial ordered.

Ye ates J. was prevented by sickness from hearing the argument, and gave no opinion. Brackenridge J« concurred with the Chief Justice.

Judgment reversed.