Opinion. suit therein pending under the style of Green v. Smith and Others, wherein a petition was filed by the appellants to which the appellees were made defendants. The opinion states the case. Affirmed. Eppa Hunton, Jr., and Thomas Smith, for the appellants. G. D. Gray and Barbour & Rixey, for the appellees. CARDWELL, J., delivered the opinion of the court. This case is the sequel of the case of Bell v. Wood, 94 Va. 677, 27 S. E. 504. In November, 1842, George Ficklin purchased of John T. Green and two others, commissioners of the Circuit Superior Court of Culpeper county, in the suit of Green against Smith, a lot of land known as the "Coach Factory Lot," situated in the town of Culpeper, and gave his three bonds for the unpaid purchase money, each for $333.33, with one Hill as his surety, dated the day of the sale, and payable in one, two and three years, with interest from their date. The commissioners, pursuant to the decree under which they acted, conveyed the property to Ficklin, in which deed Mrs. E. H. Smith, the wife of William Smith, the owner of the property, united, so as to convey a title exempt from her contingent right of dower; and Ficklin reconveyed the property to one Fayette Mauzy, of Culpeper county, in trust to secure the payment of his purchase-money bonds, which trust deed was acknowledged before the clerk of the County Court of Culpeper county, and spread upon the records of the clerk's office of Culpeper County Court by one F. Mauzy, county clerk, October 23, 1843. The decree under which Ficklin purchased directed the commissioners of sale to make to the purchaser a deed to the property, and take from him a deed of trust on it to secure the purchase Opinion. money. The commissioners of sale reported that they had sold the coach factory lot to Ficklin; that they had conveyed it to him, and had taken the deed of trust above referred to to secure the purchase money, evidenced by his bonds; and the court ratified the action of the commissioners and confirmed their report. The deed to Ficklin from the commissioners does not appear to have been recorded in the clerk's office of Culpeper county, but the trust deed from him to Fayette Mauzy, trustee, refers to it as having been duly executed. Ficklin died in 1852, and soon thereafter, in the suit of Coons and wife against Ficklin, instituted for the settlement of his estate, several lots of land, among others the coach factory lot, subdivided into smaller lots (the lots now in question), were sold at public auction by one Hill, the executor of Ficklin, acting as commissioner of the court to make the sale, and were purchased by Brown, Wood, and Rixey. These sales were confirmed by the court, the purchase money paid, and the lots purchased were conveyed to the respective purchasers by a commissioner of the court appointed for the purpose, and by successive alienation these lots have come to the present owners, appellees here. The appellants are seeking to collect a large balance alleged to be due and unpaid on the Ficklin bonds, above mentioned, and to that end to subject the lots of land now in the possession of appellees, who claim to be purchasers for value, without notice of any lien in favor of appellants. They set up other defences, but in the view we take of the case it is only necessary for us to consider the question whether or not appellees are purchasers without notice of the lien asserted by appellants. First, appellants claim the right to subject the property in question to the payment of their debt by virtue of the deed of trust from George Ficklin to Fayette Mauzy, trustee; while appellees contend that this deed was never properly acknowl Opinion. edged or admitted to record, and that, although it may actually have been spread upon the records, it is void as to them. The ground upon which appellees rest their contention is that Fayette Mauzy, the trustee, and grantee in the deed, and F. Mauzy, county clerk, who certifies the acknowledgment of George Ficklin, the grantor, and admitted the deed to record, was one and the same person. When the case was here upon the former appeal (Bell v. Wood, supra), it was said in the opinion: "It cannot be assumed that an officer has been guilty of improper conduct in the discharge of a duty incident to his office, though such a fact may be shown by proof when put in issue." This issue was made up when the case went back to the Circuit Court, and upon the proof taken it appears that Fayette M. Latham is the executor of Fayette Mauzy, and as such is a party to the suit of Coons and wife against Ficklin, etc., and that in the petition filed by him and appellants in that suit to enforce the payment of the debt here asserted it is alleged that said Fayette Mauzy was the trustee in the deed in question. George D. Gray, a resident of Culpeper county all his life, a practitioner of law of high standing, and for a number of years attorney for the Commonwealth in that county, testifies that Fayette Mauzy was the clerk of the. County Court of Culpeper county from 1839 to 1852; that he always signed his name as F. Mauzy; that the deed of trust was acknowledged in 1843, during the time that Mauzy was clerk; that he (witness) knew Fayette Mauzy from the year 1840 to his death, in 1852; that he was trustee in many deeds, and frequently, as clerk, took the acknowledgment of the grantor in the deed to himself, as the records in the office will show; that he (witness) was well acquainted with the people of the county, and during the time from 1843 to the death of Fayette Mauzy there was no other VOL. CI-8 Opinion. Fayette Mauzy or F. Mauzy known to him in the county of Culpeper. From this uncontradicted proof there can be no sort of doubt that Fayette Mauzy, trustee in the deed from George Ficklin, and F. Mauzy, county clerk, who took and certified the acknowledgment of the grantor, were one and the same person. It was ably argued, however, that, although it might be true that F. Mauzy, county clerk, who took the acknowledgment, and Fayette Mauzy, the grantee in the deed, were one and the same person, yet, as the act of taking the acknowledgment was but a ministerial act, it ought not to invalidate the recordation of the deed, and in support of this contention a number of well-reasoned decisions by courts of other States are cited; but as this question is no longer an open one in Virginia, it having been expressly decided adversely to appellants' contention in Davis v. Beazley, 75 Va. 491, since cited by this court in a number of cases, we deem it unnecessary to review the decisions of other courts relied on by appellants. In Davis v. Beazley, supra, it was held that a grantee in a deed, or a beneficiary under it, is not allowed, as an officer, to take an acknowledgment of the deed by the grantor with the view to its registration. The certificate of such acknowledgment is invalid as authority to admit the deed to record, and hence a recordation based upon it is without effect as notice by construction under the registry laws; that such a deed is good between the parties, and, if not duly admitted to record, is void only as to creditors and subsequent purchasers. Section 2465, Code. This statute is practically the same with reference to registry of contracts, deeds, etc., touching the sale and conveyance of property that was in force when the trust deed in question here was taken and spread upon the records of the County Court of Culpeper county in 1843. It not being denied that appellees are purchasers for value, Opinion. the trust deed under which appellants claim a lien upon their property is unquestionably void as to them. It is true, as appellants further contend, that at the time of this transaction-that is, at the time of the sale of the coach factory lot to George Ficklin in 1842-the common-law implied vendor's lien was in existence, it not having been abolished until 1850, and it could be enforced against a purchaser for value with notice, either actual or constructive; but, even as between the parties, vendors and vendees, it might be waived by taking other securities, or a security of different form. In Redford v. Gibson, 12 Leigh, 343, the opinion by Allen, J., says: "This lien (implied vendor's lien) is, however, a creature of a court of equity, founded upon the supposed intention of the parties; and whenever, from the circumstances of the case, it appears that the parties did not contemplate such a lien, it will not be established. There is strong reason in our country, where all the incumbrances are required to be recorded, not to extend this secret equitable lien beyond the principles already established. The records are universally looked to as disclosing all charges upon the property. Prudence dictates the propriety in all cases of retaining an express lien where the legal title is parted with. If the vendor, instead of adopting this course, chooses to rely on his secret equitable lien, he should be cautious not to do anything leading to the inference. that no such lien was intended to be retained." As we have seen, the commissioners of the sale in Green against Smith were clothed with full authority to convey the coach factory lot to George Ficklin, to take from him a deed of trust thereon to secure the unpaid purchase money, and, having exercised this power and authority, their action was ratified and confirmed by the court. The deed of trust taken, being valid as between the parties thereto, could only operate as constructive notice to purchasers from Ficklin from its recordation, as required by the registry laws, or from the time |