sufficient to put the purchaser on inquiry. It has been held that a deed delivered to an agent as an escrow, and by him delivered to the grantee contrary to the conditions, passes a title voidable only. Blight v. Schenck, 10 Penn. St., 285; Pratt v. Holman, 16 Vt., 530. Without deciding that Bailey's recorded deed to Crim was voidable only, I hold, for the reasons already given, that Moorman cannot be postponed in favor of Bailey. Blight v. Schenck, supra; Haven v. Kramer, 41 la., 382. Exceptions overruled and decree in accordance with the master's finding.

KESNER v. TRIGG.

(8 Otto, 50-56. 1878.)

APPEAL from U. S. Circuit Court, Western District of Virginia.

STATEMENT OF FACTS.- Mrs. Kesner filed a bill to enjoin the sale under a deed of trust, executed by her husband, conveying a tract of land of which he held the legal title, but which she claimed as her own, because it had been obtained by exchanging for it her land, and that there had been a distinct understanding between her and her husband that she would claim none of his property and he none of hers. The land was conveyed to her husband alone in 1851. Kesner, the husband, about 1872 became a bankrupt; the deed of trust was executed in 1862. The bill sought to establish Mrs. Kesner's claim to the whole tract of land. Upon the hearing below the bill was dismissed. Further facts appear in the opinion of the court.

Opinion by MR. JUSTICE SWAYNE.

The bill, so far as it relates to the debt claimed to be owing to the estate of John C. Greenway, deceased, secured by the deed of trust to Bekem, cannot be sustained for several reasons. It is silent as to the objection of usury. In Virginia, a party cannot avail himself of this defense without averring and proving it; and in such case he is required by statute to pay the principal of the debt. Brown v. Toell, 5 Rand. (Va.), 543; Harnsbarger v. Kinney, 6 Gratt, (Va.), 287. It is asserted that the consideration of the note was a loan of Virginia and North Carolina bank-notes; that at the time of the transaction they were largely depreciated; that the value of the consideration should be fixed by scaling this currency; and that the amount to be paid on the note should be reduced accordingly. But, upon looking into the record, we find no evidence whatever upon the subject. The depreciation may have been more or less, or there may have been none. We cannot, as is suggested, take judicial notice of the facts, whatever they may have been. We must take the record as it is, and we cannot look beyond it.

§ 588. The trustee and cestui que trust are purchasers, and are not affected by any infirmity of the grantor's title of which they had no notice.

No notice of any infirmity in the title of Kesner to the premises is brought home either to the trustee or to the cestui que trust, and it is denied by the latter. Like a mortgagee, they are regarded as purchasers; and, in this case, they must be considered as such, bona fide, and without notice of the adverse rights of the appellant, if any she have. Wickham v. Lewis, 13 Gratt. (Va.), 427; Evans v. Greenhouse, 15 id., 156. This part of the case may therefore be laid out of view. The premises in question are clearly liable for the amount secured by the deed of trust. The position of the judgment creditors is dif ferent. They were not purchasers, and they can take by virtue of the liens of their judgments only what Kesner was entitled to. 15 Gratt., supra. It remains to consider the claim of the appellant touching the premises in contro

versy. It is clear that she inherited from her father one-third of Lyon's Gap farm, and received, as a distributee of the estate of her father and mother, several slaves; that she and Kesner bought another third of the farm from her sister, Mrs. Moffett, and took from Asbury, the attorney of her sister and her sister's husband, a bond for the execution of a deed. The purchase money was procured by the sale of slaves which came to Kesner by the appellant. On the 26th of May, 1852, the appellant and her husband, Kesner, conveyed the two-thirds of the Lyon's Gap farm to Sheffy, as executor of Hull. On the 25th of January, 1851, Dutton and wife conveyed to Kesner alone the Cedarville farm, which is the property in controversy. The transaction was an exchange of lands; $600 was paid to Dutton, as the difference in value of the two tracts. Kesner raised the money in the same way as that before mentioned. The appellant is neither named nor referred to in the deed to her husband. On the 29th of January, 1862, Kesner alone executed the trust deed to Bekem. It embraced the entire Cedarville property. The tract contained about a hundred and fifty acres. In his first inventory in bankruptcy Kesner gave in half of this farm and his life interest in the other half, which was stated to belong to his wife. In an amended schedule, subsequently filed, he gave in all his interest in the entire tract, which he alleged was conveyed to him chiefly in consideration of the deed to Sheffy of his wife's lands near Lyon's Gap. He stated that she claimed one-half of the tract, and that if her claim were sustained, then he surrendered his life interest in that half. The whole tract must be sold to satisfy the debt secured by the deed of trust. If there should be any surplus, the appellant's rights will be the same with respect to that fund that they were as to the land. Jones v. Lackland, 2 Gratt. (Va.), 81; Graham v. Dickens, 3 Barb. Ch. (N. Y.), 1; Olcott v. Bynuin, 17 Wall., 44.

8589. A post-nuptial contract on sufficient consideration, partly executed, is valid in equity.

If there were no valid contract between the appellant and her husband, as claimed, the slaves- by the law of Virginia being chattels - were the absolute property of the latter, and at his death would have been assets in the hands of his personal representative. So by the common law, if the husband and wife sell and convey her land, and he receives the consideration money without any reservation of rights on her part, the money belongs to him. Hamlin v. Jones, 20 Wis., 536; Schouler, Domestic Relations, 120. No question is raised as to the statute of frauds, and we need not, therefore, consider that subject. It is now well settled that a post-nuptial contract made upon sufficient consideration, and wholly or partly executed, will be sustained in equity. Gosden v. Tucker, 6 Munf. (Va.), 1; Livingston v. Livingston, 2 Johns. Ch. (N. Y.), 537; Bullard v. Briggs, 7 Pick. (Mass.), 533; 2 Kent Com., 139; Cord, Married Women, secs. 36, 37. The counsel on both sides have argued the case upon the hypothesis that the contract set out in the bill, if made, was valid. The contention between them is only as to the sufficiency of the proof of its existence. Our further examination of the case will be upon this basis, and our remarks will be confined to that subject. The alleged contract is thus set out in the bill. Speaking of her marriage to Kesner, the appellant says: "It was then agreed, and has always since been agreed and understood between herself and her husband, that she was to take no interest in his property, and he was to take no interest in hers. On their marriage they settled on a farm owned by Mr. Kesner in this county of Washington, and in pursuance of this agreement she relinquished her rights in this land."

With reference to the conveyance by herself and Kesner to Sheffy, executor of Hall, and the conveyance by Dutton and wife to Kesner, she says: "Your oratrix being assured this was an exchange of land, and that she would thereby acquire an interest in this land exchanged for her land, assented to it. Your oratrix never would have consented to a sale of her land for money, or to any arrangement which would have deprived her of her inheritance in her land, and have her fee-simple converted into a mere dower right. With this distinct understanding between her husband and herself, and believing she would have in the Cedarville land the same rights she had in her own land, she assented to this arrangement. But, being a feme covert, and ignorant of business, she intrusted the whole management of her business to her husband." She claims one-half of the land free from her husband's tenancy by the curtesy, and the reversion of one-half of the residue at her husband's death.

While Kesner, in his schedule, speaks of his wife's means as having chiefly paid for the property in question, he is wholly silent as to any contract between them. She claims three-quarters, while his concession is only to the extent of one-half; and he does not put that admission upon any ground of right growing out of a contract. They seem not to have understood her claim alike. His deposition was subsequently taken, but he was asked no question upon the subject. In Dutton's deposition this question was asked: "Was the trade and exchange intended to preserve to Jane Kesner the same rights in the Cedarville land which she had in the Lyon's Gap land?" Ans. "This was my understanding of it." From whom, or in what way, he got his understanding is not disclosed, James C. Porterfield, who married the sister of the appellant, was present at her marriage to Kesner, and had known them both thirty years, testified fully as to the means which came to Kesner in right of his wife. He was asked no question, and said nothing, as to any contract between them. Mrs. Porterfield, the sister, also testified. At the close of her deposition this question and answer are found: "After the trade for the Cedarville land, did you hear Mrs. Kesner claiming it as her land?" Ans. "I don't recollect hearing her claim it as her land."

There is no other testimony in the record bearing in any wise upon the subject. It is, perhaps, not a violent presumption that the appellant knew in 1852 that Dutton and wife conveyed the land to her husband alone, and that she knew he treated it as exclusively his in 1862 by conveying it, without her concurrence, to Bekem, in trust, to secure the debt to Greenway. It does not appear that she set up any special claim, or alleged the contract set up in her bill, until Kesner went into bankruptcy in 1873. But irrespective of those deeds, it is too clear to admit of doubt that the contract set forth in the bill is wholly unsustained by the proofs in the record. See Harris' Ex'rs v. Barnett et als., 3 Gratt. (Va.), 339.

Decree affirmed.

§ 590. A mortgagee in a mortgage given to secure a prior indebtedness is not a purchaser for value, and his lien is postponed to that of a prior unrecorded mortgage. By bee v. Hawkett, 12 Fed. R., 649, 654.

$591. In New York a mortgage for a pre-existing indebtedness is not protected by a prior record against a non-recorded mortgage for value, that is, for some new consideration advanced at the time. But as between two mortgages - one for a past indebtedness, and one for an indebtedness to be subsequently incurred, the one for the past indebtedness must have precedence, if it be first recorded and taken without notice of the other. National Bank v. Whitney, 13 Otto, 99, 104.

§ 592. A trustee in a deed of trust is, like a mortgagee, a purchaser, within the meaning of the recording laws; he occupies the same ground with respect to notice, actual or con

structive, of any outstanding equities that a mortgagee does. New Orleans, etc., Co. v. Montgomery, 5 Otto, 18.

ance,

§ 593. A mortgage for purchase money, executed simultaneously with the deed of conveyis not subject to dower, though dower be not released. If the instruments be delivered at the same time, it does not matter that they were executed on different days. Mayburry v. Brien, 15 Pet., 21.

§ 594. Dower in mortgaged premises.- A mortgage is not an absolute alienation of an estate which prevents the attaching of the right of dower so as to preclude dower in behalf of the mortgagor's widow attaching to the mortgaged premises and the improvements thereon made after the mortgage. Powell v. Monson Manuf. Co., 3 Mason, 463.

§ 595. Good without record.- A mortgage is good against the mortgagor without record. Moore v. Thomas,* 1 Or., 201.

§ 596. Record of assignment.- An assignee of a mortgage is not bound to record his assignment in order to protect himself against subsequent purchasers. The record of the mortgage is sufficient notice of its existence without the record of the assignment. Oregon Trust Co. v. Shaw, 5 Saw., 336 (§§ 752-755). See § 872.

§ 597. A mortgage recorded before the filing of a mechanic's lien has priority. Moran v. Schnugg, 7 Ben., 399, 400.

§ 598. Under a statute of Indiana, providing that a mortgage not recorded within ninety days after its execution is fraudulent as against subsequent bona fide purchasers, a mortgage recorded after the time limited is constructive notice to all persons who purchase thereafter. Wyman v. Russell,* 4 Biss., 307.

§ 599. Louisiana.- A decree of the proper court establishing a mortgage under a special act of the state of Louisiana, for restoring records destroyed by fire, operates, when recorded, as a reinscription of the mortgage. Hunt v. Innis,* 2 Woods, 103.

§ 600. In this state a notarial act confirming a mortgage by conveyance, and recorded in the proper office, has effect as a mortgage. Ibid.

§ 601. In Louisiana a mortgage of lands must be inscribed in the proper office, and, except in case of a minor's mortgage, reinscribed within ten years from the date of the original inscription. Without such reinscription the mortgage becomes, after that time, without effect as to all persons other than the parties to it, though as against such parties and their heirs the mortgage is valid without either inscription or reinscription. Bondurant v. Watson,* 13 Otto, 281; Cucullu v. Hernandez,* 13 Otto, 105.

§ 602. Moreover, purchasers with knowledge of an existing mortgage are affected by it though it be not inscribed and reinscribed in accordance with the code; for here, as elsewhere, such knowledge is equivalent to notice by registry. It is the effect of the inscription when not renewed which ceases, not the effect of the mortgage. The object of requiring reinscription is to dispense with the necessity of searching for evidence of mortgages more than ten years back. Patterson v. De La Ronde, * 8 Wall., 292.

§ 603. In Michigan the act of April 12, 1827, relating to "deeds and other conveyances," and the act of same date " concerning mortgages," are not repugnant, and a mortgage of land situate in Detroit is valid, if recorded in compliance with either. Beals v. Hale,* 4 How., 37. § 604. In Mississippi deeds of trust and mortgages are valid as against creditors and purchasers, only from the period at which they are delivered to the proper recording officer. By the law of the same state a judgment proprio vigore operates a lien upon all the property of a defendant from the time that it is rendered. Therefore, a judgment rendered between the time of the execution and the recording of a mortgage is a lien upon the land prior to the mortgage. Taylor v. Doe, 13 How., 287, 292.

§ 605. In Ohio, under statute of 1831, a mortgage takes effect only from the time it is recorded. This statute makes the recording of a mortgage essential to its due execution, and shuts out equitable liens in the form of unrecorded mortgages. Where a judgment is entered one day before the recording of a mortgage it constitutes a prior lien to the mortgage. Sturgess v. Bank of Cleveland,* 3 McL., 140.

§ 608. In Pennsylvania a mortgage becomes effective as between the parties eo instanti upon delivery. Though not recorded it is good against an assignee for the benefit of creditors, the heirs of the mortgagor, and every one claiming under the mortgagor who had actual notice thereof before his rights attached. Curry v. McCauley, 11 Fed. R., 365, 369.

§ 607. In Texas, judgment creditors who levy executions on lands acquire a lien superior to that of an unrecorded mortgage of which they have no notice, and the purchaser under such execution succeeds to all the rights of creditors, although the mortgage may be recorded before the sale. Stevenson v. Texas R'y Co., 15 Otto, 703, 707.

§ 608. The recording laws of Virginia, making deeds of trust and mortgages void for failure to record them, may be taken advantage of by a trustee of an insolvent debtor in the District of Columbia. Bank of Alexandria v. Herbert,* 8 Cr., 36.

§ 609. A deed of trust is technically a deed, and its execution and acknowledgment in such manner and form as are required by statute in the case of deeds is sufficient. v. Atlantic & Gulf R. Co., 3 Woods, 481, 487.

Branch 610. The clause creating the lien prevails as to the interest conveyed. Thus a mortgage of an undivided fourth part of certain lands is not enlarged by a recital in the description as Ripley v. Harris, 3 Biss., 199 (§§ 552-555).

being one undivided half part.

§ 611. A mortgage attested by

one witness under a statute requiring two witnesses is good

in equity as between the parties. Moore v. Thomas,* 1 Or., 201.

§ 612. Acknowledgment.- A mortgage is not notice to parties subsequently dealing with the property, unless acknowledged according to the terms of the statute. Branch v. Atlantic & Gulf R. Co., 3 Woods, 487.

§ 613. A notary public authorized to take acknowledgments may take and certify an acknowledgment of a deed of trust, although he is interested as a beneficiary in the trust. National Bank of Fredericksburg v. Conway, 14 N. B. R., 513.

§ 614. A mortgage by a married woman of her separate property, regular in appearance, and bearing her genuine signature, with a proper certificate of acknowledgment, can be impeached only by clear and convincing proof of fraud. Insurance Co. v. Nelson,* 13 Otto, 514.

§ 615. Certificate not conclusive.— In Minnesota, a certificate of acknowledgment is not conclusive. It may be shown that the deed when acknowledged was void by reason of its containing material blanks. Drury v. Foster,* 1 Dill., 460.

§ 616. No relief in equity.- Where a creditor fails to have his mortgage recorded, and thereby loses his priority as against other creditors, he can have no relief in equity. Kurtz v. Hollingshead,* 3 Cr. C. C., 68.

§ 617. Mortgagee not bound to give personal notice.- Having recorded his mortgage, the mortgagee is not bound to give personal notice of his mortgage to one who purchases of the mortgagor; and a delay for ten years, or for any other period less than the statute period of limitation. to make any claim of the purchaser under the mortgage, does not impair his rights under the mortgage either at law or in equity; and the fact that the mortgagor has in the mean time become insolvent does not prejudice his claim upon the property. Dick v. Balch, 8 Pet.. 30.

$ 618. Junior mortgage first recorded.

By the laws in force in Utah in 1873, a junior mortgage taken without notice of a prior mortgage, actual or constructive, and first recorded, is to be preferred in its lien to a mortgage prior in execution but subsequently recorded. Neslin v. Wells,* 14 Otto, 428.

$619. The maxim qui prior est tempore potior est jure only applies in cases in which the equities are equal. Ibid.

XI. NOTICE AS AFFECTING PRIORITY.

SUMMARY- Recitals in deeds, §§ 620, 621.- Notice by possession, § 622.

§ 620. A recital in a deed of land that the premises are subject to a certain mortgage estops the grantee from denying the lien of the mortgage, though the description in that is defective. Reeves v. Vinacke, §§ 623–626.

§ 621. So, also, purchasers from such grantee are bound by the recitals in the deed to the grantee. Purchasers are bound by the recitals contained in any of the deeds through which they claim title. Ibid.

§ 622. The record of a deed is notice to creditors and subsequent purchasers; and actual, visible and open possession is in Illinois equivalent to registry. Noyes v. Hall, §§ 627, 628. [NOTES.-See §§ 629–633.]

REEVES v. VINACKE.

(Circuit Court for Minnesota: 1 McCrary, 213–217.)

STATEMENT OF FACTS.- Suit to correct a mistake in a mortgage and to foreclose it. The mistake was the omission of the words "of the southwest quarter," so that as it stood the description indicated a body of land in which the mortgagor had no interest whatever. Jordan, the mortgagor, afterwards conveyed to Vinacke, with notice of the mortgage expressed in the deed. Vinacke conveyed to Kennedy, who also had notice of the mortgage, but his grantees, George and Horace Jewett, had not actual notice.