Preston's Adm'r v. Nash

Citations

• 76 Va. 1
• 1881 Va. LEXIS 68

Syllabus

<p>Priorities—Unrecorded trust deed—Purchaser for value without notice—• Case at bar.</p> <p>In April, 1850, W ST conveyed real estate to secure debt to P, but the deed was not recorded until 1858. In March, 1851, W 17 sold same estate to SHH, who took and held possession continuously and notoriously, under his contract, from the date of his purchase, and paid the price, but received no conveyance ; and had no notice of the trust deed until March, 1861, when the trustee advertised the sale thereof. SHH enjoined the sale. Court below decreed that the contract of purchase had priority over the deed of trust, and perpetuated the injunction. On appeal—</p> <p>Held (by whole oowrt):</p> <p>The purchaser hath priority over the creditor, under the circumstances of this case, and the decree should be affirmed. '</p> <p>Held (by Christian and Anderson, Xs):</p> <p>1. Under Code 1873, ch. 114, § 5. it is not necessary that a purchaser for value, claiming against an unrecorded deed of trust, should have taken a conveyance of the legal title; it is sufficient if he has the best right to call for it. Doswell v. Buchanan's ex'ors, 3 Leigh, 365, criticised.</p> <p>2. A complete purchaser is one who has paid the purchase money, and who, though he has not received a conveyance of the legal title, is entitled to call for it.</p> <p>Held (by Staples and Buries, J's):</p> <p>The trust creditor P is equitably estopped by his conduct from setting up the lien of the trust deed against S H N; and whilst they • reached the same results as were reached by Christian and Anderson, J’s, they did so by a different process of reasoning.</p>