The Chancellor.
The bill states that Gabriel Godfroy, on the 10th day of October, 1844, purchased the premises in question, situate on the River Raisin, of Angus Mackintosh, for $1,000 ; and that Mackintosh executed a deed to him, which was not recorded, and has since been lost. To secure the purchase money, Godfroy executed a bond and mortgage of the premises to Henry I. Hunt, the son-in-law of Mackintosh, — Hunt being an American citizen residing in Detroit, and his father-in-law, a British subject, residing in Canada, opposite Detroit. The bond and mortgage were made to Hunt, in consequence of the late war between the United States and Great Britain, and to prevent any difficulty in the collecting of the money. Godfroy took immediate possession of the premises, and he and his grantor, the complainant, have been in possession from that time to the present, and have erected valuable buildings, and made other valuable improvements. In 1835, Gabriel Godfroy sold to complainant. In 1827, Mackintosh, with his family, left Canada, and went to Scotland to reside, where he afterwards died. In July, 1835, Alexander Mackintosh, one of the heirs of Angus Mackintosh, conveyed the premises to Samuel Gerard of Montreal, who, April 25th, 1836, conveyed them to Disbrow. The deed from Alexander Mackintosh to Gerard was recorded, November 12th, 1835, and the one from Gerard to Disbrow, May 13th, 1836. The bill is filed against Disbrow, Gerard, and the heirs at law of Angus Mackintosh. Disbrow is the only one of the defendants that has appeared and answered, and the bill has been taken as confessed by the other defendants, all of whom, except Ann Hunt and Catharine Mackintosh, on whom the subpoena was personally served, are non-resident defendants, and have been brought into Court by advertisement under the statute.
Disbrow, in his answer, denies all notice of the conveyance from Angus Mackintosh to Gabriel Godfroy, and insists that both he and his grantor, Gerard, are bona fide purchasers, without notice.
The existence and loss of the deed from Angus Mackintosh to Gabriel Godfroy, are fully established by the positive testimony of Godfroy, and the voluminous circumstantial testimony in the case. But it is insisted that, under the ordinance of 1787, it was necessary that the deed from Mackintosh to Godfroy should be recorded, in order to pass the title. I do not so read the ordinance. It does not declare the deed shall be void, or the title shall not pass, unless it is recorded. The object of all registry laws is to protect subsequent bona fide purchasers. It would, therefore, be a harsh construction of the ordinance, where the grantee had neglected to have his deed recorded, to say it should, for that reason, be void between him and the grantor. There is nothing in the ordinance requiring such a construction to be given to it. 1 Blackford R. 162.
It is further objected that it does not appear from the evidence whether the deed was properly executed, or what premises, or what estate in them was conveyed. Godfroy states explicitly he purchased the farm in question from Angus Mackintosh, in 1814, and that Mackintosh executed to him a deed for it, which is lost; and that he was the owner of the farm in fee simple, from 1814 to 1835, when he sold it to complainant. It is true he says nothing about any witnesses to the deed. The question does not appear to have been asked him. There is, however, I think, sufficient evidence before the Court, to war rant the conclusion it was properly executed. The mortgage given at the same time, and which has been found since the witness was examined, appears to have been executed with all proper formality, and it is reasonable to suppose the same formality was observed in the execution of the deed. If there were no witness, it would be good in equity as a contract for the sale of the land, and, as such, might be enforced against the heirs of Angus Mackintosh.
By “an act in addition to an act entitled ‘ an act concerning deeds,’ ” adopted by the Governor and Judges of the territory of Michigan, June 9, 1819, all deeds previously given, and not recorded, were declared to be fraudulent and void against subsequent purchasers and mortgagees, unless recorded on or before the first day of December, 1821. To get rid of the legal effect of a subsequent conveyance first recorded, it is necessary to show the second grantee had notice of the prior conveyance when he took his deed, or that he has not paid a good and valuable consideration. Where the first person is in possession of the premises, and the second purchaser is aware of that fact at the time he purchases, that is sufficient notice to him of the rights of the first purchaser; and he must take the premises subject to all equities existing between his grantor and the first purchaser. Rood v. Chapin, ante, 79. Disbrow knew complainant was residing on the land when he purchased of Gerard. He therefore took his deed subject to all equities, if any, existing between complainant and Gerard. He was not a Iona fide purchaser without notice. Still, if his grantor was such purchaser, he is entitled to all his rights, and to that protection which the law would give Gerard. There is no evidence showing Gerard had notice of complainants’ title, when he purchased, or that he knew complainant was in possession of the pre mises. The bill has been taken as confessed against him; but as he is a non-resident defendant, and has not appeared, it is no evidence against him, much less against Dis-brow, his grantee, who has appeared, and put in an answer denying notice to his grantor, as well as to himself. The presumption of law is, that a subsequent purchaser, who has got his deed first recorded, is a bona fide purchaser without notice, until the contrary is made to appear.
There is another ground, however, on which the complainant is entitled to the relief he asks against the deed from Alexand er Macldntosh to Gerard. It is this. By reason of the adverse possession of complainant, when this deed, as well as the one from Gerard to Disbrow, was executed, the legal title did not pass. Bruckner v. Lawrence, MS. Sup. Court, March, 1843. It is unnecessary to inquire whether, if the legal title had been in Alexander Mackintosh, when he conveyed to Gerard, an equitable title would have passed by the deed, notwithstanding the adverse possession. It would not, so as to bar a prior equity.
The defendants must release to complainants, and pay costs.