of the statute, and his title must prevail against Leland's unless there is some other difficulty in the way.

There is no difficulty arising out of any actual notice of the adverse title. The notice which Fitzhugh, the immediate grantee of Helm, had, does not affect any one purchasing under him without notice: Jackson v. Elston, 12 Johns. 452; Varick v. Briggs, 6 Paige, 323; Jackson v. Van Valkenburgh, 8 Cow. 260; and it is pretended that the plaintiff or Smith, whose title he has acquired, were not bona fide purchasers, so far as this point is concerned.

It is said that all the conveyances, from Helm down to the plaintiff, must be recorded before the prior one to Leland and Skinner, in order to bring the case within the recording act; and inasmuch as the deed from Fitzhugh to Thornton, constituting one link in the chain, does not appear on the records, it is insisted that Leland's title must prevail. It is true, I believe, that under the statute a prior recorded deed is notice only to a subsequent purchaser from or under the same grantor, and consequently that such a purchaser only is within the protection of the statute if the prior deed is not recorded: Raynor v. Wilson, 6 Hill, 469; Murray v. Ballou, 1 Johns. Ch. 566; Stuyvesant v. Hall, 2 Barb. Ch. 151; but I do not find any authority for saying that all the conveyances in the chain of the junior title must be recorded, when the last grantee asserting such title is himself a purchaser in good faith, and has his own deed recorded in due time. In the present case, the plaintiff not only traces his title in fact back to Helm, the common source, but the record shows Helm to have been the source, although one of the conveyances in the series is not recorded. The deeds from the trustees of Smith to the plaintiff, and from Thornton to Smith, which were duly recorded, both describe the premises as conveyed by Helm to Fitzhugh, and by Fitzhugh to Thornton on the fifteenth of September, 1835; the deed to Thornton being the one not on record. If, therefore, the plaintiff examined the title when he purchased, the record would carry him back to Helm as the origin. The plaintiff, therefore, I have no doubt, must be regarded as a subsequent purchaser under the same grantor as Leland, and having first recorded his own deed, he is protected both by the letter and policy of the act.

But a subsequent grantee, to entitle himself to the benefit of the statute, must not only buy without notice, and put his deed first on record, but he must also purchase for a valuable consideration. I think the plaintiff must be regarded as such a

purchaser. He and two others were jointly the attaching creditors of Smith, and on the sale of the premises by the trustees, he alone was the bidder and buyer. There was no other property attached and sold, and consequently all the expenses of the proceeding were payable out of this bid. Beyond that, the plaintiff either paid the money over to the trustees, or applied his bid in extinguishment of so much of the debt; and in that case he was of course accountable to his associates for two thirds of the amount. His relations were therefore changed by the transaction, and he must be deemed a purchaser for a valuable consideration.

Some objections were made on the trial to the validity of the proceedings on the attachment against Smith, under which the plaintiff claims title. One of these was, that the appointment of the trustees was not recorded within one month from the time it was made, as the statute requires: 2 R. S. 12, sec. 61. Another was, that the report of the judge before whom the proceedings were had was not made and filed within the time directed: Id. 13, sec. 68. These statutes are directory merely, and the omission to comply with them strictly does not vitiate the proceedings. Another objection was that the attachment itself was not shown. But the judge's report of the proceedings recited the process as issued by him in due form, and the statute declares that such report "shall be conclusive evidence that the proceedings stated therein were had" before the officer. Such being the effect given by statute to the report of the judge, it was unnecessary to go behind it for proof of any matter therein set forth. Some other objections were mentioned, but they do not require a special consideration. On examination of the proceedings, and comparing them with the statutes under which they were had, there appears to be no doubt of their validity. The point was made on the trial that the deed from Fitzhugh to Thornton, constituting one of the links in the plaintiff's title, was void, as against the title of Leland, on the ground that it was not duly acknowledged, and had no attesting witness. The statute, 1 R. S. 738, sec. 137, declares that a deed "not so attested shall not take effect as against a purchaser or incumbrancer until so acknowledged." Such a deed is, however, good between the parties to it, and we think it is only a subsequent purchaser or incumbrancer who can take the objection. If the formalities of attestation or acknowledgment had been duly attended to, still the prior conveyance (if such we call it) to Leland and Skinner would prevail, but for the operation of the

recording statute. The section referred to clearly implies that the deed would take effect against a purchaser or incumbrancer, if acknowledged or attested; but as such could not be the effect as against a prior conveyance or incumbrance, the inference would seem to be plain that the statute has no application to such a case.

Some other questions were presented on the argument, but if they were all determined in the defendant's favor, it would not change the result. Under the views which have been stated, the plaintiff made out a title to the premises, and the finding and judgment in his favor were therefore right,

The judgment should be affirmed.

HUBBARD, J. The plaintiff is entitled to recover in this action, provided he, or any one through whom he derived title, can be regarded as a purchaser of the premises on which the trespass was committed, in good faith and for a valuable consideration. Whatever estate Leland may have had, whether an absolute title to one half, and a power coupled with an interest as to the other half, or whether the power extended to the entire premises, it was equally subject to the operation of the registry act.

The question then is, Was the plaintiff or his predecessors in title, or any of them, a bona fide purchaser for a valuable consideration? The plaintiff can stand upon his own purchase, or that of any one through whom he traces title back to the common source. If any one of them stands in the attitude of a bona fide purchaser, and is entitled to the protection of the registry act, then the plaintiff should recover, as the conveyance to Leland and Skinner was not recorded until after those under which plaintiff derives title, with the exception of the one to Thornton.

Fitzhugh was not a bona fide purchaser; he had actual knowledge of the outstanding conveyance to Leland and Skinner. The conveyance to Thornton was never recorded, and he, therefore, would not be protected against the prior conveyance. But Thornton conveyed to Smith, from whom the plaintiff immediately derives title. This conveyance, which is in the ordinary form, expresses a consideration of two thousand dollars, and was properly acknowledged and recorded. There is no pretense that Smith knew of any outstanding title or equity in Leland and Skinner. He purchased in good faith, and the receipt of the consideration in the deed of his grantor is prima facie evidence of payment of the sum expressed: Jackson v. McChesney, 7 Cow. 30 [17 Am. Dec. 521]. Under the recording act, there

fore, Smith was presumptively a bona fide purchaser for a valuable consideration, and the plaintiff succeeded to all his rights. The premises being wild and unoccupied land until after the time the plaintiff acquired his title, there is no ground for any constructive notice of an outstanding title.

It was insisted, upon the argument, that the plaintiff's title must fail because of the want of a link in the chain; because the deed from Fitzhugh to Thornton was not acknowledged, and had no subscribing witness, as required by the statute: 1 R. S. 738, sec. 137. The delivery of the deed signed by Fizhugh was not disputed. It seems to me that neither the defendant nor Leland and Skinner stand in a position to raise any question under the statute. The statute only applies to subsequent purchasers, and not to those deriving title from the main grantor prior in time. A conveyance which has no subscribing witness, and which is not acknowledged at the time of its delivery, is not rendered ipso facto void by the statute; it is simply declared to have no effect as against a purchaser or incumbrancer, until acknowledged. The deed operates to transfer the title, as between the parties, subject to rights subsequently acquired by third persons.

In view of the right of the plaintiff, under the title of Smith, it may not be essential to inquire whether he can himself be regarded a bona fide purchaser for a valuable consideration. There is no suggestion that his purchase was not in good faith; that he was not entirely ignorant of any claim or title outstanding. As to the consideration paid, I do not see any reason why the receipt of the payment of the consideration expressed in his deed from the trustees in the insolvent proceedings against Smith should not have the same force and effect as the receipt in a conveyance directly inter parties. But aside from this, I think the plaintiff showed affirmatively that he did pay a valuable consideration. It is well settled that in order to constitute a bona fide purchase for a valuable consideration, within the meaning of the recording act, the purchaser must, before being notified of the prior equity of the holder of an unrecorded deed, have advanced some new consideration or relinquished some security for a pre-existing debt due to him. The mere receiving a conveyance in payment of a pre-existing debt is not enough: Dickerson v. Tillinghast, 4 Paige, 215 [25 Am. Dec. 528]; 4 Kent's Com. 168.

In this case no security for an existing debt was relinquished. The plaintiff obtained his deed under the statutory proceeding against Smith, an absent debtor. I do not perceive how the

case is distinguishable from that of a conveyance obtained by virtue of a statutory sale by a sheriff on execution. The validity of a sheriff's deed against a prior unrecorded conveyance by the judgment debtor has been repeatedly recognized, and I think properly: Parks v. Jackson, 11 Wend. 442 [25 Am. Dec. C56]; Tuttle v. Jackson, 6 Id. 213 [21 Am. Dec. 306]. The two methods of sale and conveyance are analogous; both are judicial or statutory proceedings. It is true, the plaintiff, who was the creditor of Smith, or one of the creditors, paid no new considertion at the sale except the expenses attending the proceedings. The real consideration was the debt; the costs were but an incident. Under the recording act it should be held that, in effect or equitably, the creditor purchasing upon a judicial sale, on his own judgment, or in an insolvent proceeding to collect his debt, pays the amount of his bid to the officer, and, in theory, receives it back again. In other words, it should be held in equity that the land is converted into money, and the conveyance made in consideration of the money thus advanced.

None of the objections made at the trial as to the validity of the attachment proceedings are well taken. The statute which requires the officer before whom the proceedings against an absent debtor are pending to report to the supreme court within twenty days after the appointment of trustees, and to file the same, is merely directory. The report, when made, is rendered by statute conclusive evidence of all the facts which it contains: 2 R. S. 13, sec. 68. Its recitals, therefore, proved all the proceedings, including the issuing of the original attachment, and all formal matters of regularity up to the appointment of trustees. There was no claim that the report of the judge was defective in any respect; at least, no objection was made that its recitals were not full and complete.

The requirement of the statute that the trustees shall cause their appointment to be recorded within one month is simply directory: 2 R. S. 12, sec. 61. An entire failure to record would not affect the validity of the sale made by them of the debtor's property.

The judgment of the supreme court must be affirmed.

All the judges were in favor of affirmance, except MITCHELL, J., who did not hear the argument, and took no part in the de

cision.

ATTESTATION AND ACKOWLEDGMENT OF DEED IS NECESSARY ONLY AS TO SUBSEQUENT PURCHASERS AND INCUMBRANCERS, and it is valid between the parties without these formalities: White v. Leslie, 54 How. Pr. 398; Wiles v.