Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 But to shelter themselves from this inevitable conclusion, these creditors may say such notice cannot affect them, as it only applies to subsequent purchasers for valuable consideration, and cite Guerrant vs. Anderson, 4 Rand., 208, and perhaps subsequent decisions, under chap. 99, 1st Code of '19, p. 361. The construction given to that chapter in this respect, to say the least, is questionable. A just interpretation of its fourth section does not seem to us to warrant the decision. An accurate, grammatical construction, as well as legal, makes the word "notice" apply to creditors no less than subsequent purchasers for valuable consideration. Nor can the last clause. of that section be legally interpreted to limit or restrict what precedes-as the last clause contains no express restrictive terms; nor is it inconsistent. But be this as it may, the Code of 50, § 5, p. 118, which governs the present case, omits all the clauses in the old statute which the court relied on in making the decisions aforesaid. Therefore § 5 of the Code of '50, as it now stands, is to receive a construction for the first time from this Court; and we earnestly insist that it give a construction that shall comport with the language, reason and spirit of the law, and as shall harmonize with the construction given to similar statutes by the courts throughout the country, viz: that the mala fides applies to all who seek by whatever means to get away another man's land, when they know or have good reason to know, he has purchased and paid for it-whether the means they adopt be subsequent deed or judgment lien. 3 Washb. R. P., 3 Ed., 290, note, where the decisions of the courts of the different States are collected. See also the reasoning of the court in Priest vs. Rice, 1 Pick 164, and the cases referred to. See also Virginia Code of '50, p. 709, § 8. A judgment though not docketed is declared good against a subsequent purchaser for valuable consideration, but with notice of such judgment. Reverse the priority in date of their claims, and is there not stronger reason for postponing the docketed judgment when the creditor knows, while getting the debtor to confess judgment which he gets docketed, that his debtor had previously conveyed the land to a bona fide purchaser who had paid the purchase money, and was then in actual possession, though the deed was not recorded? The Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 judgment lien is general, while the conveyance is of specific property, evidenced by transfer of possession. A court of equity can hardly put the purchaser on less advantageous ground; or fail to regard the cogent evidence this provision furnishes when taken in connection with the very material change of chap. 99, 1 R. C., p. 361, by Code of '50, chap. 118as proof that the latter intended to put creditors and subsequent purchasers with notice on the same footing, as equity and common sense puts them. The respondents, Hickok and Allen, purchased bona fide from Parker, and paid the purchase money, and took possession, relying upon the validity of Parker's title, and have continued that possession since, expending moneys as before stated, which purchase money Parker at once paid the Donnallys, increasing thereby their assets five fold more than any of their creditors would then have paid for the land, And there is another ground on which these plaintiffs are barred in a court of equity at least, viz: estoppel, waiver, or abandonment. What more unconscionable claim could be made to a court of equity than that made by the present plaintiffs, standing, as the evidence shows them to stand, in respect to the respondents. The legislature never intended judgment liens, if acquired, should uphold fraud, and hence confided their enforcement exclusively to equity jurisdiction. If A. stand by and see B. honestly purchase land he owns, of another person without objection, equity closes his mouth forever after. Apply this well established principle of equity to the present plaintiffs, and where are they? How, then, does the evidence present the parties to the conscience of this court? The creditors, after solemnly renouncing the land in controversy and disclaiming it as belonging to their debtors, spend ten or twelve years in dissipating assets for which they were offered two hundred thousand dollars in '65, but refused; have acquiesced for twelve or thirteen years in the respondents' possession, in their large expenditures about the property, now have the audacity to appeal to the conscience of this court to turn these respondents out of their possession, and give the land to them-land that fourteen years ago both they and their debtors regarded only as a worthless fragment of their then vast estate. Both Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 the law and the equity are with the respondents. To uphold such a claim as the creditors', would be monstrous! Even if the writing between Donnallys and Parker was technically defective at law as a contract-which is not the case the payment of the purchase money to Donnallys, and entry into possession by respondents, October, '56, six months before any of the judgments were recovered, would have invested them with the equitable title, while the Donnallys held the legal title in trust only, and so not subject to judgment liens of Donnallys' creditors subsequently recovered-and this equitable title such a writing would strengthen. Withers vs. Carter et als., before cited, and authorities referred to by Judge Baldwin in giving the opinion of the court-especially Lugdon on Vendors, and cases: Burgh vs. Francis; Taylor vs. Wheeler; Finch vs. Earl of Winchester, and Coleman vs. Cocke. The mode of raising equitable title valid against subsequently recovered judgments established by these authorities, neither the registration law, statute of frauds, nor that for docketing judgments, in Code of '50, restricted or modified. Miller & Quarrier for appellees. The record presents for adjudication a controversy that has arisen between the judgment creditors and the defendants, Hickock and Allen. The creditors contending that the undivided interest formerly owned in the Steele 27,000 acre tract of land by A. F. and W. Donnally, is subject to the lien of their judgment against the said A. F. and W. Donnally, while Hickock and Allen claimed to hold the land free from their lien. On page 28 of record will be found the date of the judgments of the petitioners, together with the time of docketing the same: The deed from A. F. and W. Donnally to Milton Parker, who is the vendor of the defendants Hickock and Allen, is Jan'y Term, Donnally et al. vs. Parker, Beale et al. 1872 dated September 30, 1856, but is recorded April 3d, 1858, while it vested the title of A. F. and W. Donnally in the said Milton Parker; yet on account of the failure to record the deed before the docketing of the judgment, the lien of the petitioners' judgments, which are duly docketed, were not obstructed by said deed. See Code of West Virginia, chap. 74, $5; also chap. 139, § 5, 6 and 7. In fact, the appellants, neither in the court below nor in their written arguments filed here, have relied on the said deed, but rather upon what they call a contract, which is found upon page 33 of the record, and to the terms of which paper the attention of the court is especially called. Now, it is candidly admitted that if the paper found on page 33, and which is dated 12th of March, 1856, and recorded 17th March, 1856, was a perfect contract at the date of its recordation, and that nothing remained to be done by either of the contracting parties, at that time, and if at that time Parker was bound to buy, as much as Donnallys to sell, then the contract being perfect and prior in time, to the judgments, the decree complained of, is erroneous. But it is submitted that under the terms of the 4th and 5th sections of chap. 74 of the Code, which are the exact words of the Code of 1850, the paper, the recordation of which, protects the contracting party against creditors, as perfectly as if the same was a deed, must be at the date of its recordation, a perfect contract; if it lacks any of the essential elements of a contract at that time, then it is not a contract, and does not protect the party recording it. The statute authorizes the recordation of contracts, and gives great virtue to such recordation, it does not authorize the recordation of a proposition to contract, which, at some future time, may ripen into a perfect contract; nor does it give to such recordation of a proposition to contract any force or validity whatever. It then becomes necessary to inquire whether the paper writing, found on the 33d page of the record, and signed by M. Parker, Wm. Donnally and A. F. Donnally, was. on the 17th day of March, 1856, a contract or a proposition to make a contract. The paper recites that the Donnallys "agree to sell and to convey to Milton Parker our interest in a tract of plan patented to John Steele, of 27,000 acres, and a tract of Jan'y Term, Donnally et al. vs. Parker, Beale et. al. 1872 land lying on the waters of Pocotalico, and running into Elk river, for seventy-five cents yer acre." Here is the proposition on the part of the Donnallys, and it is admitted that if Parker had then and there accepted the proposition and promised to pay the seventy-five cents per acre, it would have constituted a contract, which, the proposition and acceptance both being in writing, might have been recorded, and if recorded would have protected the party who accepted the same, against the lien of subsequent judgments. In order to ascertain, whether or not Parker accepted this proposition, it is only necessary to quote from the paper: "It is understood and agreed that the said Parker is tc have till the first day of July, 1856, to elect whether he will take either or both tracts of said land, upon the terms and conditions aforesaid, and it is understood and agreed that the said Parker may elect either of said tracts of land, but is not compelled to take both, but should he elect to take neither, then the contract is null and void, but should said Parker elect to take said tracts, or either of them, he binds himself to pay for said land, at the rate of seventy-five cents per acre, for the land so elected to be taken by him, in the manner aforesaid." It is obvious that the Donnallys had obtained their own consent to sell one or both or either tract of land to Parker, at seventy-five cents per acre. But is equally plain that Parker had not obtained his consent to buy, because he retained the right "till first day of July, 1856, to elect whether he would buy either or both or neither of said tracts. The consent was only on one side; there was no contract or agreement, no "aggregatio mentium." The mind of the Donnallys went out to meet Parker, but Parker's mind did not respond, but took time until 1st July, 1856, to determine whether there should be an "aggregatio mentium." In the meantime the paper, before it became a contract, and before there became an "aggregatio mentium,” and while it was a mere proposition, went to record. Now it might be interesting to test this paper, to see if it possessed on the day of its date or of the day of its recordation the usual qualities of a contract. Could the Donnallys have enforced it on either of those days, and made Parker pay the seventy-five cents per acre? Clearly not, because, he had until 1st July to elect whether he would take the land or not. It was |