1880. 13th day of April, 1860, and the latter on the 24th day Septem'r Term. of February, 1860. In the absence of any distinct and direct proof of the time of delivery, what are we to Harman infer as to the time from these papers and their dates? & als. dorfer V. It seems to us that in such a case the rule as laid down Oberin Harvey and others v. Alexander and others, 1 Rand. &als. 219, 241, must govern. In the opinion of the court by Judge Cabell, he said: "If a deed has a date, the law intends it to have been delivered at the date. When, therefore, a deed having a date is proved by witnesses who say nothing as to the time of delivery, and is thereupon recorded, it stands recorded as a deed proved to have been delivered at its date." And with this accords what was said by Judge Daniel, speaking for the court in Rodgers v. McCluer's adm'rs and others, 4 Gratt. 81, 83. We perceive no distinction in principle between the presumption of delivery arising from the proof by witnesses and the acknowledgment before a justice. Recordation is the object in both cases. But a deed delivered is valid between the parties without registration. It is only necessary to record it to secure protection against third parties-creditors and purchasers. A certified acknowledgment for this purpose is by no means inconsistent with a prior delivery, and is not, at all events, sufficient of itself to rebut the presumption arising from the date of the instrument. It may very well happen that a deed is delivered and accepted, either with an intention not to record it at all, or to have it acknowledged for that purpose at a future time. We are of opinion, therefore, that upon the record before us it must be considered that the deeds to Hughes and Boatwright were severally delivered at their respective dates, and as the deed to the latter was last delivered, the land conveyed by it was "aliened last." The justice, in his certificate to Hughes' deed, describes it by an improper date; but the error is cor- 1880. rected by the deed itself. Septem'r & als. V. Ober But it is contended for Oberdorfer, that even if the lands conveyed to Boatwright were the lands "aliened Harman last," yet at the time of the alienation, the prior deed to Hughes had not been recorded-that Boatwright dorfer had no notice of it, actual or constructive-and as to & als. him, that it was void under the fifth section of chapter 114 of the Code (1873). That section declares, that every deed (among other written instruments enumerated) conveying real estate "shall be void as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time it is duly admitted to record," &c.; and it is insisted, that Boatwright, in his relation to Hughes, although they were purchasers of different parcels of land, was a "subsequent purchaser" within the meaning of this section and therefore as to him the deed to Hughes was void. We cannot give our assent to this construction. By "subsequent purchasers" are intended, as we think, purchasers of the same subject embraced in the instrument which is declared to be void. This would seem to be the natural construction of the section considered alone, but it is strengthened by section 11 of the same chapter, which defines or explains the words "creditors" and "purchasers" as used in any previous section, and declares that they "shall not be restricted to the protection of creditors of, and purchasers from the grantor, but shall extend to and embrace all creditors and purchasers who, but for the deed or writing, would have had title to the property conveyed, or a right to subject it to their debts." This section was reported by the revisors and its adoption recommended "to put an end to the judicial strife" exhibited in the decisions in Anderson v. Anderson, 2 Call. 198; Pierce v. Turner, 5 Term. Gaines, 1 Gratt. 347. &als. V. Ober dorfer 1880. Cranch 154; Land v. Jeffries, 5 Rand. 211; Thomas v. Septem'r See Report of Revisors, 615. It will be observed, that the "purchasers" referred Harman to in the latter part of the section, are "purchasers who, but for the deed or writing, would have had title to the property conveyed"-that is, purchasers and, of &als. necessity, subsequent purchasers of the same property conveyed to a prior purchaser; and it would seem to be a fair inference that by "purchasers from the grantor" mentioned in that connection were in like manner intended subsequent purchasers from the grantor of the same subject conveyed by him to a previous purchaser. Again, if the construction contended for by the learned counsel of Oberdorfer were sound, we should reasonably expect to find it recognized by some exception or modification engrafted upon the 10th section of chapter 182 (already quoted), which fixes the order in which the aliened lands shall be subjected; but we there find no such exception or modification. The conclusion is, that the land conveyed to Boatwright, now held by Oberdorfer, must be subjected to the satisfaction of the judgments before the land sold to Hughes can be resorted to for that purpose, and consequently that the decree of February 9, 1877, fixing a prior liability on the land last mentioned is to that extent erroneous. The remaining questions relate to the order in which the land sold by the executor of Hughes is liable as among the several alienees. It appears, that it was divided and sold in lots or parcels, five in number. They were all advertised and sold by auction at the same place, on the same day, and on the same terms, and the sale was of all, one after another, in regular succession from No. 1 to No. 5. The terms were ten per cent. of the purchase money in cash and for the residue upon a 1880. Septem'r & als. V. Ober dorfer & als. credit in instalments, the purchasers to give bonds, the lands to be conveyed and deeds of trust given on the same Term. to secure payment of the bonds-the deeds of sale and trust deeds to be executed and remain with the vendor Harman until payment and in the meantime to be recorded or not at his option. Payne, Jackson and Via, in the order in which they are named, each bought one lot, and Dudley the remaining two lots, the last sold. Payne, by consent of parties, was substituted as purchaser of the lot bought by Via: so that Dudley and Payne were purchasers, each of two lots and Jackson of one. The purchasers were at once let into possession under their respective contracts and they retained possession thereunder, the payments by the parties respectively being completed and the deeds delivered and admitted to record at different times. Upon these facts and circumstances, we are of opinion that the sales made on the 11th day of November, 1871, must be regarded as "alienations" within the meaning of the statute as of that day, and the law in such a case taking no account of the fractions of a day, the alienations must be considered as all made at the same time. It is true, that to make a complete and perfect alienation of real estate, in the strict sense of that term, it is necessary at law that the title should be conveyed by a proper instrument; and in equity, that the purchaser should have the right to call for the title without condition. But we are not disposed to give to the terms "aliened," "alienees," "alienations," employed in the statute, a strict technical meaning. It was the purpose of the legislature in enacting the section (the 10th) before quoted, to adjust the equities inter se of several purchasers of different portions of real estate subject to a common lien, and on the recommendation of the revisors (Report, 918, 919), settle the law as to which there had been some diversity in the VOL. XXXIII-64 1880. Septem'r & als. V. Oberdorfer decisions of this court, in conformity with the opinion Term. of a majority of the court, consisting of three judges, in McClung v. Beirne, 10 Leigh 394. These equities Harman would seem to require that such a purchaser should be considered an "alienee" within the statute as soon as he makes a valid contract for purchase-a contract & als. which a court of equity would enforce specifically, and which he in fact afterwards carries fully into execution. This construction is in harmony with the equitable doctrine, universally recognized and accepted, touching the relative rights and interests of vendor and vendee under a contract for the sale of real estate, based on the maxim that what has been agreed to be done shall be considered as done. That doctrine is thus stated by Mr. Justice Story: "In the view of courts of law, contracts respecting lands or other things, of which a specific execution will be decreed in equity, are considered as simple executory agreements, and as not attaching to the property in any manner, as an incident, or as a present or future charge. But courts of equity regard them in a very different light. They treat them, for most purposes, precisely as if they had been specifically executed. Thus, if a man has entered into a valid contract for the purchase of land, he is treated in equity as the equitable owner of the land, and the vendor is treated as the owner of the money. The purchaser may devise it as land even before the conveyance is made, and it passes by descent to his heir as land. The vendor is deemed in equity to stand seized of it for the benefit of the purchaser; and the trust attaches to the land, so as to bind the heir of the vendor, and every one claiming under him as a purchaser, with notice of the 1 Story's Eq. Juris. § 790. trust. Again, * * * "Where a contract is made for the sale of land, the vendor is, in equity, immediately 1 |