under an unrecorded deed, though, by the recording act, a judgment does not take precedence of an unrecorded deed when the title to the land is not of record in the name of the judgment debtor.

[See annotation on this question beginning on page 44.] Deeds, § 125 effect of return.

APPEAL by plaintiff from an order of the District Court for Traverse County (Flaherty, J.) denying its motion for new trial of an action brought to set aside as fraudulent a conveyance of certain land. Affirmed. The facts are stated in the opinion of the court. Messrs. Murphy & Johanson, for appellant:

(- Minn.
206 N. W. 170.)

consideration of $52,900. Cook took possession. One 80 constituted his homestead. By January 3, 1921, he had paid $23,000. Doll then deeded the land to him, and he, Mrs. Cook joining, gave a purchase-money mortgage for $32,220, which represented the balance due in principal and interest. The mortgage was recorded on January 6, 1922. The deed was not recorded. On June 7, 1922, judgment was docketed against Cook in favor of the plaintiff for $1,145.29.

Mr. and Mrs. Cook could not pay for the land. On November 24, 1923, it was arranged between them and Doll that they pay him $300, that he have the land, satisfy the purchase-money debt and mortgage, then amounting to $36,220, and deed to Mrs. Cook two government lots, a part of the 529 acres, containing 112 acres. To carry out this agreement, the Cooks returned the unrecorded deed to Doll, with authority to destroy it, and with the purpose of passing their title, and Doll satisfied the purchase-money debt and mortgage, and gave a deed of the 112 acres to Mrs. Cook-the deed now sought to be set aside as fraudulent.

Counsel discuss the effect of the redelivery of the deed to Doll, the charge of fraud in the arrangement whereby title to the 112 acres was transferred to Mrs. Cook, and the effect of the plaintiff's judgment.

Deeds-effect of return.

1. The general principle is settled, though the contrary has been held (Emery v. Dana, 76 N. H. 483, 84 Atl. 976), that the return by the vendee to the vendor of an unrecorded deed with the purpose of revesting title in the vendor, is of itself ineffectual (Green v. Hayes, 120 Minn. 201, 139 N. W. 139; Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Cranmer v. Porter, 41 Cal. 462; Derby v. Donahoe, 208 Mo. 684, 106 S. W. 632; Tabor v. Tabor, 136 Mich. 255, 99 N. W. 4; Old Nat. Bank v. Findley, 131 Ind. 225, 31 N. E. 62; Brown v. Hartman, 57 Neb. 341, 77 N. W.

776). It is settled, too, that the circumstances may be such as to estop the parties to such an arrangement from asserting that the vendor to whom the deed was returned, or his grantee, is not thereafter the owner. Holbrook v. Tirrell, 9 Pick. 105; Albright v. Albright, 70 Wis. 528, 36 N. W. 254; Brown v. Brown, 142 Iowa, 125, 120 N. W. 724; Matheson v. Matheson, 139 Iowa, 511, 18 L.R.A. (N.S.) 1167, 117 N. W. 755; Howard v. Huffman, 3 Head. 562, 75 Am. Dec. 783; Crossman v. Keister, 223 Ill. 69, 8 L.R.A. (N.S.) 698, 114 Am. St. Rep. 305, 79 N. E. 58; 4 Thomp. Real Prop. § 3897; 1 Devlin, Deeds, 3d ed. § 302; 3 Washburn, Real Prop. 6th ed. § 2182; 2 Tiffany, Real Prop. 2d ed. 465; 18 C. J. 407. Cases illustrating various applications of the doctrine are noted in 8 L.R.A. (N.S.) 698; 18 L.R.A. (N.S.) 1167; 34 L.R.A. (N.S.) 495; L.R.A.1918F, 402; Decennial Digest, "Deeds," §§ 179–182; 16 Century Dig. Deeds, $$ 551-553.

It is clear that Doll, after receiving the deed for cancellation, and the $300 in money, which was paid by Mrs. Cook, could not assert that his deed did not convey title to Mrs. Cook; nor could the Cooks, after receiving a satisfaction of the $36,200 mortgage indebtedness, and a conveyance to Mrs. Cook of the 112 acres, assert that Mr. Cook had title to any portion of the 529 acres through the 1923 deed from Doll. The claim of estoppel would bar all parties; so, as between the parties, Mrs. Cook owns the 112 acres and Doll that remaining of the 529

ANNOTATION.

Judgment as lien on unrecorded title to real estate [Judgment, § 238.]

The general rule is that a judgment is a lien on an unrecorded title of the judgment debtor to real estate, whether such title is legal or equitable.

Illinois. Niantic Bank v. Dennis (1865) 37 Ill. 381; Barlow v. Cooper (1903) 109 Ill. App. 375.

Iowa.-Denegre v. Haun (1862) 13

(EMERSON-BRANTINGHAM IMPLEMENT Co. v. Cook, ante, 41).

New York. See Macauley v. Smith (1892) 132 N. Y. 524, 30 N. E. 997. Pennsylvania. See Auwerter Mathiot (1823) 9 Serg. & R. 397.

V.

Tennessee. See Bryant v. Bank of Charleston (1901) 107 Tenn. 560, 64 S. W. 895.

Virginia. See Kline v. Triplett (1896) 2 Va. Dec. 429, 25 S. E. 886.

the

In Niantic Bank v. Dennis (Ill.) supra, wherein it appeared that two creditors had obtained judgments against a debtor who owned a perpetual lease, it was said: "The lien of these two judgments upon equitable estate of Davidson was in no wise affected by the fact that the lease, under which that estate arose, was not recorded. Neither, under our statute, was it affected by the fact that his estate was equitable instead of legal."

In Gallaugher v. Hebrew Congregation (La.) supra, it was held that a recorded judgment operated as a judicial mortgage, and reached and affected real estate situate at the place of registry to which the judgment debtor held only an unrecorded title, and that the judgment creditor could subject the property to the satisfaction of his judgment in case of the sale or transfer thereof.

In Macauley v. Smith (N. Y.) supra, it appeared that the property involved had been conveyed by a deed absolute in form, but there was an antecedent unrecorded contract to the effect that on repayment within a year of the money advanced the grantees would reconvey, but if not repaid the deed was to become absolute. It was held that as between the parties, a subsequent judgment obtained against the grantor became a lien on the property.

In Kline v. Triplett (Va.) supra, it appeared that a vendee of property who had paid part of the purchase price and had received a deed, which he did not record, surrendered it, and had his vendor make another deed to a third person, who paid the rest of the purchase price. It was held that a judgment obtained by a creditor of the first purchaser was a lien on the

unrecorded title, except as to the amount of the payment made by the second purchaser, who was protected to that extent.

In Iowa, by statute, a judgment is a lien on all interests of the judgment debtor in real estate, whether legal or equitable, and it is immaterial as between the parties whether such interest appears of record. Denegre v. Haun and Lathrop v. Brown (Iowa) supra. Compare Blain v. Stewart (Iowa) supra.

In Auwerter v. Mathiot (Pa.) supra, it was held that a judgment was a lien on an unrecorded equitable title, without the aid of a statute.

In the reported case (EMERSONBRANTINGHAM IMPLEMENT Co. v. COOK ante, 41) a judgment is held to be a lien on a legal title although such title is unrecorded. But it is said, also: "The holding that a judgment is a lien upon the title of the judgment debtor whose deed is unrecorded does not operate against a good-faith purchaser of the record title; for the recording act makes an unrecorded conveyance void against a judgment only when the judgment is against the person in whose name the title to such land appears of record prior to the recording of such conveyance.'" The reported case thus distinguishes several earlier cases which have apparently been erroneously construed as being authority for the rule that in Minnesota a judgment is not a lien on an unrecorded title. See Dickinson v. Kinney (1861) 5 Minn. 409, Gil. 332; Coles v. Berryhill (1887) 37 Minn. 56, 33 N. W. 213; Lyman v. Gaar, S. & Co. (1899) 75 Minn. 207, 74 Am. St. Rep. 452, 77 N. W. 828; Butterwick v. Fuller & J. Mfg. Co. (1918) 140 Minn. 327, 168 N. W. 18.

In Hultz v. Zollars (1874) 39 Iowa, 589, it was said that judgments were not liens on an equitable interest in real estate not appearing of record, so as to change or affect subsequent bona fide purchasers of the legal title.

In Dickson v. Hynes (1884) 36 La. Ann. 684, it was held that a judgment would operate on land acquired by the judgment debtor after the recording of the judgment, notwithstanding

False pretenses, § 8 passing fictitious check - felony.

1. Securing merchandise by the use of a check signed by a fictitious name which there is no deposit to cover is within the provisions of a statute that every person who makes, passes, utters or publishes, with intention to defraud any other person, any fictitious check purporting to be an instrument in writing for the payment of money of some individual, when in fact there is no such individual in existence, shall be punishable as for felony.

[See annotation on this question beginning on page 49.] Name, § 6 use of fictitious name

effect.

--

2. A contract entered into by a per

son under an assumed or fictitious name is valid.

[See 19 R. C. L. 1333; 3 R. C. L. Supp. 1014; 4 R. C. L. Supp. 1323.]

APPEAL by defendant from a judgment of the District Court for Weber County (Kimball, J.) convicting him of the crime of felony. Affirmed. The facts are stated in the opinion of the court.

Mr. D. L. Oleson, for appellant: The mere signing of a fictitious or assumed name, claiming it as one's own, to a check or other instrument in writing for the payment of money, does not constitute the offense designated in § 8276, Compiled Laws of Utah 1917.

People v. Elliott, 90 Cal. 586, 27 Pac. 433; People v. Eppinger, 105 Cal. 36, 38 Pac. 538; People v. Ellenwood, 119 Cal. 166, 51 Pac. 553; People v. Terrill, 133 Cal. 120, 65 Pac. 303; People v. Nishiyama, 135 Cal. 299, 67 Pac. 776; People v. Harben, 5 Cal. App. 29, 91 Pac. 398; People v. Thal, 61 Cal. App. 48, 214 Pac. 296; People v. Brown, 61 Cal. App. 574, 215 Pac. 1031; People v. Hamby, 55 Cal. App.

37, 202 Pac. 907; People v. Sander, 59 Cal. App. 82, 209 Pac. 1027; Roberts v. Mosier, 35 Okla. 691, 132 Pac. 678.

Messrs. Harvey H. Cluff, Attorney General, W. Halverson Farr, J. R. Robinson, and L. A. Miner, Assistant Attorneys General, for respondent:

The crime of which the defendant was convicted was properly charged and brought under and pursuant to the provisions of § 8276.

People v. Eppinger, 105 Cal. 36, 38 Pac. 538; People v. Elliott, 90 Cal 586, 27 Pac. 433; People v. Thal, 61 Cal. App. 48, 214 Pac. 296; People v. Sander, 59 Cal. App. 82, 209 Pac. 1027; People v. Brown, 61 Cal. App. 574, 215 Pac. 1031.