Davidson v. . Cowan , 16 N.C. 470 ( 1830 )

This cause might well be decided upon its particular circumstances; since the agreement of the parties mentioned in the pleadings would conclude them, and the judgment at law is upon that agreement.

But it may be serviceable to the profession and the (471) community generally for the Court at once to declare the law upon the general question made; as the whole Court has a clear opinion on it.

That question is whether a notice of an unregistered mortgage or deed of trust, acquired by a creditor by judgment of the mortgagor, before a sale on his execution, affects the creditor and sets up the deed. And we think not. There is no equity against a creditor, restraining him from using all legal means to obtain a preference and ultimate satisfaction of his debt. The period of contracting the debt is wholly immaterial. One creditor may justly obtain satisfaction, although he knows that he thereby deprives his debtor of the means of paying a debt previously contracted. Nothing but the actual divesting of the debtor's estate, or a specific valid lien on it at law, can defeat a creditor. If he obtains his execution before an elder debt is ripened into judgment, he may satisfy himself. If he gets the legal preference by his execution, before a creditor by a mortgage perfects his title by registration, he may likewise satisfy himself. Each has an equal equity, and one has the law. He may keep it. The case of a purchaser is entirely different. He has no equity if he buys what he knows another cannot rightfully sell. He claims under the mortgagor by a contract made in fraud of another. He is not obliged to lay out his money, and does it at a risk. A creditor claims against both mortgagor and mortgagee, and is seeking, not to deprive another of his rights, but to save himself. In such a storm, he who can lay hold of the plank by getting the advantage at law shall not be deprived of it. As against a creditor, the deed is not valid until registration; and if it be not registered before the teste of the creditor's execution, it does not stand in his way.

PER CURIAM. Bill dismissed, with costs.

Cited: Smith v. Castrix, 27 N.C. 521; Dewey v. Littlejohn, 37 N.C. 503;Hicks v. Skinner, 71 N.C. 540.

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