Thompson v. Mack , 1 Harr. Ch. 150 ( 1839 )

The Chancellor.

From the facts statedin the bill, answer and testimony, there can be no doubt that the conveyance from Mack to Chamberlain was a mortgage,, and a mortgage only in its .inception; and it is evident that it so continued, and was so regarded until the transactions were closed by the payment of the amount due to Chamberlain, and the conveyance to Keeney.

It is admitted to have been so in the first instance.

Chamberlain, in his testimony says, that the instrument of defeasance was given up, so that the estate conveyed should remain as security for further advances.

The account with Mack was not closed at that time.

Chamberlain says he should, at any time, have re-conveyed to Mack upon payment of the amount due, and an allowance for hi* trouble in securing his debt.

He did actually convey the premises to Keeney, the in-law of Mack, upon payment of the advances made by him, and the charges for his trouble. . '

The statute (Laws of 1833, page 284, section 3,) provides that “ every deed conveying real estate, which by any other instrument or writing, shall appear to have been intended as security, in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage and be deemed and adjudged to be liable to be registered as other mortgages are by virtue of this act; and the person or persons for whose benefit such deed shall be made, shall not have the advantage given by this act to mortgages, unless every instrument and writing operating as a defeasance of the same, or explanatory of its being designed to have the effect only of a mortgage or conditional deed, be also herewith registered in substance as in case of mortgages.”

The deed of Chamberlain with the writing or agreement to Mack, ought to have been registered as a mortgage. The recording of that deed, as a deed, though the record was prior to that of Thompson’s mortgage, can give it no priority over that mortgage. See Dey vs. Dunham, 2 J. C. R., 182; Grimstone vs. Carter, 3 Paige, R., 421.

Four days after the record of the deed from Mack to Chamberlain, Thompson recorded his mortgage and thus gave notice of its existence.

Keeney claims, however, to have been a purchaser without notice.

But if in fact the transactions between Mack and Chamberlain constituted the instrument a mortgage and no more, the record of the mortgage of Thompson should be regarded as a sufficient notice to a subsequent purchaser.

The fact of a subsequent sale, especially while the mortgage of Thompson was standing upon the record, would not change the character of the transaction between Mack and Chamberlain. It would defeat the salutary provisions of the statute to permit it to be evaded by a sale to another when the party claiming (as in this case Thompson had done,) had pla cod') his mortgage upon record.

The mortgage to Thompson being of prior date, without reference to the registry laws would have priority; the defendants claim priority, by virtue of the provisions of the statute. In order to entitle themselves to such priority, they must conform to its terms, which has not been done.

Made sots out in his answer, that the mortgage is nearly or quite paid. This will render it necessary that it be referred to a master to examine and report the amount due upon the mortgage, after allowing all proper credits and offsets, and to report to this court with convenient speed; and further directions reserved until the coming in of the masters report,