Connoly v. Stewart ( 1803 )

The Judges were unanimously of opinion, that Stewart, who had the youngest mortgage, should have the preference, because he had recorded his mortgage first, in the proper office for recording deeds for landed property, which is in the register’s office. Whereas the prior mortgagee, Connoly, had recorded his mortgage in the secretary’s office, which is the office appointed by law for recording mortgages and deeds for negroes, and other personal pro? perty, and not real property.

The act for preventing deceits by double conveyances, is very explicit and express upon this subject. It declares that “ that sale, conveyance or mortgage of lands and tenements, which shall be first recorded or registered in the register’s office, &c. shall be held and taken to be the first sale, conveyance or mortgage.” And that that sale or mortgage of negroes, goods or chattels, Sec. first recorded in the secretary’s office, &c. shall be held, deemed and taken, to be the first sale or mortgage, &c. in all courts of judicature in South Carolina. Hence it was most evident, that the act contemplated two offices for the recording of deeds of conveyances, &c. the one for real or landed property, and the other for chattels or personal property; and the man who is so incautious as to record a deed in either office, which should be recorded in the other, must take the consequences upon himself. This court has no power to afford him relief; the law is imperious, and must govern. The recording in an office not directed by law for the purpose, is tantamount to no record at all, as to other persons having first duly recordad their deeds for the same property, in the appropriate office directed by law for that purpose.

Rule made absolute, and the sheriff to pay the, money over to Steivart, in discharge of his mortgage, which was first duly recorded.

All the Judges present.

JV. B. Divers acts of assembly have consolidated both these offices into one, in most of the country districts; but they are still distinct and separate offices in Charleston district.