Leving v. Will , 1 U.S. 430 ( 1789 )

1 U.S. 430 (1789) 1 Dall. 430

LEVING
versus
WILL.

Supreme Court of United States.

The question was, whether a mortgage, not recorded within fix months, is good against the mortgagor? And it was argued on the 5th of January, 1788, by Wilson and Ingersol, for the Plaintiff; and Sergeant and Bradford for the Defendant.

The cause having been for some time under advisement, THE CHIEF JUSTICE delivered the opinion of the Court as follows:

M``KEAN, Chief Justice.

The judgment in this case depends upon the construction of the acts of Assembly 1 State Laws, pages 79. and 520.

It is to be premised, that the reason which induced the Legislature to make such acts as take away the common law, may be, and usually is, urged, as the rule by which the acts ought to be construed. In doubtful cases, therefore, we may enlarge the construction of an act of Assembly, according to the reason and sense of the law-makers, either expressed in other parts of the act itself. or guessed by considering the frame and design of the whole. 11 Mod. 161. Archer v. Brokenham. And the original intent and meaning is to be observed. 11 Rep. 73. Magdalen Colledge Case. Where, indeed, the expressions in an act of Assembly are in general terms, they are to receive a construction that may be agreeable to the rules of common law, in cases of a similar nature. 19 Vin. Abr. 512.

The original intent, then, of the makers of the law immediately under consideration, and their principal reason, seems to have been to prevent honest purchasors, or mortgagees, of real estates, from being deceived by prior secret conveyances, or incumberances; and, therefore, they have directed that such conveyances, or incumberances, shall be recorded in six months, or that they should not be sufficient to pays any estate. Thus, by having recourse to the offices of the Recorders, any one may ascertain the previous liens upon the property, which he wishes to purchase, or to receive as a pledge; and this amounts to a constructive notice to all men, and supercedes the necessity of express personal notice. But the Legislature did not mean, nor have they, in fact, enacted, that express personal notice, where given, should have no effect: Neither could they entertain an idea of defeating fair and honest bargains, which do not injure other persons: And, if this unrecorded deed can be obligatory in no other manner, it may certainly operate as a covenant to stand seized to uses. 2 Wils. 72 105.

But why should it not be good as between John Levinz and the grantee, since by construing it so, no one else can be hurt, and the deed was clearly delivered for securing a just debt, without any suggestion of fraud in the transaction? It is true, it would not have been valid against a subsequent grantee, or mortgagee, whose deed or mortgage was regularly recorded; but we think it is efficient against John Levinz, and all other persons; that the deed, so far, is sufficient to pass the lands, and that, under it, the possession of the premisses might have been recovered in an ejectment.

There is a great variety of cases which confirm this opinion, and some of them have been already cited by the Defendant's counsel. Thus, with respect to church leases, the statute enacts, that they may be made for twenty one years or three lives, from the date; and, if made for a longer term, that they shall be utterly void, any law, custom, or usage, to the contrary. And, yet, leases for a longer term have always been adjudged good against those who made them; because, that could do no wrong to the successors, or to any other persons. See 1 Eliz. c. 10. sect. 5. 3 Bac. Abr. 390. Cowp. 141. So, likewise, notice of a judgment, though not docqueted, will bind a purchasor, notwithstanding the express words of the statute of 4 and 5 Will. and Mary c. 20. sect. 3. by which it is declared that judgments not docqueted, shall not affect lands, as to purchasors or mortgagees. 2 Eq. Abr. 684. In the case of a lease made in Ireland, where there is a statute providing, that all leases which were not registered by a certain day, should be void, if a subsequent lessee had notice of the prior lease, though not registered, it shall be good against him, 2 Eq. Abr. 282. Ca. 19. And, in the instance of a surrender of a copyhold by way of mortgage, not presented to the Court in time, the surrender will nevertheless be valid against voluntary dispositions, or creditors; and that, although by the custom of the manor, confirmed by act of Parliament, all such surrenders were to be void, if not presented in twelve months after they were made. 1 Chan. Ca. 170 2 Vern. 564. These, indeed, were considered in the nature of purchasors by defective conveyance, and the law as a penal one. See, also, 1 Will. 279.

Upon the whole, the Court are clearly of opinion with the Defendant, and direct judgment to be entered accordingly.

Judgment for the Defendant.