Opinion
December Term, 1823.
1. A mortgaged certain slaves to B and retained possession of them. After the execution of the mortgage A contracted a debt with C, who sued him, recovered judgment, and had his execution levied on the slaves in A's possession. C at the time the debt to him was contracted had no knowledge of the mortgage, but at the time of the levy both C and the sheriff knew of the existence of the mortgage. At the time of the levy the mortgage had not been proved and recorded. In an action by B against the sheriff it was Held, that the mortgage had efficacy from the time of registration only, and that C's execution, binding the property from its teste, had priority over the mortgage.
2. An ordinary deed for the conveyance of land passes no title until duly registered within a prescribed time, and when so registered, it relates back to its date and passes title therefrom; but a mortgaged deed, not registered within time, when registered operates from the time of registration only, and has no relation back to its date.
3. A subsequent purchaser is viewed, under the registry acts, as a subsequent mortgagee, and so is any other subsequent encumbrancer.
TRESPASS vi et armis, for taking certain negro slaves. The facts were as follows: George McCulloch being indebted to the Bank of New Bern, the plaintiff became his surety, and to indemnify him from loss McCulloch executed to him a mortgage deed for the slaves in question; this deed bore date 29 May, 1818. McCulloch lived in Rowan and the plaintiff in Mecklenburg, about thirty miles distant from him. The mortgage was a bona fide transaction. McCulloch remained in possession of the slaves, and after the execution of the mortgage aforesaid, contracted a debt with William and Jesse Hargrave, who sued him and recovered judgment, and sued out their execution, which was delivered to the defendant, the sheriff of Rowan County. The slaves were taken possession of by the plaintiff, claiming them under his mortgage before the issuing, but after the teste of the execution; and McCulloch at this time had failed to comply with the rules, regulations, and conditions of the bank, and a loss and damage had actually been sustained by (521) the plaintiff, in consequence of his being surety for McCulloch. The defendant levied the execution on the slaves in the plaintiff's possession by directions of W. and J. Hargrave, who, as well as the defendant, had notice of the mortgage at the time of the levy; but the Hargraves had no notice of this mortgage when their debt was contracted. The levy was made on 15 May, 1821, at which time the mortgage had not been proved and recorded. And whether the slaves were liable to be thus taken in execution, the mortgage deed not having been registered, but the debt to the bank still remaining unpaid, was the question submitted to the court. Verdict and judgment were rendered below for the plaintiff, and defendant appealed.
By Laws 1715, ch. 7, sec. 7, it is required that all mortgages of lands, negroes, goods, and chattels, which shall be first registered, shall be held to be the first mortgage, unless a prior mortgage shall be first registered within fifty days after its date.
It was held, Cowan v. Green, ante, 384, that an unregistered mortgage should yield to a bill of sale, which had been registered in due time, the mortgage not having been registered until nearly two years after its date. In this case the mortgage to the plaintiff was made in May, 1818, and was not registered on 15 May, 1821, when the executions in question were levied three years after its date.
Although the section of the act just cited declares that when mortgages are registered in due time they shall be good as against other mortgages, there can be no doubt but they would be good also against other conveyances of the same property, afterwards made, or against liens subsequently acquired; but when they are not registered in due time as the act requires, they must give way to rights and liens acquired up (522) to the time at least when they shall be registered.
It would not do to put a construction on the act, so as to give a preference to unregistered mortgages at any indefinite period of time. There is a greater necessity for the registration of mortgages than absolute bills of sale; because in the former case property mortgaged most commonly remains in the possession of the mortgagor; in the latter, it is generally delivered to the purchaser.
I therefore think that the rule for a new trial should be made absolute.
By the registry act it is enacted that no conveyance or bill of sale for land other than mortgages shall be good and available in law unless the same be registered within twelve months. By section 7 of the same act it is enacted that every mortgage of lands, tenements, goods, or chattels, which shall be first registered, shall be taken and held to be the first mortgage, any former or other mortgage not before registered notwithstanding, unless such prior mortgage be registered within fifty days after the date. And the subsequent acts of the Legislature giving further time for the registration of deeds and mesne conveyances; apply not to mortgages; they were left under the sole operation of the act of 1715, until the passage of the act of 1820, which does not affect this case. The totally different phraseology used in the two sections of the act, requires that a different construction should be put upon them. Deeds for the conveyance of lands that is, not mortgages, pass no title until duly registered within a prescribed time, but when so registered they relate back to their date and pass title therefrom; but in regard to mortgages nothing is said as to their inefficiency unless registered within a prescribed time only, that is, a registered mortgage shall be held the first mortgage unless a prior mortgage shall be registered within (523) fifty days of its date. And in Cowan v. Green, ante, 384, a subsequent purchaser is viewed as a subsequent mortgagee, and so may, I think, any other subsequent encumbrancer. A mortgage, therefore, not registered within fifty days of its date has no relation back at all, yet it operates from its registration; there being no law saying unless registered within a particular time it shall pass no title, as there is in the case of absolute deeds. An unregistered mortgage, therefore, the fifty days having expired, may be considered as a mortgage without date, having efficacy from its registration only, and I think registration gives it efficacy from that period, not because I can find any act of the Legislature expressly authorizing such mortgages to be registered, but because there is no act prohibiting it. And section 7 of the act before mentioned speaks of their registration within fifty days of their date, and of course gives to them when so registered relation to that period, and principally because the words of the act are that the first registered mortgage shall be deemed the first mortgage; which clearly implies that the first executed mortgage was not then registered, for if it had been the second mortgage could not have been the first registered mortgage; both of which requisites to wit, that the first mortgage should not have been registered within fifty days, and that the latter should be the first registered mortgage, must concur, otherwise the preference was not accorded to it. It is plain from this that the Legislature contemplated the registration of mortgages after the fifty days had expired, and gave to them a priority over mortgages then unregistered, unless such unregistered mortgage should itself be registered within fifty days; for there it is admitted that the spirit of the act would give a priority to the second mortgage from the time of its date.
The creditor Hargrave, having reduced his demand to a judgment and taken out execution, which bound the property of McCulloch from its teste ( Green v. Johnson, ante, 309), nay more, having delivered it to the sheriff, became an encumbrancer within the principle (524) held in Cowan v. Green, ante, 384, and the mortgage to Davidson, being at that time unregistered, and if registered afterwards, operating only from its registration, must be postponed to Hargrave's prior lien. The sheriff was therefore justifiable in seizing the property to satisfy Hargrave's debt. The rule for a new trial must be made absolute.
TAYLOR, C. J., concurs.
PER CURIAM. New trial.
There was another case before the Court, between the same parties, which resembled the first in all respects except that Cowan, the plaintiff in the execution, had credited McCulloch before the execution of the mortgage.
The difference between this case and the former is, I conceive, an unimportant one, and the opinion which I have already delivered is applicable to the present case.
This case is in all respects analogous to the other case between the same parties decided at this term. The circumstance of Cowan's being a creditor before the mortgage was executed places him in no better situation than Hargrave, who became a creditor afterwards. Both of them, by reducing their demands to judgments and taking out execution thereon, the teste of which overreached all transfers made by McCulloch, and Davidson's mortgage not being registered, must be viewed as a transfer acquiring validity from registration only; it having no relation back, not being registered within fifty days of its date, gives to each of their claims a preference over his mortgage.
TAYLOR, C. J., concurred.
PER CURIAM. New trial.
Cited: Tate v. Brittain, 10 N.C. 56; Cowan v. Davidson, 13 N.C. 534; Hargrave v. Davidson, ib., 535.
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