1789.
The queftion was, whether a mortgage, not recorded within fix months, is good againft the mortgagor ? And it was argued on the 5th of January 1788, by Wilʃon and Ingerʃol, for the Plaintiff and Sergeant and Bradƒord for the Defendant.
For the Plaintiƒƒ, it was urged, that, on account of the notoriety of conveyances at common law, they were not liable to fo many frauds as modern alterations in the mode of transferring property tended to introduce. To prevent thefe, however, feveral fulutary ftatutes have been made, which, principally, have in view to protect the rights of honeft creditors, and bona ƒide purchafors. Thus, by the act of Affembly, 1 State Laws 79. it is exprefsly faid that “ no deed, or mortgage, or defeafible indeed, in the nature “ of mortgages, hereafter to be made, ƒhall be good or ʃuƒƒicient
“ to convey or paʃs any ƒreebold or inheritance, or to grant any eʃtate
“ therein ƒor liƒe or years, unlefs fuch deed be acknowledged or
“ proved, and recorded within ʃix months aƒter the date thereoƒ, where
“ fuch land lie, as herein before directed for other deeds:” And upon the conftruction of this claufe the prefent cafe depends.
By a fubfequent act of Affembly, indeed, the neglect or omiffion to record an abʃolute conveyance within fix months, makes it only void againft a fubfequent purchafor, or mortgagee, for a valuable confideration ; 1State Laws 520. but there was abundant reafon to vary the intent and form of the expreffion accompanies the deed, which does not take place on a mere mortgage ; and the object of the Legiflature was, to prevent a flafe and delufive colour of property. Since, then, the mortgage, for want of being recorded within fix months, was not fufficient to convey or pafs any eftate the Plaintiff, or rather his creditors who ufe his name, are entitled, in this action, to recover the money back from the Defendant, that has been paid to him on account of a deed, or inftrument, which the law had previoufly made void and nugatory.
For the Deƒendant, it was contended, that, although the letter of the act was againft him ; the fpirit of it, which is the true guide in the conftruction of laws, was in his favor. It is general rule, that cafe without the letter, if within the mifchief, fhall have the remedy. 4Bac. Abr. 648. Nay, words fhall fometimes be expounded againft the letter, in order to maintain the intent. 19Vin. 519. 1 Black Com. 61. Statutes muft be expounded by a confideration of the previous law, the mifchief complained of, and the remedy provided. Ibid. 512. Now, by the common law, the mortgage would have been good, although not recorded ; and the fole reafon, for calling for a record of the deed, muft be to protect fubfequent purchafors, fince it could be of no confequence to the mortgagor himfelf. The conftruction of this very act, has, in another refpect, been contrary to the letter; for, it requiress, that the deed fhall not only be executed, but acknowledgment, has always been held fufficiently binding on the party. But the authorities to (illegible text)
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