1789.
For the Defendants, in reply, it was obferved, that the arguments of the adverfe counfel proved the imperfection of human language ; for, never were words more definite, more clear, than thofe in queftion, and yet, it is contended that they do not exprefs the intention of the Legiflature that ufed them. Two general pofitions, however, are to be difcuffed– 1ft, Whether a mortgage not recorded within fix months is abfolutely void? and, 2dly, Whether the creditors can take any advantage which the Defendant himfelf could not? But we truft that the decifion of the firft will be fo plain, that it is hardly neceffary to confider the fecond.
1. The cafes cited from 4 Bac. Abr. and 19 Vin. contain nothing but general obfervations, that where the meaning of the Legiflature is evidently different from the letter of the act, the latter fhall be conftrued agreeably to the former : and this it is not intended to deny. But we contend, that the Legiflature had in view the protection and intereft of creditors, as well as to fecure the rights of thefe ; and there is no juft reafon for giving the one clafs a fuperiority over the other, fince all the bankrupt acts, by which the prefent act may in this refpect be explained, are made to prevent a falfe appearance of property ; by which men may be induced to give credit, as well as to purchafe an eftate.
There muft be fome force given to all the words of the Legiflature, as well as to the words of a deed; and , as the words very in the two acts. 1 State Laws 79. and 520. we muft prefume there was an international variation of the meaning. The cafe from Black. Com. on the 13. of Eliz. c. 10. fhews that the ftatutes was made for the benefit only of the fucceffors of ecclefiaftical bodies; and had no refpect to the party himfelf or to his creditor. But we will meet them on the ftatute of frauds and perjuries, from which they have argued by analogy ; for, are not leafes for more than three years void ? It is faid, that if an agreement to leafe for more than three years is confeffed in an anfwer, the Chancellor, if money has been received, will compel a performance : though we do not admit this doctrine, it does not affect the prefent argument, which turns upon the validity of a mortgage actually executed. A deed of bargain and fale not inrolled, is void. 1 Danv. Abr. 696. 2 Vern. 564. The cafe from Cowp was that of an attempt to commit a fraud, which vitiates every tranfaction.
But, we ftill infift, that where the letter is plain, the Court cannot conftrue is differently. Term. Rep. 101. It would, indeed, be an affumption of a difpenfing power, if the Judges could give relief againft a pofitive act.
Property is the foundation of credit; and hence, with an admirable independence of the prejudices in favor of Engliʃh jurisprudence, one of the firft acts of this Province recognized it as fuch ; fo that by the filent operation of the law for taking real eftate in execution, the whole is, in fact, mortgaged to creditors in cafe of the death of the poffeffor. But where a mortgage is actually exe-
