1789.
cuted in Pennsylvania, the mortgagor remains in possession, although the legal title is in the mortgagee; and hence the necessity for the precautions required by the act of Assembly. The statute of inrollments, 27 H. 8. c. 16. has the same expression; and the construction under that statute is, that deeds of bargain and sale, have no operation to transfer the estate, 'till they are enrolled; but, when that is done, the deeds operate ab initio, by relation, as in the case of letters of administration, or assignments under commissions of bankrupts; and that, as Lord Coke says, by the words of the statute. 2 Inst. 674. But the words of the act of Pennsylvania are in the negative, that no interest shall pass; and, therefore, although the deed may have the effect of a covenant, and be, in many other respects obligatory on the person of the mortgagor, it cannot convey any interest in the land unless duly recorded.
2. But, to notice the second proposition, whether the assignee can derive an advantage to which the assignor would not be entitled, it is clear that the latter may sue his debtor for the benefit of the former: Term. Rep. 619. And, although, generally speaking, the assignor an assignee must stand on the same footing; yet as in the case of an innocent purchasor without notice of a previous conveyance, so in the case of an honest creditor deluded by a fictitious appearance of property, there may be circumstances which place him in a more favorable point of view.
Neither, upon the whole, is there any ground to complain of hardship, for the Legislature, considering the situation of the country, gave ample time for recording deeds, that had been neglected. by the act of the 23rd of September, 1783. 3 State Laws. 226. And the universal understanding upon this subject has been, that a mortgage is absolutely void, to all intents and purposes, if not recorded within the six months prescribed by the law.
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 promised, that 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
