1789.
deed from the Sheriff to the said G. A. Baker, an agreement was made relative to the premisses in case the said mortgage should be adjudged to be valid.That the Defendant, Jacob Wood, at the time of the said purchase made by G. A. Baker, was indebted to the said G. A. Baker, by judgment entered in the Common Pleas of the said county, prior to the aforesaid sale by the Sheriff, and to the Plaintiff's judgment against the Defendant. And that G. A. Baker knew of the said mortgage before the contracting of the said debt to him.
If, upon the whole matter, the Court shall be of opinion that the law is with the Plaintiff, then judgment to be entered for him; otherwise, judgment to be for the Defendant as in the case of a nonsuit.
The question was, whether a mortgage, acknowledge before a justice of the Common Pleas, and recorded by the Recorder of the proper county, subsequent to the declaration of Independence, was void?—the Justice and the Recorder having no other commissions, than those which they had respectively received from the late Governor of the Province, previously to such declaration. <
The case was argued in January term last, by Bradford for the Plaintiff and Biddle, and Ingersol for the Defendant.
For the Plaintiff, it was urged, that, although the statute of 4 and 5. W. and M. c. 20. enacts, that, unless a judgment is docqueted, it shall not affect purchasors; yet judgments have been held good, in a variety of cases, contrary to the letter of the act: 2 Eq. Ca. Abr. 684. And equity will supply a defect in a mortgage. 1 Eq. Ca. Abr. 320. The authorities cited in Levinz v. Will ant. 430. on the point of notice, are equally applicable here: And, even if the Justice would have had no authority to take the acknowledgement of the deed, after notice of the declaration of Independence, the want of such notice is sufficient to justify him. Besides, during the same period a considerable number of deeds were recorded, (which was proved by the Recorder of deeds for the city and county of Philadelphia) so as to render it necessary at least to apply the maxim of communis error facit jus, to cases of this description. Lloyd v. Taylor ant. 17. The mortgage, according to common acceptation, was duly acknowledged and recorded; and, as the record of a mortgage could only be required to give a constructive notice of subsequent purchasors, the spirit and meaning of the law is satisfied by the actual notice which G. A. Baker had of the deed. See 2 Eq. Ca. Abr. 482.
For the Defendant, it was contended, that, in strict law, the acknowledgment and recording before officers whose commissions were expired, did not make a valid acknowledgment and recording of the mortgage; so that by the act of Assembly 1 State Laws 79. the mortgage was absolutely void: And that, in point of equity, as the mortgage might have been recorded in the proper office after the 14th of March, 1777, the Plaintiff had neglected a fair opportunity of giving legal notice of his lien, for want of which the Defendant had been induced to lend his money, and that, there-fore,
